Salvini’s Italy Sentenced by ECHR to Provide Housing for Evicted Roma

The European Court of Human Rights (ECHR) in Strasbourg has decided to apply an urgent measure in the case P.H. and Others v. Italy (application no. 25838/19) concerning three Bosnian citizens of Roma ethnicity who were evicted with their minor children from a settlement in Ponte Riccio in April 2019. The applicants are three Bosnian citizens of Roma ethnicity who were living with their families in a settlement in Ponte Riccio (Giugliano). Two of them are mothers with 10 children altogether, who are minors aged between two and 16.

The Court has ordered the Italian Government to provide suitable accommodation for Romani families who were forcibly evicted from Giugliano last week. The court recognised the right to family unity and the need to provide adequate housing to Romani families. The emergency case was brought before the court by Associazione 21 luglio and the European Roma Rights Centre (ERRC).

Background

On 5 April 2019 the Mayor of Giugliano issued Decree no. 29, ordering that all the settlement’s inhabitants (around 450 Romani People) residing in the Via del Vaticale camp in the Municipality of Giugliano be evicted for reasons of public health and safety. The municipality issued a resolution for alternative housing solutions for Roma, but no proposal was ever made to the families.

On the morning of 10 May 2019, law enforcement arrived and forced the families to leave the settlement on Via del Vaticale. According to numerous testimonies gathered, both before and during the eviction, the Roma had been verbally ordered to leave the Giugliano area and threatened that if they refused, their residence would be cancelled and their children taken into state care (!). The 450 Roma ended up occupying an abandoned area in the Giugliano industrial area, where they remain today.

The new location is totally inadequate

The 73 families currently camped in that area have no shelter, and are forced to sleep inside cars or outdoors, despite the difficult weather conditions. They have no access to electricity and are without clean water or toilets. The 105 children who were attending school were forced to interrupt their school attendance.

Associazione 21 luglio called an immediate press conference at the Chamber’s Press Room and an online appeal to denounce the rights violated by the authorities during the forced eviction, including the rights of these children to an education. They called on the Municipality of Giugliano for an urgent intervention offering adequate solutions and dignified housing for all persons, guaranteeing them access to basic services, and the re-establishment of school attendance for school-age children and, alongside the ERRC, promoted recourse to the European Court of Human Rights.

On 17 May, the decision came from the European Court in Strasbourg which forces the Italian Government to guarantee adequate housing for minors and their families who were evicted from Via del Viaticale.

Organisations‘ comments

Carlo Stasolla from Associazione 21 luglio, who had who had been on hunger strike since 12.5.2019, ended his protest on receiving the court’s decision. He said „This is a victory for marginalised communities all across Italy who, especially in the last year, have had their basic human rights repeatedly attacked. In the situation of Giugliano, Associazione 21 luglio was the first to report the systematic violation of rights and support the families who proposed the appeal to the European Court. For the last 30 years, Roma in Giugliano have been trapped in a vicious cycle of forced evictions, black mail, and fear. Today, Europe has lit a lighthouse that illuminates the whole of Italy and which we all have a duty to keep on: the lighthouse of anti-discrimination and of equal rights guaranteed in articles 2 and 3 of the Italian Constitution that no one, in any capacity, can claim the presumption of extinguishing.“

Jonathan Lee of the European Roma Rights Centre said: „This decision breaks a long-standing cycle of forced evictions which have long plagued this community, and Roma as a whole in Italy. When authorities uproot Romani families, they know it means kids will have to drop out of school, that know that parents will lose work, that the family will be forced to start from scratch, but they do it anyway. The Court has shown today that Italy is not above the law, and cannot indiscriminately make Roma homeless. These people have won a great victory against discrimination, and against the politics of hate, which perpetuates the exclusion of Roma in Italy.“

***

Measures under Rule 39 of the ECHR Rules of Court are decided in connection with proceedings before the Court, without prejudging any subsequent decisions on the admissibility or merits of the case. The Court grants such requests only on an exceptional basis, when the applicants would otherwise face a real risk of irreversible harm. For further information, see the factsheet on interim measures.

The time has come for Theresa May to tell the [British] nation: Brexit can’t be done

By Alastair Campbell, in The Guardian

Courtesy of Guardian News & Media Ltd; www.theguardian.com

The hard-liners in her party will howl with rage, but most of the country will welcome it if the prime minister is honest about Brexit’s awful consequences

Monday 16 October 2017 17.46 BST / Last modified on Monday 16 October 2017 22.00 BST

As she tries to move the Brexit negotiations forward, how much better would Theresa May and the country feel if the speech she made to her party went as follows.

“Leadership is about confronting the great challenges. But Brexit is the biggest challenge we have faced since the second world war. So I intend to devote my speech, in four parts, to this alone.

“First, I want to explain why I voted remain – because for all its faults, the European Union has been a force for good in Europe and in the UK. I believed that our future prosperity and security, and opportunities for our young people, would be enhanced by staying in. Second, I want to explain why, nonetheless, I was something of a reluctant remainer. The truth is, there is a lot wrong with the EU. So though I voted remain, I was not starry-eyed. I was determined that, had we won, we would also fight for reform.

She would get resignations, and vitriol by the bucket-load from the Brextremist media

“Third, I want to explain why I have been trying so hard to deliver the Brexit the people voted for. It was a close result. But leave won. I felt strongly that it was my duty to deliver the only Brexit that I believed could meet the demands of the majority of leavers – out of the single market and the customs union, out of the European court of justice.

“But precisely because I have a profound sense of duty, I want to tell you the absolute truth as I see it. It cannot be done. Yes, you can shout. You can storm out. But I have looked at it every which way. And, as your leader, I have concluded that it cannot be done without enormous damage to our economy, to your living standards, to our public services, to our standing in the world. This is damage I am not prepared to inflict. The cost is too high.

“I will publish the legal advice that I have the right to unilaterally revoke article 50, and if you look behind me you will see the backdrop has gone and instead there is onscreen the letter I will be sending to Donald Tusk and the EU 27 heads of government later today.

“… I am ready for any challenge, confident that finally I will be able to fight for what I believe is the right course for Britain, and confident that once the public have the proper debate we failed to have during the referendum and the election, that my view can prevail in the country.

“The Labour party will also have to make up its mind. Most Labour MPs support the position I am setting out today, though their leadership may need to be persuaded. We may need a general election to settle this. At some point we may need a referendum to reverse the outcome of the first one. I am aware I am launching something here, the course of which is unpredictable. I am prepared to take all the risks attached to that. For I am no longer willing to pretend. I am no longer willing for the delusions of the few to dictate a strategy for the many, when so much is at stake.

“I will also be publishing the sectoral advice papers we have received on the impact of Brexit on all aspects of our national life, so MPs can debate these fully. I know many of you think I might be ill. I feel a lot better now. Because what has been making me ill is the reality of which I have been certain more each day … that Brexit is a disaster, a potential catastrophe for our country. That my duty now is to steer the country to the only sensible decision I can see – a rethink, a change of course: not hard Brexit or soft Brexit, but no Brexit at all.”

Big and bold, I’m sure you will agree. She would get resignations, and vitriol by the bucket-load from the Brextremist media. She might lose her job. Equally, this might be the way to save it. In her Florence speech, May called for more creativity, as though it needed to come from others. This speech is the kind of creativity she needs. It would be the making of her. And most of the country, I am sure, would breathe an enormous sigh of relief.

  • Alastair Campbell was Tony Blair’s director of communications and is editor-at-large of the New European

We will soon start with more early elements of European Armed Forces

French President Macron has, with his speech in the Sorbonne University on 26.9.2017, mentioned some aspects on Europe which, because of the scope of the subject, have been somehow neglected in other EU countries but merit to be discussed in a broader sense. One of them was European defense policy. There are indeed two axes we have to follow in this respect: one is the permanent attempt of withdrawal of the United States, despite some NATO displays in the Baltic region and Eastern Europe, and another is terrorism in all its facets. It is evident that the EU – and not the Member States – has to fight the financing of terrorism and of terrorist cyber propaganda. Some Member States do not take part in these activities, not because they are close to terrorism – no, they are too nationalistic to cede necessary competences to the EU.

The objective of Macron in the field of defense was and is to create a Europe of defense which is able to act on its own behalf, if necessary, and thus completing NATO. Macron spoke of „progress of historical dimensions“ within the last months; indeed things are developing positively since Great Britain is not taken too serious any more, because of Brexit. UK has of course strong, experienced armed forces, but not the will to enhance a Common Defense Policy of the EU, although any one of its Member States would be too weak to do it alone.  And NATO might be not proactive enough, with a US President who first had denied Art. 5 NATO Agreement (the solidarity clause) and with Turkey permanently moving away from NATO. What remains is the EU alone – one has to see this clearly.

Only in June 2017 the European Defense Fund had been created, for a permanent cooperation, for a financing of defense research. above all – we have more than a dozen different guns in the EU, and a myriad of fighter planes, double capacities in navy vessels etc. A lot of money could be spent in defense policy. With this fund it will be like the Schengen Agreement: This was launched by five Member States only, and a couple of years later it became a part of the Amsterdam Treaty for the whole EU.

Macron has also proposed a „common strategic defense culture“ The EU has not been able to act together in a convincing way. Macron sees traditional differences in cultural, historical, parliamentary and general political issues. Indeed, this won’t be changed from one day to the next, but if you don’t tackle this problem the EU would never have a common defense policy.

Macron also proposed a common defense budget for the EU. This could include all the budgets of the Member states plus the one of the EU (which until now is rather small, of course). At first, this does not need a formal approval power of the EU institutions above Member States‘ defense budgets. But a permanent synopsis will create a permanent discussion about the 2% target, about efficiency or inefficiency, about common purchases etc.

This might be a very realistic point of Macron’s speech. Starting informally with a kind of declaratory new budget part in the EU, which may even lie to ist biggest part outide of the EU institutions, is a first step which may be completed later. In the sense of what Ursula von der Leyen, German Minister of Defense, had said, namely that a European Army cannot come overnight but in very many small steps.

In this context, Macron had also proposed – and promised for the own French armed forces – to include into all the Member States‘ armies people from the other Member States. This should be done not according to citizenship but to the country where Europeans live (and to more than basic lanuage knowledge, evidently). This element of a common defense culture should come to reality at the beginning of the next decade – like then in a EU-wide common attempt of intelligence. To bridge the gap between European vision and reality in this respect, he advocated a European Academy of Intelligence. Of course, this is necessary, if you see how the existing mini-structures are treated by most of the Member States.

We need some courage – like the French President – to propose a nucleus of policies which may then become larger and larger. European defense policy is one of them – for defense policy reasons, but also for spending the necessary money, and not more. And of course for the most noble task of armed forces in Europe: to exist in order to be never deployed for their historical purposes.

Hans-Jürgen ZAHORKA

 

 

There Will Be No Brexit. Probably.

By Hans-Jürgen Zahorka

There will be no Brexit. This is my, as a lawyer I can say this, provisional legal opinion. But not only legal, if you commit a general system analysis. Brexit is an objective impossibility, and all this for the following reasons:

From the beginning, I was astonished with what kind of childish stubbornness Brexit was implemented into the British Government’s activities. I know- also in parallel from my own political history – that this was and is done in context with inner-party power struggles, beginning with a totally wrong estimation of the relation between inner-party Tory wings and the population’s position, by former Prime Minister David Cameron. Cameron, and this is the danger of several years being in power at the same position, has lost a lot of ground contact, like Chirac in France when he decided to hold a Referendum on the EU Constitution a year ahead of when this was held – a year where he easily could lose a lot of approval, when an unholy alliance  brought this Referendum to failure. The same thing two times (!) in the Netherlands, when first Prime Minister Balkenende, the guy who looked like Harry Potter, ordered the second Referendum in NL after the first around 350 years or so ago, also on the EU Constitution, which was lost against an unholy alliance, too. The second (or third) Dutch Referendum was lost, when the Government submitted the Ukraine Association Agreement with the EU to a public vote. Not very many people have seen the text of this Agreement nor discussed it. A Referendum is always, in open, democratic societies, in EU countries above all, an invitation to kick the respective government in their ass, and nothing more. Why then some politicians, most at the fringes of the political spectrum, advocate a Referendum in questions where they expect a popular outcry against any government activities? However, we all live in parliamentary democracies, with parliamentary committees where many questions can be discussed and solved, and public hearings for these committees can be held, etc.  I took (actively!) part in British discussions in 1971/1972, right after school when I was invited for several panel discussions by Young Conservatives (and confronted with arguments against the then EEC, like „at one breakfast with a Rhine Army officer’s relative near Münster/Germany one foul egg was served…“). But I think there was more discussion about joining the EEC then, than before the Brexit Referendum to leave the EU.

Anyway, it was a clear deficit by the Tories and their protagonists in leading the debate before the Brexit vote. And nobody in the Government made any clear plans what to do if Brexit were approved – The UK suffers still of this disease, if you see and hear the leading politicians of this country, like David Davis.

Regarding the „system analysis“ arguments, I cannot imagine that British citizens today and collectively are, excuse me, so stupid to vote for their economic down-spiralling, for their loss of influence within or towards the EU, for not being taken serious anymore in the EU, for their world-wide loss of influence (as proven by Theresa May’s and BoJo’s travel & talk attempts in the last months). Everything said in this respect is a big lie, or perehaps „fake news“. And the gain of „control“ to everybody else in the world, by tougher immigration policy also to the EU, which is expected as a tool of new British nationalism means self-isolation and again loss of influence.

And now the British press is fuller than ever with qualified opinions (Nick Clegg) on how to exit the Brexit. British political culture may manage this U-turn, with a lot of what has lacked since 2016: the typical British pragmatism (which lacks totally in the negotiations with the EU). Forecasting attempts in policies should never be linear – like: 1 x voted for Brexit (and this with 37% of the population only!) – there will be the Brexit. This, by the way, is more immanent to a dictatorship, which is not applicable for Great Britain. Linear moves would permit the extrapolation (or intrapolation) of political circumstances, based on a population which is immune to learning. I hope this is not the case with the British. We have already a lot of UK citizens who changed their citizenship, and they are now Germans, French, Spanish, Portuguese etc. And lots of EU citizens have returned to the EU since the vote, and new ones hesitate to go to Britain. This is not typical for an element of a European open society.

In this situation, it cannot be a miracle that Theresa May seems to commit many mistakes. One of the next ones would be not to publish the legal opinions kept in secret until now about the Brexit and its implications – they seem to be good for a U-turn of the Government. While we are in a situation when senior Brussels personalities tell in private „OMG, let the British go, the sooner the better…“, this is clearly the result of the chaotic, unprepared, and probably unfeedbacked negotiation position of UK. It would take the Brexit negotiations with the EU into a year-long, maybe 5 – 8 years lasting negotiation nightmare. In the time between June 2016 and March 2017 any state of the world could and would have been better prepared than H.M’s Government.

Once more: to keep the advantages for UK in the EU Single Market which is and will be seen as necessary for the country, will require a U-turn towards the Brexit. It will take several generations until the British will be as „European“ as the French, the Italians, the Spanish, the Germans etc., but there may be a new agreement between the EU and Great Britain about the continuation of the EU Membership. Until now, I have thought, this can be achieved only by a change of government (which does not necessary mean a Labour one) and a significant change of public opinion. Now I believe it can be started by a change within the Government  This – or the other solution – seems today more likely than ever. Which leads me to the cautiously optimistic opinion that there will be no Brexit at all. If UK ask the European Council to vote for an extension of the March 2019 deadline, it probably will be granted, as first step. However, if the British would come back to the EU, a (francophone) senior Brussels personality has to be quoted: „Alors, s’ils reviennent, c’est la merde que recommence…

Pro-Russian Separatists Run Prisoner Camps in Donbass With Slave Labour

The Ukraine conflict is sometimes on the way of being forgotten, unfortunately. Except when the separatists proclaim a state „Little Russia“ in Donezk and Luhansk, what even the Moscow paper Kommersant brings to a smile and to say that „[this] proclamation … will not bring any big consequences“ (Kommersant, 19.7.2017). Indeed, if the Kremlin would support this „state“, then all Western negiotation partners would have to consider this as withdrawal from the Minsk Agreements. This would kill the Moscow expectation for a certain working relationship to the USA and above all to the EU and its Member States. But this is not even worth a substantial reporting in European media.

But what is worthwhile and should be repeated again and again is the strange way of „rule of law“ followed by the Donezk and Luhansk separatist administrations. This includes, besides everything else, also slave work in the form of forced labour for prisoners of these two „Peoples Republics“.They have to work, if they do not want to be thrown into a kind of dungeon, and they are not paid at all. They just get some tea and cigarettes. With their unvoluntary „assistance“ their wood chucking, welding, quarrying and other very hard work, they make money for the budget of the two „Peoples Republics“ (or of „Little Russia“, as now they call themselves) – amounting to approx. 500.000 EUR  per month. There are, following the investigations of the up to 10.000 prison inmates now many illegally in prison. They have done their time, or they should have been in freedom due to a 2014 amnesty by the Ukrainian President. But this latter seems not to concern the separatists, as they do not accept decisions by the Ukrainian Government or state institutions.

Karte Straflager "Luhansker Volksrepublik" (Ostukrainische Menschenrechtsgruppe)

(Map pf prison camps in The „Peoples‘ Republic of Luhansk, by the East Ukraine Human Rights Group, which helped to reveal These practices)

It is clear that these „gulags“ in nowadays‘ Europe, in an otherwise modernizing state of Ukraine, are not made without – at least – the toleration by the Russian authorities. Like in e.g. Transnistria, another „frozen conflict“ area, the Kremlin pays for most of the budget of the „Peoples republics“ – big Russia pays for „Little Russia“.

The prison camps have been revealed by Sabine Adler, one of the most experienced journalists of public radio Deutschlandfunk in Germany. (see her report, with interviews and photos, under http://www.deutschlandfunk.de/zwangsarbeit-in-ostukrainischen-separatistengebieten-gulags.724.de.html?dram:article_id=390676; there are also PDF links on that page in English and Russian language) She knows Ukraine since many years – as well as the whole system as she studied in Leipzig during GDR times. She had various leading posts in Deutschlandfunk and had worked also for a while as press & communication director for the German Parliament (Bundestag). Several times rewarded prestigious journalism prices, she is high on a list of self-proclaimed media critics from German nationalist or Russian troll orientation. If someone stands not for fake news, it is her. BBC from London raised the same issue.

It is indeed not easy to fight for the rights of the prison inmates in Donezk and Luhansk. While the Ombudswoman of Ukraine manages transports of prison inmates to normal correction centers in Ukraine from Donezk, she did not yet from Luhansk. But to stand for the rule of law which includes human treatment for prisoners, above for those who have served their time, is a permanent request to every responsible lawyer, journalist and pf course politician. In this context, the problem should be seized e.g. by the European Parliament, the EEAS – EU Diplomatic Service and all other EU politicians who from time to time are on their pilgrimages to Moscow.

Hans-Jürgen Zahorka

European Union Foreign Affairs Journal (EUFAJ), http://www.eufaj.eu

Neuer Minister für Brexit-Fragen in May’s Regierung wollte Europäische Union „vollends zerstören“

Steve Baker MP ist seit 17. Juni 2017 neues britisches Regierungsmitglied (als Parliamentary Under Secretary of State at the Department for Exiting the European Union, also Staatssekretär im Brexit-Ministerium) und seit 2010 Mitglied des britischen Parlaments. Der studierte Flugzeugingenieur, der zehn Jahre lang für die Royal Air Force arbeitete (seine Vita ist beschrieben auf der Regierungs-Website https://www.gov.uk/government/people/steve-baker – Zugriff vom 7.7.2017), wird in der britischen Presse auch schon einmal als „fanatischer Pro-Brexit-Konservativer“ bezeichnet (vgl. http://www.dailymail.co.uk/debate/article-4459342/Business-tycoons-make-toast-Brexit-Tory-MP-Steve-Baker.html aus Daily Mail Online, 30.4.2017 – Zugriff vom 7.7.2017, im Artikel „Business tycoons make toast of fanatical Brexit Tory MP Steve Baker“), als er sich von Kontra-Brexit-Geschäftsleuten mit Eiern bewerfen ließ.

Das alles wäre nicht weiter der Rede wert und könnte als übliche Profilierungsversuche britischer Abgeordneter gelten – wenn nicht der Herr Unterstaatssekretär vor einigen Jahren einige Bemerkungen gemacht hätte, die vollkommen in sein Engagement vor dem Brexit-Referendum passen. Diesbezüglich muss sich Frau May fragen lassen, warum sie dieses Regierungsmitglied ernannt hat, während sie mit Engelszungen Freizügigkeit für EU-Staatsbürger nach dem Brexit zusichert, freilich wie von der EU-Kommission festgestellt, in nicht sehr präziser Weise.

Steve Baker MP machte vor einer Konferenz der „Libertarian Alliance“ im Jahr 2010, wie vor einigen Tagen die renommierte britische Tageszeitung „The Independent“ nachwies, Bemerkungen, die für eine Zerstörung der Europäischen Union plädierten (http://www.independent.co.uk/news/uk/politics/brexit-european-union-eu-steve-baker-theresa-may-wholly-torn-down-libertarian-alliance-a7820721.html, Zugriff: 7.7.2017, mit Video; The Independent 3.7.2017, Tom Embury-Dennis, Joe Watts: „Brexit: Minister appointed to negotiate Britain’s withdrawal wants European Union ‚wholly torn down'“).

In seiner Rede bei dieser rechtsgerichteten Einrichtung (die auf dem Kontinent als „ga-ga“ bezeichnet würde, so bizarr ist sie), hatte der jetzige Minister Steve Baker gesagt, die EU sollte „wholly torn down“, also vollständig zerstört werden.  Sie sei ein Hindernis für den Weltfrieden und unvereinbar mit einer freien Gesellschaft („[…he said…] the EU should be “wholly torn down”, before branding it an “obstacle” to world peace and “incompatible” with a free society).

Baker sagt den applaudierenden Zuhörern wörtlich: „I think Ukip and the Better Off Out campaign lack ambition. I think the European Union needs to be wholly torn down.” – Ich glaube UKIP [die zwischenzeitlich fast erloschene Anti-EU- und rechtspopulistische Partei] und die Better Off Out-Kampagne [eine Bewegung aus dieser Zeit, die für einen EU-Austritt warb und das mit der Behauptung, dass dann UK besser dastehen würde] haben nicht genug Ehrgeiz. Ich glaube, die Europäische Union muss völlig zerstört werden“.

Der neue Minister fügte hinzu: Die EU … war dazu gedacht, wirtschaftlichen Nationalismus zu besiegen. Daher ist sie ein Fehlschlag nach ihrer eigenen Definition (“It was meant to defeat economic nationalism, it is therefore a failure in its own terms.“). Und weiter  sagte der Abgeordnete für Wycombe, dr später eine sehr führende Rolle in der Pro-Brexit-Kampagne spielen sollte: „If we wish to devolve power to the lowest possible level, make it accountable and move on into a free society, then it’s clearly incompatible.“ – Wenn wir Befugnisse auf die niedrigstmögliche Ebene herunterdelegieren und diese Ebene verantwortlich machen wollen, und uns in Richtung einer freien Gesellschaft bewegen wollen, dass ist sie […, die EU,…] klar unvereinbar damit.

Diese libertäre Ansicht, ganz im Sinne der Zuhörerschaft, wurde dann noch ergänzt wie folgt: „What I want is free trade and peace among all the nations of Europe as well as the world and in my view the European Union is an obstacle to that.” – Was ich will, ist freier Handel und Frieden zwischen allen europäischen Nationen sowie auf der Welt, und nach meiner Ansicht ist die Europäische Union hiergegen ein Hindernis“. Der Herr Minister sagt also, dass die EU ein Hindernis für den Frieden sei, in Europa und der Welt. .. Spätestens hier wird klar, dass diese Person eine Lachnummer ist.

Da fühlt man sich erinnert an die Worte eines ehemaligen konservativen Ministers, der vor einigen Wochen davon sprach, dass Gibraltar vor den Spaniern ähnlich wie die Falklands zu Zeiten Maggie Thatchers vor den (damals diktatorisch regierten) Argentiniern verteidigt werden müsste. Dies erregte nicht nur in Spanien Kopfschütteln. Beide Äußerungen  indizieren eine gewaltige Realitätsferne.

Jetzt aber ist derjenige, der mit abenteuerlichen Argumenten die EU zerstören wollte, Minister Seiner Majestät. Er hat zwar einige Parlamentskollegen, die davor warnten, dass diese Ernennung die Fähigkeit, gute Verhandlungsresultate zu erzielen gefährden kann – und dies zu einer Zeit, als es die ersten Meinungsumfragen gibt, die als Ergebnis wiedergeben, dass „Remain“ für einen Verbleib in der EU eine Mehrheit bekommen könnte, wenn morgen eine solche Abstimmung stattfände.

Man kann sich keine kontinentaleuropäische Regierung vorstellen, die derartig besetzt würde. Aber vielleicht bedarf es erst eines irrationalen Brexit-Votums (von insgesamt 37% der wahlberechtigten Bevölkerung!), dass so etwas geschieht. Wenn Theresa May mit so etwas kommt und die EU-Unterhändler diesen Mann ernst nehmen, dann dürften sie verdammt gute Schauspieler sein.

Hans-Jürgen Zahorka

 

 

 

Erfolgreiches österreichisches Modell: „EU-GemeinderätInnen“

Seit 2010 gibt es eine Initiative in Österreich, die ich für bemerkens- und nachahmenswert halte im Sinne des Eintretens für die europäische Integration und das Schließen der Lücke zwischen Kommunal- und Europapolitik: Europa-GemeinderätInnen, die unter dem Motto „Europa fängt in der Gemeinde an“ Ansprechpartner für besondere Bildungsmaßnahmen sowie von Fragen der Bürger sind. In Österreich sind es derzeit fast 1.000 derartige Gemeinderäte – von einem bis mehreren pro Kommune. Natürlich gibt es auch Gemeinden, die aus unterschiedlichen Gründen sich nicht beteiligen. In Österreich wurden alle Bürgermeister vom Bundesministerium für Europa, Integration und Äußeres (BMEIA) angeschrieben, die dann einen oder mehrere Gemeinderäte benennen, je nach Willen des Rates. Für diese Gemeinderäte stehen Dienstleistungen zur Verfügung (z. B. Seminare über Europa-Kommunikation ca. 3-4 x pro Jahr, 1-2 pro Jahr Brüssel-Studienreisen, gelegentlich interne Briefings, Workshops zu bestimmten Themen, an denen es ja zur Zeit nicht mangelt, usw.) bzw. die betreffenden Gemeinderäte stehen als Ansprechpartner auch Bürgern zur Verfügung. Österreich hat auch erfolgreich diese informelle Struktur in die italienische Autonome Provinz Bozen-Südtirol „exportiert“.

Das österreichische Bundesministerium für Europa, Integration und Äußeres (BMEIA) steht einer Ausweitung dieses Projekts in andere EU-Mitgliedstaaten überhaut nicht entgegen – im Gegenteil. Man ist auch sehr gerne bereit, konkrete Initiativen zu beraten: Frau Mag. Brigitte Trinkl, BMEIA Wien, e-mail brigitte.trinkl@bmeia.gv.at

Hier die entsprechende Website der EU-Kommission/Vertretung in Österreich: http://ec.europa.eu/austria/news/eu-gemeinder%C3%A4te-br%C3%BCssel-mittlerweile-%C3%BCber-900-teilnehmer-ganz-%C3%B6sterreich_de

Und hier die des österreichischen Bundesministeriums für Europa, Integration ud Äußeres: https://www.bmeia.gv.at/europa-aussenpolitik/europapolitik/oesterreich-in-der-eu/eu-gemeinderaete/

Die Anmeldeformulare für EU-GemeinderätInnen an das BMEIA sind einfache Adressen- und Funktionsbeschreibungen; hierüber wird dann eine Adressdatei gehalten.

Für Deutschland beispielsweise dürfte eine zentralisierte Behandlung dieser Frage durch z. B. das Auswärtige Amt nicht in Frage kommen, sondern eher auf Länderebene bearbeitet durch die jeweiligen Europaministerien der Bundesländer, auf deren Ebene auch die Kommunalaufsicht liegt, oder delegiert an die Städte- und Gemeindeverbände. Auch die Landkreise in Deutschland setzen viel EU-Recht um (z. B. Abfallrecht, Umweltrecht usw.) und sollten hierzulande nicht vergessen werden. Daher ist der Name „EU-GemeinderätInnen“ wahrscheinlich nicht automatisch übertragbar.

Auch dürfte dieses Modell nicht automatisch anwendbar sein, wenn z. B. in größeren Kommunen bzw. Landkreisen Europabeauftragte bzw. -referenten o.ä. vorhanden sind (also professionelle Kräfte der Verwaltung). Andererseits sind diese vielleicht auch daran interessiert, eine Verbreiterung ihrer Tätigkeit im Gemeinderat bzw. Kreistag zu sehen bzw. dort informationsmäßig privilegierte Ansprechpartner zu haben. Wenn die kommunale Ebene stärker europa-durchdrungen ist, ist dies auf jeden Fall kein Nachteil (zumal es eine Fülle von für Kommunen relevanter Projekte und Themen gibt, wo man „good practices“ entnehmen kann). In jedem Fall eignet es sich für kleinere Kommunen und Landkreise ohne eigenen Europareferenten.

Theoretisch wäre es auch möglich, dass die Europe Direct-Informationszentren (EDIC) Koordinationsfunktionen übernehmen, bzw. Seminare für EU-GemeinderätInnen abhalten (wie in Österreich). In Österreich arbeitet die Vertretung der EU-Kommission erfolgreich, z. B. das eine oder andere Seminar fördernd, mit den EU-GemeinderätInnen bzw. dem BMEIA zusammen; auf der Basis eines einfachen MoU (Memorandum of Understanding) aus dem Jahr 2010.  So etwas sollte auch in Deutschland möglich sein, auch in Kooperation mit den relevanten Landesministerien. Dann wären es eben statt einem MoU in Deutschland maximal 16.

Damit wären auch für alle, die sich mit der Kommunikation zum Thema Europa befassen, auf einen Schlag wichtige Ansprechpartner in den Kommunen gegeben, auch für die Europa-Union-Landes- bzw. Kreisverbände oder für die vielen Einrichtungen für politische Bildung (Landeszentralen, Stiftungen usw.). Europa hat es verdient, konstruktiv überall vertreten zu werden, auch auf Gemeindeebene, wo es eben zahlreiche Anknüpfungspunkte zu Europa gibt – von Umwelt-  über Abfall-, Veterinär-, Verbraucher- zu Verkehrs-, Digitalisierungs- und Freizügigkeitsnormen, aber auch die Integration unserer neuen ausländischen Mitbürger u.v.a.m. Etwa 70 – 85% allen EU-Rechts (je nach Sichtweise) wird auf kommunaler Ebene (in Deutschland also Gemeinden und Landkreise) umgesetzt. Nur wenige wissen dies, und wir hätten mit Sicherheit eine noch stärker regulierende Wirkung auf nationaler Ebene ohne EU-rechtlichen Beitrag der (supra-)nationalen Ebene.

Für die gesamten Aktivitäten in Österreich gibt es übrigens keine eigene Budgetlinie der dortigen Bundesregierung; etwaige Ausgaben sind dort Teil des Kommunikationsbudgets. Fahrten nach Brüssel bezuschussen das Europäische Parlament, die EU-Kommission bzw. der Ausschuss der Regionen.

Ein gelungenes Experiment, das also auch in andere Länder „importiert“ werden sollte. Ohne schwere Strukturen, leicht zu bedienen durch einen (Ministerial-)Referenten, der gelegentlich Hilfe braucht. Nicht die Lösung aller Probleme dieser Welt, aber ein kleiner Beitrag, Europa zu kommunizieren. Es lohnt sich, wie wir in den letzten Monaten in der Europäischen Union gesehen haben.

Hans-Jürgen Zahorka

 

The Result of Nationalism – Great Britain Might Have to Fear Dissolution

After Tito’s death, Yugoslavia was for a while headed by Milosevic, who was a staunch nationalist. He started with mild and ended with wild attacks against his own peoples. The result: Yugoslavia had been dismantled by themselves, and the historical core is now Serbia. Macedonia, Montenegro, Croatia, Slovenia, Bosnia-Herzegovina split off as independent states, and so did Kosovo, after a particularly bloody and cruel war against them. Still today Serbia claims that Kosovo is a part of its state territory, a more hypothetical claim. Yugoslavia, a country with approx. 25 mill. inhabitants, ended up in seven independent countries, of which Serbia, the ex-Yugoslavian core, has around 8 millions.

There are also many historical examples of secessions, also in Europe, or of intended secessions, at least by a part of the population – like Catalonia or the Basques from Spain, where the will to go for one’s own is already anchored in the center of the political spectrum. This was and is triggered by the impression of lacking dialogue and what is called nationalism by the central state. In turn, it triggered nationaism in the periphery of the country. While Madrid can have hope, as there is a constructive discussion about the role of the state and in the direction of a de-facto-federalism, Yugoslavia ended in wars and armed conflicts and therefore broke in pieces. Now the perspective of the European Union is a kind of federalist vision for the citizens of the Balkan states, identified with peace, freedom, human rights, the rule of law, and a functioning economy.

How Great Britain will develop? For London, there is the big danger that if the British Government stresses national issues too much, then parts of the UK like Scotland or Northern Ireland may be lost. This would have also repercussions on Wales. Why? It became evident with the Brexit referendum that from England there was exercised too much pressure (or power) for the whole country, e.g. by the simplified form of the referendum question. At the same time, this discussion is held, or tolerated, by the Government, in a nationalist mode. Let us remember only the sounds of Lord Howard, a leading Tory, when threatening Spain wit a British Armada comparable to the one to the Falklands many years ago under Mararet Thatcher. Incredibly, he forgot to mention that the latter wa the case as Argentinian dictatorship troops occupied the Falklands, and Gibraltar was never occupied by the Spanish. The Spanish only wanted, with full justification, a clear position of the UK in the Brexit talks, on the issue „Gibraltar and Single Market“, which is for evident reasons of high interest for Spain. Should they re-start with border controls? Gibraltar has voted with more than 95% against Brexit, and it was for decades not part of the EU, as the UK Government determined so, and became a member of the EU (as part of the UK) only after a European Court of Justice decision initiated by ist own government.

History shows us that enlightened, democratic Europeans are well able to replace their home capital by a regional capital (until now) and the European fabric above – a fabric which is neither imperialist nor violent nor nationalist. This fits excellently to the case of Scotland and Northern Ireland, which might break away from Great Britain in the vears after the Brexit. However, it might occur that Brexit won’t happen, as there may be grave economic distortions to the detriment of the UK. I am still full of hope of a kind of peaceful revolution by the people who should know it: scientists, university people, youth, company owners – and if you look at the Brexit results, altogether the open and more intelligent people.

The result of the equation „the more nationalist, the more states at the end“ might be followed at a significant change in the European map, like in Yugoslavia. This is undoubtedly the long-term tendency. If you listen to some Brexiteers, you can express your pity that due to the bloody EU they were not any more able to go tiger-hunting for the weekend to Eshnapur.

On the long term, the overall trend is against the national states in the EU – which all come from a certain period in the past. They will continue to serve as administrative levels – no problem with this. Because who is in an overall love to his respective administrative levels, e.g. the Regierungspräsidium Tübingen (which is one of my administrative levels) …  So in order to prevent the breakup of other countries, we need sound regional competences, a European federalism (with the subsidiarity principle!), and, why not, constitutional and cultural patriotism. But no nationalism at all. In four day, the French people will have defeated these ghosts from the past, after the Austrians, the Dutch, and the next ones will be the Germans in September 2017.

Hans-Jürgen Zahorka (European Union Foreign Affairs Journal)

http://www.eufaj.eu

 

 

 

 

Azerbaijan’s Government Attacks European Principles of Parliamentarism

Illustrated with a charismatic picture of an Azerbaijani civil servant, the Azerbaijan press agency APA reported on 22.2.2017 on a new case for them. Plese see the original text of this press agency release here:

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Prosecutor General’s Office: „A criminal case was launched against members of the European Parliament“

Azerbaijan has announced an international arrest warrant for European Parliament members (EP) Frank Engel (Luxembourg), Eleni Teoharus (Cyprus) and Jaromir Stetin (Czech Republic) for the monitoring of the „referendum“ in Nagorno Karabakh, spokesperson of the Prosecutor General’s Office Eldar Sultanov told APA.

Azerbaijani General Prosecutor’s Office instituted criminal proceedings against the foreigners who have committed an illegal visit the occupied territories of Azerbaijan, also sent a corresponding request to Interpol for their announcement on the international wanted list, said on Wednesday the press service of the Prosecutor General.

“A criminal case has been launched against the members of the European Parliament under the relevant articles of the Criminal Code for repeated illegal visit to the occupied territories of Azerbaijan, in particular, on suspicion of illegal visit to Nagorno Karabakh to participate in the so-called “referendum” as the “observers” on February 20,” Prosecutor General’s Office said in a statement.

In addition, the accused European parliamentarians charged for conducting propaganda of seperatist entity called „Nagorno Karabakh Republic“, illegal participation in the activities organized in those territories, and presenting illegal entity in the occupied territories of Azerbaijan as an independent republic.

“The court decided to arrest F.Engel, E.Teoharus and J. Stetin and they have been declared internationally wanted through Interpol,” the report says.


This constitutes an incredible attack on European parliamentarism. Three Members of European Parliament went as observers to a referendum. There were around 100 international observers at the constitutional referendum in Nagtrono-Karabakh from 20.2.2017, according to the result of the referendum now called Artsakh, which should regulate the circumstances how the people there live in the future. Artsakh is not recognised by any other country, but it works together with institutions all over the world (like e.g. Kosovo  in a phase of its history) and, in a strong contrast to Azerbaijan itself, it can be considered to be, in grosso modo, a democratic community, which in the region maight be topped only by Georgia. This is a positive sign, but for the Azerbaijan government it seems to be a bad sign: They do not let their people live in a freedom like it is the case in the disputed territory of Artsakh. There no state harrassment is known to bloggers, critical journalists, opposition members etc., as it is the case in Azerbaijan, who even has managed institutions in the EU to have compiled a list of their political prisoners. Azerbaijan, after all, is not only the most corrupt regime among the Council of Europe Member States, but it is also the most repressive, where it seems to have doubled now Belarus. Only their brother state Turkey has has imprsoned more journalists at present, but it has also more than 10 x the population.

What can the EU do?

The three arrtest warrants are, of course, ridiculous. They also include that the accused European parliamentarians [are] charged for conducting propaganda of seperatist entity called „Nagorno Karabakh Republic“. This is a propaganda notion like e.g. in Turkey  „terrorism“ is used for opposition members, or as it was used in Soviet times, but definitely not in an open society. And it should be reminded that OSCE was compelled to cancel their own observer mission for the Azeri parliamentary elections in autumn 2015 (see also  http://www.osce.org/odihr/elections/azerbaijan/181611).

The warrants might be enforced by states who „just want to do a favour“ towards Azerbaijan. Belarus did so some weeks ago in the case of the Russian-Israeli blogger Lapchin who was extradited to Azerbaijan (…just to have some conversations with the police…“). This would be an incredible violation of free parliamentarism. Any European parliamentarian, and not only in the EU parliament, has the right to observe whatever  election or vote may be held anywhere in the world, if he was invited (which was the case). I have to add, also if not. To observe an election or a general vote like a referendum is a good tradition among democracies or not-so-advanced democracies, anyway it is a good sign for popular vote and people’s power. That this is attacked under the pretexts used by the Azeri government is an incredible attack on free parliamentarism. This should be solved under political auspices only, by discussions, debates, parliamentary actions. The fact that Azerbaijan reduced their actions to criminal procedures shows only the nervousness of a regime who cold not do anything – due to their commitment to gas and oil extracrtion only and a lack of economic diversification – against an economic and monetary downturn, and who did not really manage to overcome the disparities between the capital and rural  areas. Instead of this, it buys arms by the billions (euros) from Russia and exercises regularly a belligerous language aganist their neighbour. It is the European country with the worst state branding policy, with a too transparant „caviar diplomacy“ and corruption towards third countries as well – see the present investigation in the Council of Europe Parliamentary Assembly member Volonté who is under suspicion to have got 2,4 mill. euro from Azerbaijan sources.

The EU could – and should – after all, besides a clear resolution by the European Parliament, first suspend all talks with the Azeri government until the arrest warrants would be withdrawn formally.

If necessary, it can approach all third country governments and ask them whether they will follow to implement this international arrest warrant by Azerbaijan. This should be confirmed by any other government, as it is not clear if legal procedures will be correct in some of these states – see the extradition of Lapchin from Belarus. This should be launched in an official diplomatic note. It is a chance to enhance EU common foreign policy – and also European parliamentarism, which cannot be forced to meet the level of what is consicdered as parliamentarism by Azerbaijan.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal

 

 

Finally: The EU Reacted Strongly. United we Stand, Divided we Fall.

Finally, the EU has reacted in a rather strong way. Today, 31st Jan., 2017, in the afternoon the EU Council President, the former Polish Prime Minister Donald Tusk, wrote an open letter to his 27 colleagues, as a Jingle for the forthcoming EU Summit Meeting in Malta next weekend. I wish this letter a world-wide distribution, and it goes exctly in the direction of two articles of John Feffer, Foreign Policy in Focus from Washington D.C., and myself in the next EUFAJ which will appear in some days. What is Donald Tusk’s letter about? Here is the full text:

„Dear colleagues,

In order to best prepare our discussion in Malta about the future of the European Union of 27 member states, and in light of the conversations I have had with some of you, let me put forward a few reflections that I believe most of us share.

The challenges currently facing the European Union are more dangerous than ever before in the time since the signature of the Treaty of Rome. Today we are dealing with three threats, which have previously not occurred, at least not on such a scale.

The first threat, an external one, is related to the new geopolitical situation in the world and around Europe. An increasingly, let us call it, assertive China, especially on the seas, Russia’s aggressive policy towards Ukraine and its neighbours, wars, terror and anarchy in the Middle East and in Africa, with radical Islam playing a major role, as well as worrying declarations by the new American administration all make our future highly unpredictable. For the first time in our history, in an increasingly multipolar external world, so many are becoming openly anti-European, or Eurosceptic at best. Particularly the change in Washington puts the European Union in a difficult situation; with the new administration seeming to put into question the last 70 years of American foreign policy.

The second threat, an internal one, is connected with the rise in anti-EU, nationalist, increasingly xenophobic sentiment in the EU itself. National egoism is also becoming an attractive alternative to integration. In addition, centrifugal tendencies feed on mistakes made by those, for whom ideology and institutions have become more important than the interests and emotions of the people.

The third threat is the state of mind of the pro-European elites. A decline of faith in political integration, submission to populist arguments as well as doubt in the fundamental values of liberal democracy are all increasingly visible.

In a world full of tension and confrontation, what is needed is courage, determination and political solidarity of Europeans. Without them we will not survive. If we do not believe in ourselves, in the deeper purpose of integration, why should anyone else? In Rome we should renew this declaration of faith. In today’s world of states-continents with hundreds of millions of inhabitants, European countries taken separately have little weight. But the EU has demographic and economic potential, which makes it a partner equal to the largest powers. For this reason, the most important signal that should come out of Rome is that of readiness of the 27 to be united. A signal that we not only must, but we want to be united.

Let us show our European pride. If we pretend we cannot hear the words and we do not notice the decisions aimed against the EU and our future, people will stop treating Europe as their wider homeland. Equally dangerously, global partners will cease to respect us. Objectively speaking, there is no reason why Europe and its leaders should pander to external powers and their rulers. I know that in politics, the argument of dignity must not be overused, as it often leads to conflict and negative emotions. But today we must stand up very clearly for our dignity, the dignity of a united Europe – regardless of whether we are talking to Russia, China, the US or Turkey. Therefore, let us have the courage to be proud of our own achievements, which have made our continent the best place on Earth. Let us have the courage to oppose the rhetoric of demagogues, who claim that European integration is beneficial only to the elites, that ordinary people have only suffered as its result, and that countries will cope better on their own, rather than together.

We must look to the future – this was your most frequent request in our consultations over the past months. And there is no doubt about it. But we should never, under any circumstances, forget about the most important reasons why 60 years ago we decided to unite Europe. We often hear the argument that the memory of the past tragedies of a divided Europe is no longer an argument, that new generations do not remember the sources of our inspiration. But amnesia does not invalidate these inspirations, nor does it relieve us of our duty to continuously recall the tragic lessons of a divided Europe. In Rome, we should strongly reiterate these two basic, yet forgotten, truths: firstly, we have united in order to avoid another historic catastrophe, and secondly, that the times of European unity have been the best times in all of Europe’s centuries-long history. It must be made crystal clear that the disintegration of the European Union will not lead to the restoration of some mythical, full sovereignty of its member states, but to their real and factual dependence on the great superpowers: the United States, Russia and China. Only together can we be fully independent.

We must therefore take assertive and spectacular steps that would change the collective emotions and revive the aspiration to raise European integration to the next level. In order to do this, we must restore the sense of external and internal security as well as socio-economic welfare for European citizens. This requires a definitive reinforcement of the EU external borders; improved cooperation of services responsible for combating terrorism and protecting order and peace within the border-free area; an increase in defence spending; strengthening the foreign policy of the EU as a whole as well as better coordinating individual member states‘ foreign policies; and last but not least fostering investment, social inclusion, growth, employment, reaping the benefits of technological change and convergence in both the euro area and the whole of Europe.

We should use the change in the trade strategy of the US to the EU’s advantage by intensifying our talks with interested partners, while defending our interests at the same time. The European Union should not abandon its role as a trade superpower which is open to others, while protecting its own citizens and businesses, and remembering that free trade means fair trade. We should also firmly defend the international order based on the rule of law. We cannot surrender to those who want to weaken or invalidate the Transatlantic bond, without which global order and peace cannot survive. We should remind our American friends of their own motto: United we stand, divided we fall“.

I really like this Open Letter – finally the EU gets a spine of steel. Donald Tusk Shows that he is a leader, and I hope he remains still a while in his present Job in the future, too.

It is not by chance that Donald Trump is mentioned in one line with questionable presidents like the ones in Turkey or Russia. This is really a shame for an American president. We all in Europe should not be passive in the attempts of the conscient Americans to stand and finally overcome this Person. He has so Little political and civic education, that his advisors seem to have free way, much to the pleasure of the president who thinks he can run a complicated state like a billionaire’s shop.

What is worst: The US have always been at the side of European integration, and of course we had some small difficulties, but this is normal in families. In families who share the same values, also internationally. In the last years of the Soviet Union, in the 1980s, there was a big discussion in Europe about so-called „equidistance“ of Europe, towards the USSR and the USA. In Europe, it was clear that we may be geographically closer to the first ine, but value-wise closer connected to the US. Now we know: We stand alone – and we will not give up, now more than ever, to tell the world that it is worth while to have an open society, of immigration and emigration (many famous US companies would not exist if today’s travel bans would have existed!), a social market economy, and a clear concept of the togetherness in the world. What the Republicans do at present, is adventurous, and it shows that the political coordinates cannot be considered parallel at all, between Europe and the USA. This not yet a cultural fight, but serious cultural differences – and it is indeed a matter of education, of being open to other cultures and countries. Let us work in the suitable way in keeping contact with „enlightened“ Americans, who think apriund the Corner, and let us prepare the day, when Trump is „shot down the tube“ by the voters, or by an impeachment before, what I do not exclude, if you see the exhaust of his companies.
Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal
http://www.eufaj.eu

 

 

 

 

 

 

 

Ertragssteuern und Europäische wirtschaftliche Interessenvereinigung (EWIV)

Dieser Blog-Post wurde geschrieben, als wir noch kein paralleles, eigenes EWIV-Blog hatten. Sie finden ihn unter http://ewivinfo.wordpress.com, Dort gibt es eine ständig steigende Anzahl interessanter Beiträge zum Thema Europäische wirtschaftliche Interessenvereinigung (EWIV) und ihre rechtlichen, steuerlichen und betriebswirtschaftlichen Aspekte, alles unter der Ägide des Europäischen EWIV-Informationszentrums.

29.8.2018

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Unser Blog verzeichnete in den letzten Wochen immer wieder Aufgriffe auf einige ältere Hinweise auf Workshops des Europäischen EWIV-Informationszentrums, einen  losen Zusammenschluss von EWIV-Experten aus Recht, Wirtschaftswissenschaften, Steuerlehre und dies aus mehreren EU-Ländern. Die Europäische wirtschaftliche Interessenvereinigung (EWIV – auf Deutsch, in den anderen 24 EU-Amtssprachen entsprechend) ist eine EU-weite Kooperations-Rechtsform aufgrund EU-Recht und wird in der EU-Verordnung 2137/85 geregelt (dieser Text und viele andere Informationen können auf http://www.ewiv.eu abgerufen werden). Um unseren Blog-Lesern Anrufe zu ersparen, hier einige grundlegende Informationen:

  1. Wie erwähnt, ist eine EWIV eine Kooperations-Rechtsform zur transnationalen Zusammenarbeit, also mindestens zwischen zwei Mitgliedern aus zwei verschiedenen EU-Staaten (+ die drei EFTA-Staaten des EWR: Liechtenstein, Island und Norwegen). Das heisst: Wer keinerlei leicht, etwa mit Dokumenten nachweisbare europäische Kooperation nachweisen kann, sollte auch keine EWIV gründen bzw  betreiben. Die Gefahr ist sonst groß, dass die Finanzämter (die in der EU ständig besser grenzüberschreitend zusammenarbeiten) feststellen, dass einer der Mitglieder eine „leere Hülse“ darstellt (Zitat aus einer baden-württembergischen Außenprüfung, wo eine deutsche GmbH mit ihrem spanischen Partner, einer Comunidad de bienes auf Mallorca, keinerlei Zusammenarbeit pflegte). Die Folge kann sein, dass bis zur Verjährungsgrenze (also mindestens 10 Jahre retrospektiv) die EWIV rückabgewickelt werden kann. Dies also zum sog. Transnationalitätserfordernis, das allerdings bei den wenigsten Finanzämtern bekannt und bewusst ist – allerdings von den Finanzgerichten aufgegriffen werden könnte. Es kann damit gerechnet werden, dass dies in den nächsten Jahren allgemein bewusst werden könnte und dann entsprechend zurück geprüft wird.
  2. Eine EWIV hat immer Unternehmereigenschaft (vgl. auch das Schreiben des Bundesministeriums der Finanzen von 1988 zur EWIV, ebenfalls auf http://www.ewiv.eu). Das bedeutet, dass eine EIWV, die ja auch in  den Handelsregistern Abt. A in Deutschland eingetragen wird (und somit als Personengesellschaft gilt, die im Übrigen keine Publizitätspflicht kennt), z.B. den Grundsätzen ordnungsgemäßer Buchführung (GoB) des HGB unterliegt. In der Praxis – durchaus sanktioniert von Finanzämtern in Deutschland – genügt eine einfache Einnahme-Überschuss-Rechnung, bei Umsätzen bis 500.000 EUR jährlich, oder bei einfachen Buchungsvorgängen. Erst ab diesem Limit muss man eine (Handels-)Bilanz anfertigen.
  3. Eine EWIV darf keinen Gewinn aufweisen – dies steht in den meisten Gründungsverträgen und ergibt sich auch aus Art. 40 der EU-VO (die eigentlich EWG-Verordnung heisst, da sie im ersten Entwuf 1970 angefangen wurde, aber der Einfachheit halber hier EU-VO genannt wird). Dieser Art. 40 besagt, dass eventuelle Überschüsse der EWIV nicht bei dieser zu versteuern sind, wenn sie an die Mitglieder aufbezahlt werden. Diese Mitglieder müssen dann diese Einnahmen (aus Beteiligung z. B.) versteuern, wo auch immer sie sitzen. Dabei können diese Auszahlungen über das Jahr verteilt oder auf einmal erfolgen, und sie können nach Köpfen oder „asymmetrisch“ erfolgen (also entsprechend Projektanteilen, nach Messgrössen wie z. B. Umsatz, Mitarbeiter o. ä.).
  4. Eine Möglichkeit aber ist auch die Bildung von Rücklagen, die bei der EWIV als „Reservefonds“ bezeichnet werden. Diese sollten in einem Rücklagenbeschluss genauer bezeichnet werden, z. B. …. EUR für ein Seminarzentrum am Lago di Garda etc. Aber auch zukünftige Kosten wie z. B. die Anschaffung von Pkw, die Webseite, allgemeine Bürokosten usw. können Gegenstand von derartigen Rücklagen sein. Derartige Rücklagen sind selbstverständlich von den Finanzämtern zu akzeptieren – dies geschieht auch. Wenn allerdings eine EWIV stets Jahresumsätze von 150.000 EUR generiert und dann plötzlich eine Million auf dem Rücklagenkonto aufweist, ist dies erklärungsbedürftig bzw. muss schlüssig erklärt werden können. ACHTUNG: Die deutschen Steuerbehörden akzeptieren derzeit mehr und mehr Investitionsrücklagen. So ist seit 2016 beim Investitionsabzugsbetrag (IAB) nicht mehr obligatorisch (und dieser endet bei 200.000 EUR), einzelne Wirtschaftsgüter einzeln zu benennen. Voraussetzung ist eine Steuererklärung per Datenübertragung.
  5. So gesehen, bezahlt eine EWIV also – bei korrekter Buchhaltung – weder Körperschafts- noch Gewerbesteuer. Voraussetzung hierfür ist aber, wie erwähnt, dass der Jahresabschluss der EWIV „null auf null“ ausgeht. Wo im Übrigen EWIV Gewinne ausweisen (manchmal geschieht dies, weil unwissende Steuerberater oder Buchhaltungsbüros dies so ausweisen, zum Teil auch aufgrund veralteter IT-Programme), müssen sie diese versteuern. Gleichzeitig machen sie sich auch automatisch zum IHK-Mitglied (mit allen Beiträgen) und bei der Kommune gewerberegisterpflichtg, wovon sie ansonsten befreit bleiben.
  6. Ansonsten bleibt eine EWIV natürlich steuerpflichtig bei allen anderen Steuern, z. B. Lohnsteuer, Kfz-Steuer, Grundsteuer, Grunderwerbssteuer, aber auch Umsatzsteuer. Sie ist in diesem Zusammenhang als ganz normales Unternehmen anzusehen.
  7. Wir machen sicherlich auch in 2017 einen oder mehrere Workshops zu diesem Thema und werden hierauf hinweisen. Wir werden auch in den nächsten Tagen ein Blog nur für EWIV-Fragen eröffnen, wo in qualifizierter Weise auf Fragen eingegangen wird – und nicht, wie seltsame Unternehmensberater implizieren, auf „Null-Steuern mit EWIV“ oder ähnlichen Unsinn.

Zwischenzeitlich stehen wir gerne zur Verfügung, falls es für präzise Fragen nötig sein sollte. Unsere E-Mail: ewiv@libertas-institut.com. Und wir können auf 25 Jahre Erfahrung und mehr als 330 gegründete EWIV zurückschauen.

Hans-Jürgen Zahorka, Assessor jur.

Leiter des Europäischen EWIV-Informationszentrum, http://www.ewiv.eu

 

 

 

EU trade agreements: Away with the unanimous vote in the EU Council

For mainly internal policy reasons (state savings, the possible heritage of the present Belgian Prime Minister by a Walloon politician…, etc.) the internal Belgian conditions have not been met – at least for Friday, 21.10.2016, 12.21 h) – that Belgium can sign the Canadian-EU trade agreement CETA. So, a small part of the EU population, namely less than one percent, has until now blocked successfully a breaking EU trade agreement. This goes in one hand with the rising number of protectionist measures, as counted by the World Trade Organisation (WTO), in all parts of the world, and Plays in favour of those populists in the whole EU who are against Integration and the EU and in favour of an exaggerated subsidiarity principle, by means of regional votes for upper competences, by referendum etc. How to avoid the possible consequence – and one of those  m u s t  be seized – on future trade and other agreements in the external field of the European Union?

The EU makes itself ridiculous, and from now on (and this is a very nice view) the EU has to calculate with the fact that one region or a country can indeed block, or blackmail?, the rest of the EU. This in a time when the Canadian-EU trade agreement CETA will be needed urgently, also as an example for other bilateral agreements. And this with Canada, which is the most similar partner to the EU overseas, sharing fully European values, always understanding the EU, and not with e.g. Pakistan, China or other countries who are also likely one day for a trade agreement, but do not share European values, like democracy, human rights, our parliamentary system etc.

Belgium should and must remain a federal state; this has to be underlined. Federalism is an excellent means to defuse many tensions immanent in a state. But federalism can also be exaggerated (and the Germans have a certain experience with that).  An exaggeration is that Belgium which has normally the sole competence in external relations negotiations needs an approval by each of the four regional parliaments. This even in the case when the EU, to which the external trade competence had been delegated has negotiated for seven years a complicated trade agreement.

It can clearly be doubted that every Walloon who now thunders against CETA has even read the text. It can be estimated that the Walloons profit now of a system which has foreseen all situations but this one – a clear „beautiful-weather system“. But sometimes it rains also, and then the EU and the Member States need umbrellas.

So the changes for a likewise situation have to be inserted at a place where a certain balance is necessary. This means clearly: The EU Council should change as fast as possible its unanimous vote in this kind of trade agreements into a qualified majority vote, at least.

A qualified majority would mean that in most of the cases the criteria for any vote would remain. But it would ease the possible pressure on any Member State „from below“ (and the EU has also a lot of experience herewith). As the EU has mended its potholes often after similar „incidents“, the time is now good for this.

The EU is in a very crucial phase for its common foreign and security policy: The refugee quotas, the Brexit, the Dutch referendum on the Ukraine-EU Association Agreement, the EU-USA trade agreement TTIP, the discussion about the Russia sanctions (which however is not yet dividing the EU decisively), etc., but now also CETA – these are all open issues, among many others, where the EU reached in very short time a clear division and not the necessary unity. It is easy: If the EU wants to have a common foreign, in particularly foreign trade policy (and experience shows that this was up to now an excellent way which never had to be discussed), a transition into a qualified majority vote will be indispensable. Otherwise, the tradition phrase about the EU „Economically a giant, politically a dwarf“ must be changed into „Politically a dwarf, economically a dwarf“. Nobody in the EU can accept this, not even the staunchest Walloon. For the Single Market, the European Single Act from 1986 has brought a qualified majority which was good, now it is the external dimension of this Single Market which is overdue.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal – . http://www.eufaj.eu

 

OSCE Peacekeepers for Eastern Ukraine?

The Chief Editor of European Union Foreign Affairs Journal, Hans-Jürgen Zahorka, will publish in a few days, in the next issue of EUFAJ (2/2016) this short comment on the question of OSCE peacekeepers in eastern Ukraine. They are – and will be – discussed in OSCE circles, in particular regarding the Minsk II Agreement on Ukraine, and the local elections in Eastern Ukraine. See the whole artcle (and others) in the week after the 9.5.2016 under http://www.eufaj.eu. The author had also contributed to a booklet: Ofelya Sargsyan/Hans-Jürgen Zahorka,  OSCE – Idea, Histoty, Challenges (with documents), with a short overview about the possible future of OSCE (see also http://www.libertas-institut.com/wp-content/uploads/2016/01/flyer-OSCE.pdf)

Should there be peacekeepers stationed in eastern Ukraine? With what kind of mandate, and how long? This question is examined also now in the framework of the Organisation for Security and Cooperation in Europe (OSCE), although not (yet?) officially. Russian peacekeepers alone are excluded, EU peacekeepers probably as well, and NATO peacekeepers too. Peacekeepers should be accepted by all the parties of a conflict. Whether this would be the case of OSCE armed personnel might be written in the clouds, but it is good that this possibility has been and will be discussed.

This led to a statement by a spokesperson of Germany’s Federal Foreign Office on alleged plans for armed OSCE mission to eastern Ukraine, on 27 April 2016. Germany is holder of the 2016 OSCE Chairmanship, and issued the following statement in Berlin in response to reports on alleged plans for an armed OSCE mission to eastern Ukraine: „The OSCE monitoring mission currently in place in eastern Ukraine is a civilian, unarmed mission. This was decided by the 57 participating States of the OSCE, and neither Germany nor France are involved in any agreement about changing the civilian nature of the mission – neither within the OSCE nor in the Normandy Format („N4“ – France, Ukraine, Russia, Germany).

It is true that we have, in our capacity as Chair of the OSCE and following consultations within the Normandy format, asked the Secretariat to develop options for improving security at the planned local elections. It is too early to say what the findings will be.

Without wishing to pre‑empt any decision, we can say that we find it difficult at this time to imagine what an armed OSCE mission might look like, that had the objective of effectively ensuring the security of the elections in the separatist areas and enhancing the security of OSCE observers. The OSCE currently has no precedent for an armed mission. On the contrary, being civilian in nature is a particularly important feature of OSCE monitoring missions, which require the consent of conflict parties to operate. When you take the idea of an armed mission to its logical conclusion, it raises a whole range of difficult legal, political, practical and military issues. We plan to arrange another meeting in the Normandy format in the foreseeable future, which will include the foreign ministers. A meeting of this kind would be the right opportunity to raise all the issues relating to the OCSE monitoring missions for discussion among the Normandy partners.“

In the background was a condemnation of threats against OSCE monitors in Ukraine: OSCE Chairperson-in-Office and German Foreign Minister Frank-Walter Steinmeier also on 27 April 2016 had expressed concern following the recent increase in ceasefire violations in Eastern Ukraine and the growing number of incidents involving OSCE monitors. Referring to recent threats against the OSCE Special Monitoring Mission (SMM) to Ukraine, Steinmeier had declared: “The SMM is a civilian, unarmed mission. It is instrumental for supporting the implementation of the ceasefire. The safety and security of SMM monitors must be assured by the sides. Those responsible for threatening or using force against the monitors must be held accountable.”

Maybe the „loud thinking“ about an armed OSCE mission should deter those who are against the OSCE as such („… they want to intervene in our internal affairs“, as declared often by the eastern Ukraine separatists). Indeed OSCE should think about their first armed peacekeepers, and this if only for the duration of local elections. Then OSCE would have found another, additional role – a role which would make sense if peacekeepers in Europe are needed. As mentioned, Russian peacekeepers alone are unthinkable, NATO ones as well, and the EU is not yet so far to deploy an armed force to keep the peace, if they would not be rejected as well, although Ukraine is an Eastern Partnership member state. So rests the OSCE, and in a peacekeeping mission lies a sensible and adequate task. At least it should be demanded, and who is against, this will speak for itself.

It can now be expected that at the next meeting in the Normandy format, with foreign ministers and/or presidents or prime ministers from Russia, Ukraine, France and Germany, on the 11 May 2016 in Berlin also the issue will be discussed if and if yes, how the security of the local elections should be guaranteed. The date of the elections is not determined yet, but the issues around these elections have to be solved under the Minsk II Agreement. So Ukraine will be on the agenda, including the preparation and security of the elections. As SMM is not armed and a civilian force, and an upgrade of SMM is not likely at all, there may be only a solution in deploying an armed OSCE force to eastern Ukraine. After 11. May we may know more. For if there is a common position within the Normandy format, this will be also the case in the OSCE.

The EU should establish a real Intelligence Service

Since several years, the European diplomatic service (European Extermal Action Service, EEAS) disposes of a small intelligence service unit, where less tan 100 people work, called INTCEN. It is jealously „supervised“ by national governments. These are not the „European spies“, and there is no James Bond smell in the air, anyway. The studies made are sometimes questioned, and there is a lot work done on the basis of open sources (which is indispensable for intelligence Services, too). The work of INTCEN is hardly discussed, and the work which could be done by them not either.

However, the terrorist events since mid-November 2015 in Paris, and elsewhere, brought a new push to these discussions. The ALDE chairman in the European Parliament, Guy Verhofstadt, pleaded in the meantime for a European Intelligence Service, and some Member States‘ ministers of interior pleaded, for evident reasons, for a closer cooperation between the EU intelligence services. This is indeed necessary – only a minority of services has effectuated a necessary information exchange about possible terrorists by the end of the year, which had been approved on governments‘ level.

What we need in the European Union, is a real military and extremist-oriented Intelligence Service, in addition – and in cooperation with – all the national services. A permanent informaton exchange, in the sense of a two-way traffic, has to be anchored legally, in order to have it at all. The same also for a parliamentary supervision, for which a special committee of the European Parliament should be created, based on the experience of some Member States. Art. 42-47 Treaty of the European Union(TEU) allow this, in my provisional legal opinion, even without treaty changes; art. 42 (6) allowing also activities of a part of Member States. It would just need the courage of some of them to launch an activity. We do do not need a new EU agency or similar, we just need to upgrade INTCEN, give them a reasonable legal framework, give them reasonable tasks which may consist of the coordination and compulsory information exchange between Member States‘ agencies. Whoever observes the external policy analytics capacity of the EU should not say „forget it“ and be allowed for closure of activities – just in contrary. We need also here „more Europe“ – an intelligence centre at least for coordination, with significantly more staff than now (could be also seconded from Member States‘ agencies), and with reasonable competences, and a permanent finetuning of own and Member States‘ activities, of own and other personnel, of own analyses and those of the EU Member States.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal

http://www.eufaj.eu

 

 

 

Is Russia Withdrawing from Rule of Law Principles?

Between 2013 until mid-2015, around 45.000 Russians have turned to the European Court of Human Rights (ECHR) in Strasbourg (Moscow Times, 10.12.2015). The majority of cases was decided against the Russian administration, for the protection of Russian citizens. The ECHR can rule also against a constitution of a signatory state – which was the case e.g. in an equality and nin-discrimination case aganst Germany where the Constitution had ruled that women cannot fight in the army, resp. nit fight in combat troops. A female future helicopter pilot had this examined legally, and won finally. The German Constitution had to be changed. So, the ECHR is a (not only constitutional) watchdog, with many judgments in favour of judicial rights of the citizens. Since Eastern European states are subject of ECHR decisions, there is a certain tendency in favour of a liberal society, abiding to the rule of law. It is good to have international courts in Europe, and the ECHR and its EU counterpart, the Court of European Justice (CEJ) in Luxembourg have all confidence of the citizens. These courts are a guarantee of the sum of all positive legal traditions.

But now Russia has managed to adopt a new law, and this within days:. The Federal Constitutional Law of 14.12.2015 № 7-FKZ: „On Amendments to the Federal Constitutional Law“ – On the Constitutional Court of the Russian Federation. The law has been initiated in the parliament on 18.11.2016 and was approved on 4.12.2015 State (Duma) resp. 9.12.2015 (Federation Council), then signed by the president on 14.12.2015. This speed says it all; only  semi-auhoritarian and authoritarian regimes can afford to whip a law through parliament that fast, without gathering any feedback by civil society (which hardly exists in Russia). The law says that its Constitutional Court can exempt Russia of international judgments, if this judgment is against the Russian Constitution. So Russia is, again, alone.

This cannot be compared to the case of the United States who did not want their military staff responsible before an international court. The ECHR concerns civilians. Russia evidently took the Yukos case to trigger its new policy, also to save 1,9 billion EUR compensation to be paid to former Yukos shareholders. This case has to do with arbitrary use of procedural rights, as well as with the case against Michail Khodorkovsky, another example which can show very contestable Russian standards of the rule of law.

Russia should know that this new law is considered by the Rule-of-Law community of the world as being against its own interests, against foreign Investment in the country which would be needed so urgently. But it goes hand in hand with the laws about „foreign agents“. It is the point on the „i“ which should defer all relevant decisions to a post-Putin era, as at present Russia is far away from the rule of law.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal

http://www.eufaj.eu

Frankreich beantragt den „EU-Bündnisfall“ gemäß Art. 42 (7) EU-Vertrag – Was sind die Folgen?

Nach den Attentaten von Paris vom 13.11.2015 hat die französische Regierung an die EU den Antrag nach Art. 42 (7) EU-Vertrag gestellt, die Beistandsklausel in Kraft zu setzen. Art. 42 ist die allgemeine Bestimmung über die EU-Sicherheits- und Verteidigungspolitik. Der Absatz 7 des Art 42 ist insoweit neu, als er bisher nur die EU-Staaten band, die NATO-Mitglieder oder solche der Westeuropäischen Union (WEU) waren. Seit dem Vertrag von Lissabon bindet er jedoch alle EU-Mitgliedstaaten. Er wurde jetzt zum ersten Mal in der Geschichte der EU angerufen.

Der Artikel sagt schlicht und einfach: Im Falle eines bewaffneten Angriffs auf das Hoheitsgebiet eines Mitgliedstaats schulden die anderen Mitgliedstaaten ihm alle in ihrer Macht stehende Hilfe und Unterstützung. Wie weit diese Hilfe gehen kann, ist nicht definiert; in Zweifel ist es bewaffneter Beistand. <wie erwähnt, handelt es sich um die erste Anrufung überhaupt gemäß Art. 42 (7) EUV und somit um einen bedeutenden Schritt in Richtung einer EU-Außen- und Sicherheitspolitik. Es ist demnach völlig gleichgültig, ob die EU als solche von Terroristen angegriffen wird, die ihre Pläne im Ausland oder wo auch immer geschmiedet haben, oder von einem Land. Die Worte „ein bewaffneter Angriff“ im EU-Vertragstext sind auf beide Alternativen anwendbar.

Somit ist eine Art „Doppelgleisigkeit“ des EU-Vertrags zu Art. 222 (1) AEUV (Vertrag über die Arbeitsweise der Europäischen Union) gegeben, die nach diesem Artikel sogar innerhalb eines Mitgliedstaats nach terroristischen Akten tätig werden kann.

Auf das Ersuchen der Franzosen haben alle 27 anderen EU-Länder sofort mit ihrer Solidarität reagiert. Dennoch dürfte diese Aktion wahrscheinlich nur symbolischen Charakter haben, wenn man von einer weiteren Koordinierung der Geheimdienste absieht (in diesem Zusammenhang sollte man in der EU dringend arbeiten an einem EU-eigenem Geheimdienst mit zumindest teilweiser Koordinierungskompetenz, wie schon in der Vergangenheit mehrfach angedacht – wer als die EU sollte z.B. nationale Geheimdienste in Sachen Da’esh/IS koordinieren?). Bei allem darf man sich jetzt aber nicht allzu viel erwarten: Ausgerechnet das deutsche Bundesverfassungsgericht schrieb in seinem Urteil zum Lissabon-Vertrag, die Beistandspflicht mit militärischen Mitteln sei eine politische und keine rechtliche Schuld (BVerfGE 123, 267, Rn. 365 et al.).

Diese Attacke, wenn es eine Krise ist, wird so aussehen wie alle zuvor: Die EU wird gestärkt aus ihr herausgehen. Nicht so, wie ich von einem Journalisten am Tag nach dem Attentat las: „Der europäische Traum ist zu Ende …“. Eine solche Attacke braucht eine klare, europäische Antwort. Diese braut sich soeben zusammen.

Hans-Jürgen Zahorka
Chefredakteur, European Union Foreign Affairs Journal (EUFAJ), http://www.eufaj.eu

 

 

 

 

 

 

 

It’s Time to Update the Lisbon Treaty

The Lisbon Treaty is in power since November 2009. Since the dynamisationof EU poltics in the mid-1980s, there were only few years without Scratching at existing treaty structures. We had in power

  • 1986/1987 in power – the European Single Act,
  • 1992/1993 in power – the Maastricht Treaty,
  • 1997/1999 in power –  the Amsterdam Treaty,
  • 2001/2003 in power – the Nice Treaty,
  • 2007/2009 in power – the Lisbon Treaty

Between the two latter we had the attempt to adopt a European „Constitution“ which for petit-bourgeois reasons was rejected by the people – but only in two countries, Netherlands and France, both voting not under too rational considerations.

Before 1986, there were not really treaty adaptations of the 1957 Treaty of Rome, besides „cosmetic“ ones. One can say that the real dynamisation of the EU started with the Single Market inf the mid-80s.

Now it is time to prepare the successor treaty for the Treaty of Lisbon. This treaty we have at present needs urgently to be revised:

  1. The „Greek Drama“ has shown clearly that we need a common fiscal policy and a common budget policy. This means of course that every EU Member State should have ist own budget policy, but the Framework, i.e. the Maximum aberaation figures should be set by the EU. If These should be a common currency – and it should, of course – then Greece, Spain, Portugal, Ireland, Cyprus etc. have shown clearly that not only an EMS remedy should exist but also an effective prevention mechanism.
  2. In this context we also have to say „yes“ to a horizontal financial support mechanism in the EU. If we have federalism in Germany, which has a strong and effective likewise mechanism (which is attacked by the one or other region = Land, all couple of years – but this is legitimate and a permanent task of politicians to discuss about percentages) , then it must be legitimate for the EU, too, as this grows into more and more federalism (or call it different, if one it ins countries where federalism is occupied negatively, by tradition. But tradition as such can not be valid for serious political reforms.).
  3. The next version of the EU Treaty must radically delete the legal necessity of unanimous votes in the Council, thus ending a preponderance of this instrument of national egoism. This may have been useful in the first time of the EU, when we had six founding members, but with 28 and possibly more in the future it is harmful. One state should not blackmail all the others just with a veto.
  4. In particular, we need a clear enabling of the EU for a common foreign policy. This may end in common embassies and consulates in third countries, which will bring many billions € of savings, but also a qualitative improvement of the EU representation and of ist Member States.
  5. We also need urgently to establish European Army structures, at first for outward interventions. This has been a taboo for a long time, which is ridiculous in view of the necessities.
  6. What came into everybody’s mind during the last weeks and months: Europe needs a real refugee policy, as well as an immigration policy. What we have now as a result is urgently to be changed and Europeanized.
  7. We also need an effective sanctions mechanism against EU Member States who evidently follow a corrupt policy or follow policies diametral to European values. While Hungary, still officially under communist regime!, cut a hole into the Iron Curtain, literally, the successor government under Viktor Orban sets up a fence against Syrian and Eritrean refugees – this is not only hard to swallow, this is frankly unacceptable and cries for sanctions.

All this is for a future Lisbon Treaty. Maybe it is called then the Rangendingen-Höfendorf Treaty, or Horndon-on-the-Hill Treaty, or St.Moulinex-les-bains Treaty – it is the content which counts. And the time should be over that European federalists discuss only from the defensive side.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal

 

Türkei, der Völkermord an den Armeniern und der Papst

Der jüngste Bärendienst an der türkischen Sache stammt von der türkischen Regierung selbst, wie schon so oft vorher. Papst Franziskus hatte am 12. April 2015 im Vatikan an den „Völkermord an den Armeniern“ erinnert, worauf sich über ihn ein Sturm osmanischer Entrüstung ergoss. Der Botschafter des Vatikan wurde zum türkischen Außenministerium bestellt, der türkische Botschafter im Vatikan nach Ankara zurückberufen (er dürfte nach einigen Wochen wieder an seinem Posten sein). Letzteres gehört zum diplomatischen „Spiel“ und ist nicht weiter schlimm. Schlimm ist aber, dass die türkische Regierung (und die oppositionelle CHP) meint, dem Papst in Fragen, die die Ethik in der Politik betrifft, einen Maulkorb verpassen wollte. Wer die Zahl von 1,5 Millionen Opfern des Völkermordes an den Armeniern 1915 absenken will, muss sich vergleichen lassen mit jenen Holocaust-Leugnern, die sagen, nicht sechs Millionen Juden seien in Nazi-KZs umgekommen, „sondern nur drei“. Im Übrigen ist lediglich die ebenfalls oppositionelle MHP (Nationalist Movement Party) bereit, für die Redefreiheit des Papstes einzutreten, sagt aber auch, dass religiöse und politische Führungspersönlichkeiten kein Recht hätten, so schwere Beschuldigungen wie Völkermord gegen ein Land zu erheben. Es scheint also mehr oder weniger einmütig zu sein, wie die Türkei reagiert – allerdings gibt es heute viele Intellektuelle, Autoren, Journalisten, Geschäftsleute, die – mehr als je zuvor – eine Aufarbeitung dieses Geschichtskapitels wollen.

Natürlich war es 1915 ein Völkermord – dies hatten Experten und Wisscnschaftler hinreichend oft festgestellt. Aber warum stellt sich keine türkische Regierung hin und sagt: Wir haben, verdammt noch mal, vor 100 Jahren einen Völkermord initiiert, wir bedauern dies zutiefst, wir entschuldigen uns hierfür, und wir wollen mit unseren Nachbarn, den Armeniern, eine gute und bessere Nachbarschaft. Gerade, dass es hieran fehlte, ergab bei den Armeniern jenes Trauma, das darin gipfelte – was in der EU nicht immer verstanden wurde, dass man ständig eine Völkermord-Entschuldigung forderte. Es ist ein bezeichnendes Symptom für die mangelnde Souveränität der Türkei, sich mit diesem Thema, allein aus nationalistischen Gründen, nicht auseinander setzen zu wollen. Es spricht Bände, dass aus der vom Staat drangsalierten türkischen Zivilgesellschaft die einzigen Stimmen dringen, die für eine solche Entschuldigung eintreten. Armenien hat übrigens keine Kompensationsansprüche gestellt.

Im Übrigen steht es gerade Deutschland an, sich hier zu erklären: Das Deutsche Kaiserreich war vor 100 Jahren mit dem Osmanischen Reich verbündet. So wie Deutschland sich dazu bekannte, als Nazi-System den Holocaust initiiert zu haben, muss es sich dazu bekennen, als Verbündeter des Osmanischen Reichs damals offiziell die Behandlung der Armenier unterstützt zu haben. Etliche Zeitzeugen, wie von Lepsius, Werfel und andere, haben damals einen anderen Kurs gefahren.

Armenien, das in einer seltsamen Zwangslage zwischen der EU und Russland liegt, re-orientiert sich derzeit wieder an der EU – im klaren Gegensatz zur Türkei. Deren unwürdige Leugnung des ersten Völkermords im letzten Jahrhundert unter Erdogan III ist in einem eklatanten Gegensatz zur europäisch orientierten Reformpolitik von Erdogan I. Damals war auch der Autor dieser Zeilen ein überzeugter Anhänger eines türkischen EU-Beitritts; unter der heutigen Regierung in Ankara kann davon keine Rede sein.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal (www.eufaj.eu)

Happy 2015 by a persona non grata

I want to tell  that I have discovered (again) my name on a list of personae non gratae – unwanted persons for entry in the state territory – in Azerbaijan:

http://en.wikipedia.org/wiki/List_of_people_declared_personae_non_gratae_in_Azerbaijan

My „crime“ consisted in 2013 in being embedded, as Chief Editor of „European Union Foreign Affairs Journal“ (EUFAJ), into a delegation of presidential election observers in Nagorno Karabakh, composed by EuFoA (European Friends of Armenia), a Brussels-based office which works for closer contacts between the peoples of the EU and Armenia. I am not a member of EuFoA, but always open for talks, contacts and other journalistic démarches towards everybody. I had also published in EUFAJ several articles by Azerbaijani authors, which were directly working for the government there or glorified the present government – I never had a problem with this, as my whole work is in favour of press freedom and free expression of opinions, also within a paper which is e.g. led by myself.

However, for being kept on this list which is often called a „list of shame“ for the Baku government, I am very grateful. It will give me the possibility, if asked (or not), to mention the persecution of journalists, bloggers, critical civil society representatives, to mention the fact that Azerbaijan is at present probably the European champion in corruption and in manipulative diplomacy („caviar diplomacy“). After all, it is a honour for me to be included on this list – I am in very nice company, with e.g. the former EU Special Representative for the South Caucasus, with many distinguished scientists and members of different parliaments – and with Montserrat Caballé, the Spanish singer.

Rests only to state that the Azerbaijani personnel files need an urgent update. What I have been attributed, to be a „German Member of European Parliament“, was finished in my first youth on 31th July, 1989. It is recommended therefore to every person likely to come „on the list“ to travel with topical bio notes, to help the helpless Azerbaijani authorities.

If one knows that e.g. the former Council of Europe rapporteur on Azerbaijan, Mr. Strässer M.P./Germany, has been barred to enter the country because he was a rapporteur (now he is charged with Human Rights for the German Federal Government), I cannot feel bad but feel a great honour to be included on this list. Unfortunately, I cannot travel now to Azerbaijan any more, but this won’t prevent me to publish remarks at every possibility and where it is appropriate on the Human Rights‘ situation in the country, and about the „specificities“ of the reign of Mr. Ilham Aliev (whom I cannot address as „Mr. President“ as he had faked all the election results in the past).If this is too „subjective“ for the Azerbaijani authorities, they always can invite me, but please do not forget then to change the list before.

All the best for a happy 2015,

 

Hans-Jürgen Zahorka, LIBERTAS – Europaeisches Institut GmbH

Chief Editor, European Union Foreign Affairs Journal (EUFAJ)

www.libertas-institut.eu, EUFAJ: www.eufaj.eu

Facebook: European Union Foreign Affairs Journal

 

EU Peacekeepers for Nagorno-Karabakh?

The Armenian and the Azerbaijani media are full, at present, with speculations about a possible war in the South Caucasus. This is, unfortunately, not excluded, although all logical thoughts lead not to a war – but what means logic in this context. Fact is that many soldiers have already lost their lives and even civilians have been shot or wounded. So creative solutions are requested.

This leads to the possible call for peacekeeping troops. Indeed, they should be deployed rather sooner than later, when there is still a bit of peace existing; otherwise they would have to overcome a lot of difficulties, if those could be overcome at all. As usual, it is better to intervene at an early stage than too late. Of course, there should be a consent who should come. This consent should include Armenia and Azerbaijan.

There is much discussion now about Russian peacekeepers in Nagorno-Karabakh. This would if at all accepted with a grim face of the two mentioned countries, and by Nagorno-Karabakh. Russia has a security agreement with Armenia, and at the same time sold weapons for four billions USD to Azerbaijan – so its credibility can be heavily criticised. No country could have better expressed its interest in having no peaceful settlement.

NATO or US troops would not be accepted by Russia, and everything including US troops even as peacekeepers may be considered as too much of an „intruder“. Although of course possible, it may be perceived as a certain provocation which might need a lot of efforts to explain. OSCE troops as such are not likely; the OSCE has observers only in likewise conflicts. UN troops are theoretically possible, but if one looks to some African missions by the UN I think under efficiency criteria it should be avoided, if possible, that the UN which otherwise is also rather inflexible (UN Security Council) should be switched in in an operative way.

However, the EU – which has not yet been asked but can submit the offer to Armenia and Azerbaijan – could and should be ready for a new role as peacekeeping power. The region is limited, the task as well, the supply ways to it may lead via Turkey which is not only NATO Partner but also associated to the EU. Another way could lead via Georgia. The EU is, from outside and inside, more and more asked to take over a higher responsibility in world politics, above all in its own backyard. It is not suspect to remain too long in comparable missions – just in contrary. Its mandates are repeatedly discussed, also in parliaments and this on EU and Member State level. EU troops would be accepted as nobody can have anything against the EU, and this in Azerbaijan, in Armenia, but also in Nagorno-Karabakh. As long as nobody would start shooting, it can be expected that any EU peacekeeper force would behave as much „gentlemen-like“ as imaginable, including cooperation of the troops in civil reconstruction, and this on both sides of the front line.

There is also one more reason for an EU-led peacekeeping force: the Eastern Partnership. This could be the first real opportunity for the Eastern Partnership to prevent actively any conflicts on its territory. And if Georgian ,Moldovan or even Belarusian troops should be included (the latter do not include the President), why not? Ukraine may be too heavily charged with its troops at present, and Azerbaijani and Armenian inclusion into the peacekeeping forces should normally be excluded.

Of course, this makes only sense if both sides are ready to negotiate at the same time. This could be a task for the summit meeting in Sotchi/Russia on 8th August 2014. Russia should have all interest to return to the table with the EU and prove that its government can also be rational. It may make sense also for the OSCE Minsk Group, and if not possible there, also for a new round, this time under the auspices of the EU.

And it needs a keen but realistic vision for the EU, which here could show it can look beyond its Member States‘ horizons. The Eastern Partnership framework is, of course, the backyard of the EU, even explicitly.

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal

http://www.eufaj.eu

 

 

Russia and the Eurasian Union: Mission Impossible?

By Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal (EUFAJ)
http://www.eufaj.eu

The Russian president Putin may be a political chess player, but he will fail at the very end. He wants to restore glory for his country, and therefore he undertakes a lot:
– blaming the Americans and the Europeans for anything which does not function in his country, including a growing authoritarianism and repression of non-violent opposition, including as well the stigmatisation as „foreign agents“ of any non-governmental organisation which has contacts abroad (and all open-thinking NGOs have them), and following a media policy which is absurd and where critical journalists often have to pay with their lives and health,
– gathering a lot of compliments from most of his compatriots after the conquest of Crimea, and the intended destabilisation of Eastern Ukraine – and in both cases the troops there turned out to be Russian ones, although this has been denied by Putin, who did not say the truth to the world.

This is why Russia is now isolated more than ever. Even China did not veto the trend of a discussion in the UN Security Council on 12.4.2014.

All the efforts by Putin go in this mentioned direction. It is to be crowned by the project of the „Eurasian Union“ which is to see the light of the world in 2015. Since his article in Izvestiya some years ago, it is evident that this Eurasian Union should become a kind of counterpart to the EU. No problem with this; the EU is very much in favour of regional integration in the world. And nobody in the EU or elsewhere would have anything against the Eurasian Union. However, this Project is not about economic or political Integration only. It will never be possible as an integration in the worldwide sense, alone as the EU has been a totally voluntary integration. The same for all other integrations in the world. The Eurasian Union, however, is definitely not: its predecessor and economic centerpiece, the Eurasian Customs Union is going bonkers — even if this is not seen by the protagonists. Consisting of Russia, Belarus and Kazakhstan (all three beacons of democracy and human rights, as everybody knows), a lot of transborder operations go better with the help of corruption. I don’t want to mention the ranking in the Corruption Perception Index, as everybody also in Russia knows that there is still a lot of corruption in the administration. The customs tariffs are three times as high, on an average, as the import tariffs for new member countries: Armenia has either to raise its customs considerably, or get several hundred of exemptions, which makes a customs union ridiculous. Normally a customs union in economic history has always served to decrease customs, and not to increase! The Armenian government has been squeezed – under which circumstances ever – to welcome this and to tell its people that this would be a success. At the same time, newspapers write at the same page of many possible insolvencies of various sectors and drop-outs, which will lead to a continuation of the Armenian nightmare, the brain-drain by emigration. Every integration – see e.g. the accession of Spain, Portugal, Greece as well as Central and Eastern Europe to the EU – has led so far to a short to medium-term re-integration of former emigrants.

The biggest problem for Russia is her relations with Ukraine. Here every possible Eurasian Union member state can see at first hand, how they can be treated. No chance to hope that this can be changed: Russia has in all Eurasian structures since many years the absolute majority of votes. No way with a qualified majority, which in the EU can easily serve as an instrument of balancing the interests and of creating a compromise.

The result of the Crimea action has been to suspend Russia’s voting rights in the Council of Europe and to be subject of a negative assessment by the UN Assembly.

And nobody will invest at present in Russia, if he is mentally normal (except some big operators who are of strategic interest for Russia): The Moscow government had declared that it might confiscate foreign investmnt. This is against all rules, the rule of law, the rule of any international economy and above all the interests of Russia herself. Every small and medium enterprise will refrain from investing – and this in an era of positive globalization. Only a former KGB chief who never saw a company from inside can ride on such a wave. Russia is also dependent of its raw material and energy sales. The EU, including Germany, as main client are working since a while to diversify their purchases, a step which is getting momentum, and of developing alternative energy.

As the present macroeconomic trends indicate, Russia’s economy goes slowly but safely down, like the ruble currency, thus problemizing all foreign purchases which will be necessary also for domestic investment.

There are some people – like the author of these lines – who remember the hospitality, the fine humour, the philosophical discussions even with non-philosophers, the great nature, the food, the interesting history, the excellent education of Russian people. Their economy could become more and more efficient, corruption could go down, a numerous middle-class could emerge, Russians (all, not some) would go for holidays to the EU and worldwide, and will not flee their country, NGOs could form a vital civil society, art and music could thrive, and all problems could be discussed – why not controversially – and then solved in a free parliamentary vote. And the parliaments are correctly elected, and why not letting all parties admitted for this? Towards the outside, Russia could have excellent relations with its neighbours, with the EU (there are many years homework on what has been proposed and not done, like a free trade agreement etc.), with NATO, just to name some. In such a climate, NATO could become a historical structure – maybe with Russia as a member.

Instead of this, the former KGB chief in the Kremlin does not refrain from lying to the world, from attacking Crimea (at least. until tonight, 14.4.2014), and arresting many people who demonstrate against this in Moscow these days.

It is, simply speaking, ga-ga that at the beginning of the 21st century Russia, while all the others, or most of them, try to cooperate, falls back into the 19th century. If these ideas cannot convince the people (who should not behave like a flock of sheep), they feel a minority complex, manipulate the media and threaten other countries with tanks at their borders. They also are misled by this foreign activity from domestic and grave deficits. With this, the Eurasian Union will never function. It might be launched, but it will be a sick structure from the beginning – like many others who have been launched after 2001 in the former Soviet Union. There are brillant heads e.g. in the Eurasian Development Bank which is a kind of think-tank for regional integration and where many concepts for economic integration have been conceived. But in their concepts you do not read anything about the necessity of a free will of the member states to follow this integration. What their people have, the Russian government has not: sovereignty. The sovereignty to live and to let live. You should take it easy, Vladimir Vladimirowich. If you would, your people would also. But I have lost any hope that this is possible under your reign, although I am an eternal optimist. So drive your country to the beton wall, including following countries. Like the system of the USSR, this „Soviet 2.0“ system, although not under Communist auspices, will be rejected by a majority of People involved when they see the middle and Long-term results – first in the partner countries, then in Russia. By educated, young people who will see how dysfunctional their own system will be, also due to their Facebook and Twitter accounts and the Internet in general. Like the integration of the USSR, of Yugoslavia which both burst in bubbles. The result will always be smaller than the original. Because of this, perhaps for the sake of its own corruption?, the Moscow government will end up similarly, in the most positive way with four or five former and present European CIS countries in or near the EU, and Central Asia may later form a kind of integration themselves. It would, after all, need another and sympathetic leader in Moscow (not only to most of the Russians but also to the world) to break up this isolation and inefficiency.

Putin’s Russia: „Sorry, we have withdrawn our investment intentions“…

In context with the Crimea crisis the EU and US consider various sanctions. However, one kind of sanction will come – for sure – by the markets themselves, i. e. by thousands of big and small investors who until now have considered an investment to Russia.

First, investment is a huge global market. Every state, every region, every municipality dreams of big factories, hotels, company headquarters, or of small and medium sized companies‘ investment into their territories. So investors, who want to conquer another market or want to place a factory closer to their existing markets, also for service reasons, are pampered wherever they might be. It is no accident that very many states, regions or local governments run own offices or agencies in order to attract Investment, and some of them really do a good work. States or regions often have special laws with implicit positive discrimination of foreign investors.

Second, foreign direct investment makes a lot of sense: it brings new technologies, new ways of management, new jobs, new clients, and whoever is the investor also opens a bilateral trade runway between his own country and the investment destination. The WTO takes this into account with the TRIMs Agreement from 15.4.1994 (TRIMs = Trade-related investment measures), the WTO to which Russia acceded only recently. Of course, foreign direct investment may be restricted or excluded in sensitive fields (and Russia has a lot of them), but in principle Russia has less FDI than a „normal“ country, which should have – passively – around a third of the capital in foreign hands (and should also – actively – participate accordingly).

Third, investment decisions are not only a matter of figures, facts and data. Investment decisions are today for around 50% based on emotional Facts. A little town in French Vosges mountains got the Japanese factory because it is a nice region, a beautiful location, near rivers and lakes, near bigger cities, but otherwise like in a fairytale movie, with wild storks etc.. And the wife of a West German owner of a manufacture forced him not to go to Apolda/Thüringen but to Weimar, as this is culturally more interesting and the kids could go there in better schools, etc. After all, the investment destination must be sympathetic to the investor.

Russia has now a problem. In the discussion about sanctions and counter-measures and counter-counter measures, they said among others that it would not be excluded that in retaliating any sanctions Russia may confiscate foreign Investment. Russians who said this may not have worked at any time in any privately held shop or company, otherwise they would have known what immense damage this not too wise formulation brings. It brings … nothing, in the sense that then really nobody will invest anymore. I was advising a German medium-sized enterprise who was convinced to invest in tourism in Siberia. They wanted to acquire or build a lodge. Now came a phone call: „Sorry, we have withdrawn our investment intentions…“. Not because of Crimea, but because of the above mentioned phrase. This phrase has not been used by any of the EU institutions or member states – it would also hit the wrong. But by using this or having it used in an open way, Putin shows either that he does not care at all about the Russian economy, or does not know anything about economy, or both. He has just imposed the biggest sanction against himself, but also against his own people. Another „collateral“ damage in addition to the political and diplomatical damage because of his Crimea action.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal
http://www.eufaj.eu

The „Soviet Union 2.0“, the Crimea Peninsula, Ukraine and the EU

Whatever the news are and will be, whoever will have been the masked, uniformed people, the whole world looks and above all will look to the Crimea Peninsula and the South of Ukraine in the next days. It all depends how Putin will act or react – and it cannot be believed that what happened the last two days was a matter of some local commanders of the Russian Black Sea troops while he, Putin, did not know anything. He still tries to play the „good cop“, but nobody believes him anymore. Furthermore he might orchestrate a bigger operation than in Georgia, with Abkhasia and South Ossetia, in 2008, with revealing pictures repeating themselves in Crimea.
Since 1954, Crimea has been submitted by then Soviet Union to the Ukrainian authorities. In May 1992, the region was a punching ball between Russia, the Crimean parliament and Ukraine, with the result that it got a high degree of self-government. It became a kind of decentralised part of Ukraine, with an own constitution and a relatively high degree of self-government. While Russian President Yeltsin and Ukrainian President Kravchuk managed to divide the Soviet Black Sea fleet, Crimean Communists wanted an even more distinguished status of the Peninsula, which had at this time around 2 million of citizens (which decrease from year to year). The Crimean Parliament, however, anchored a clear phrase in the Constitution that the Peninsula was part of Ukraine.

Since this time there were numerous attempts in Crimea to be integrated into Russia and to leave Ukraine. In 2008, Russian passports have been given to Crimea residents, to create citizens to be protected then by Russia – at the same time when Russia did exactly the same in South Ossetia and Abkhazia, which were until then provinces of Georgia. Unlike Georgia’s Saakashvili however, the new Ukrainian government will not be torn into a provocation by Russia.

It was evident that „something“ had to happen in the Crimea Peninsula, in which southern part the Russian Black Sea fleet is based. Nothing against this fleet (and most Ukrainians could also live with this), but the Russian action seems to be a clear act of aggression, as another country has partly been occupied now, as Russia has made a no-flight zone over the Crimea, and as light tanks and an army staff of at least 2.000 has been sent to the peninsula to „protect“ (or take) local strategic institutions. Sure, the Crimea has been populated always by a majority of ethnic Russians, and there are ten thousands of Crimea Tatars who came only back to their former residences on Crimea recently, after they have been sent by Stalin in the mid-1940s to Siberia or Central Asia. This population group, of Muslim belief, is committed to live in Ukraine.

Since some street riots, without the loss of lives (except one casualty due to a heart attack), since 26.2.2014 in Simferopol, the Russian president Putin has ordered more than 150.000 Russian troops near the Ukrainian border on alert. Evidently, Russian forces have occupied parts of the Ukraine, which is, to put it mildly, illegal. This is indicated also by flights of helicoter gunships over the Crimea, and the persons which were partly masked and without uniform signs have been Russians, according to local population. Maybe the whole coup is what Moscow wants – but it will have to calculate now with heavy political and probably also economic replies:

1. The Ukraine could cancel the Black Sea Agreement regarding the navy bases in Ukraine. Maybe there is no effect upon this, but the claims could be pursued by international tribunals, and this would contribute to a growing isolation of Russia, which has – in 2014, and not any more in Soviet Union or before, when these things have been undertaken frequently – revived unilaterally a kind of Cold War. Another of course than the one which was held on an ideological basis, but a Cold War not of the old Soviet Union, but of „Soviet Union 2.0“, which evidently is Putin’s Russia today.
2. There will be a heavy consequnce for any country where the possible accession to Putin’s invention, the Eurasian Union and even the Eurasian Customs Union, is considered. The hit to Crimea will cost a lot of credibility, and from now on, the Kremlin is on the defensive regarding this project.
3. It will drive Ukraine much faster into the European Union than foreseen, and it will also set free thoughts about integrating Ukraine into NATO – and this above all from Ukraine.
4. It may bring a further drop of economic relations between the EU and Russia, and therefore contribute to an ever more stagnating economy of Russia – which is one of the biggest problems of the future. Putin cannot, today, calculate any more with the capacity to suffer of the Russian People.
5.In this context, I want to advocate the abolition of visas between the EU and Russia. Thus, Russians can see how Europeans live, how they think, how the EU and the Member States‘ governments and parliaments work. This, and millions of personal contacts and talks will have a long-term effect on Russia.
6. There will be a middle-term effect of free speech in the Crimea. Until now, the Peninsula has been led by Russian propaganda which is considerably different to the facts.
7. We are not anymore in talks between Yeltsin and Helmut Kohl – these times are over. There is an ex-KGB Boss now running the Kremlin, and he clearly wants to create somehow a superpower glory like in Soviet times. This is possibly followed with the same means as in Soviet times, namely with lies, like what Russia’s Foreign Minister Lavrov said to John Kerry two times during a phone talk these days: that the territorial integrity of Ukraine will not be touched. This means clearly, that there cannot be any more trust and reliance in Russian declarations.
It is evident that the sagas of „fascists“ etc. who „took now power in Kiev“ are nonsense; These are people who wanted to get rid of Yanukovich who marched his own „Berkut“ police units and his secret service against protesters, who did on the long term not accept Yanukovich’s way of retiring from the EU, of accruing personal fortunes and of having a rude leadership, with big deficits in the rule of law and heavy corruption. It has been no miracle that exaggerated expressions of nationalism could grow in this climate, but the Ukrainians are, like all other Europeans who do appreciate that they can live under European values, no fascists. The yet existing democratic deficits can be wiped out easily and in a fast way – this was shown e.g. by the Maidan Council etc.
8. There will be on the next EU summit on 20./21.3.2014 the new government of Ukraine coming to the EU heads of state and government to sign the Association Agreement with the Deep and Comprehensive Free Trade Area. This will induce, if not done already, payments of the EU, but wisely bound to reforms and to conditionality. Of course, this may bring problems for the Ukraine and its citizens as well, but only temporarily. The more open the UA government and parliament says this to its own people, the better. After all, this is a heritage from a Person who has cheated his people for millions and billions. It can be looked on the money laundering procedures not only in Switzerland, Liechtenstein, Austria, but probably also in other countries.
9. And last but not least, what Putin has done, arranged or accepted in Crimea must have a political, soft-power adequate reply. The EU is and will remain a soft power, in contrat to the Soviet Union 2.0 which is at present Russia – and where people who took part in anti-Putin protests 2 years ago were thrown up to 4 1/2 years to labour camp prison only one day after the Sotchi Winter Olympics ended. The power of weakness, or soft power, has always a longer breath than the weakness of power, or hard power. But above all, the EU has to follow now an articulate policy towards this kind of authoritarian, aggressive rulers in its environment. Doing nothing is no solution for the EU, and Putin and the UA government would be well advised, to settle the question of the Black Sea fleet – an Instrument of only regional and not of strategic importance – in a Guantanamo way, maybe with the rental agreement of a base on eternity“.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

http://www.eufaj.eu

Lessons from Ukraine’s Maidan for the Eastern Partnership Countries

By Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

http://www.eufaj.eu

Today night, Saturday, 22.2.2014, Yulya Timoshenko spoke for the first time after her release on the Kiev Maidan, and the questions about the whereabouts of ex-president Yanukuvich and about what he declares now reach the field of the ridiculous. He undergoes the fate of other dictators who have been chased away, and from which fates he did not learn anything.

Now those who have political responsibilities in the EU (and not only of the EU) should however discuss what may or will happen in the next future, i. e. the impact of the Kiev Maidan on Russia and on the other European Partnership Partner states of the EU, as well as on the West Balkan and on Turkey. All these countries, except Russia, have one thing in common: they are possible EU Member States, in the making, in the waiting room. Of course, with different individual distance yet to the European Union.

First, it must be congratulated and thanked to the Ukrainian people, to the heroes – and the dead – of Maidan. This was the latest European revolution which became accelerated by the horror of those who were marched by the government against the protesters, and who felt – on their own or upon the opinion of their families, relatives, colleagues etc. – that this was too much. It is not possible to excuse the Ukrainian government of the deadly snipers who killed by one single shot protesters in an arbitrary way. We will all be witnesses to trials who will be necessary, and – for the sake of the rule of law oif Ukraine – it must be hoped that they are fair. Yanukuvoch must be aware that he might come in a similar situation as Ceaucescu of Romania. Because the state Forces who served him without thinking on their role may become disappointed in a way that they might take revenge.

The impact of the Ukraine events may be also a heavy load on the present Russian government. What e.g. Foreign Minister Lavrov said shortly before and after Yanukovich was lifted out of his position by the Ukrainian parliament, went into a direction, which implied that he has not learnt anything. While Russian (state) TV was a bit more diplomatic, it can be expected now that the Kremlin tries out (again) the collective intelligence of its own people, civil servants and politicians. That means without doubt, that there will be also protests, demonstrations etc. in Russia. But the Kremlin would be totally wrong to react with the usual hard measures: police, arrests, trials, the modern gulag etc. The way, the Kremlin will react on the next demonstrations will indicate if they have learnt anything. It they react as harsh as ever, this may end up in a similar situation like in Ukraine, especially after Sotchi. Of course, the EU played a bigger role in the Ukraine, with its Draft Association Agreement, than in Russia, as Russia is not waiting ante portas of the EU – but it is clear that the so-called „European values“ will now play a bigger role: pluralism, democracy, participative democracy, tolerance, human rights, the rule of law (in all its facets), solidarity, equality, non-discrimination etc. Article 2, 3 et al. EU Treaty (Lisbon Treaty) will be a guiding line for all the countries which are or were foreseen for Putin’s Eurasian Union.

This Eurasian Union, if it were a pragmatic integration tool alone, would not be a problem for the EU. But evidently Putin wants to restore „Soviet Union 2.0“. And the predecessor of the Eurasian Union, the Eurasian Customs Union, is, I am sorry, „ga-ga“. Because e.g. Armenia has to raise its import tariffs from the member countries now from 2,7 to 6,5% to become a member of this Customs Union. There are moer than 800 kinds of goods which should be exempted. This is a huge task to negotiate, and then the Armenian government has to allow to be asked why they want at all into this Customs Union. Any integration System which raises tariffs and therefore prices works against the people – for whom it is originally intended to exist. The EU knows this perfectly, and the Armenian government knows this, but they act against all reasons. It is difficult to understand the Armenian people to swallow this, and above all the government in Yerevan to accept this in principle. The Association Agreement would not have jeopardized any close cooperation between Yerevan and Moscow. The objective of the Association Agreement EU / Armenia would have been the decrease – until zero! – of any custom tariffs, and a free access to the EU Single Market, which is a unique success story for every participant country. The other member states of the Eurasian Customs Union Belarus and Kazakhstan, who take this Customs Union as serious as it merits, sometimes shake their head in view of the Armenian eagerness to join this. Nota bene: Armenia had declared their attachment to the Customs Union on 3rd September 2013, after having celebrated the end of negotiations of the EU Association Agreement/DCFTA only on the 24th July, 2013. Both are imcompatible. This, of course, is the product of pression by Russia,and of nothing else, except an evident weakness in negotiations with Russia from the Armenian side. How this was communicated afterwards, was not subject to any beauty contest, and many European politicians ask themselves now, if they can trust any Armenian declaration. But to complete this, it must be said in the same moment that also Azerbaijan policymaking has many deficits, like e.g. the breach of Council of Europe conventions.

From the Eastern Partnership countries, Georgia and most probably Moldova will continue their way to the EU. Of course sometimes with small curves, but here may be optimism the appropriate position. Armenia will, if it really implements the Customs Union laws, soon be disappointed, and I do not exclude a kind of civil society-based movement there pleading openly for an accession to the EU. This would, of course, also help Armenia towards its problems with Turkey (and also Turkey with Armenia), and with Azerbaijan, including the issue of Nagorno-Karabakh. Azerbaijan will probably not be the Primary subject of any Maidan fallout, as the president, Ilham Aliev, has the Country in not too democratic grips – but in general, the opposition against the present system will be encouraged as well, and nothing can be excluded – and Azerbaijan may be the most corrupt Council of Europe Member State.

Rests still Belarus, the 6th Eastern Partnership Partner state. In Belarus, where many activists helped on the Maidan (and some of them have even been killed by the Berkud Police Forces and/or the Secret Service sniper units), this may become an issue. Above all, the economic situation of this country is deplorable, and it can not be expected that Russia feeds open-end barrels without bottom. So Belarus will soon have another look for more EU support. Belarus is a country which cooperates already now, so far it does cooperate, correctly with the EU. This is not the way its president Lukashenko preaches, but it – and he – does.

After all, there will be further centripetal power of the European Union. The EU is not a nationalist event, nor a military or likewise system (as the German party „Die Linke“ recently said), but a chance for all of the Eastern Partnership countries to join. Sooner or later this will happen, and we are now exactly in the situation when the Soviet grips have been loosened to the e.g. Baltic countries in the early 1990s – states are today seasoned, experienced and very positive European Union members. After all, the EU enlargement policy will get a new boost, even if the issue of enlargement is not explicitly pronounced – as the EU often had fears to tell it to its own people. This has to finish, and in the EU everything which has to come has to be discussed. The Ukraine events have probably woken up the EU citizens, or a great deal of them, and the fact that the next Ukrainian election will be held on the same date as the 2014 European Parliament elections, namely the 25th May, indicates that Ukraine is now ante portas as well. Maybe not in the next 5 or 10 or even more years. But nobody should forget that e.g countries like Latvia have been a EU Member State exact 10 years after the application was made. And that the economic development of all new Central and Eastern Member States went into the right direction. It is not necessary that the same economic Level has been reached by any future member state immediately – it is only important that the economic policy follows the right direction, to join the EU which has also high disparities within its Member States.

So, nobody should be astonished, if in other Eastern Partnership states, like e.g. Armenia, Azerbaijan, Belarus, or in Russia, or in Bosnia-Herzegovina or Turkey, similar movements like on Maidan might occur.

Ukraine: The Decisions of the EU Council from 20.2.2014 against the Responsibles of the Kiev Bloodshed

It could now be written more and in very clear words about the sSituation in Ukraine. In particular, why dictator Yanukovich did not yet sign the unanimous decision of the Parliament, where 34 members of his Party of Regions have contributed to a Lifting of the „Anti-Terror rules“ for the Police, enabling also the army to take part (whch is not likely now). This Parliament decision Needs the signature of Yanukovich to become valid. We could also write that the Parliament press Speaker has evidently left Ukraine, together with his fsmily, another sign of Dissolution, and that the whole Police in various cities has pledged not to fight against the protesters thus showing Support for them. In this context, it is cynical what a German M.P. from „Die Linke“ has said on the Events in Ukraine, quasi excusing what Yanukovich’s death squadrons did today.

But we want today to help the EU getting a bit more public by distributing the text of their Council decision from today’s 20.2.2014:

„COUNCIL OF THE EUROPEAN UNION
EN
Council conclusions on Ukraine
FOREIG AFFAIRS Council Meeting, Brussels, 20 February 2014

The Council adopted the following conclusions:

1. The European Union is appalled and deeply dismayed by the deteriorating situation in
Ukraine. No circumstances can justify the repression we are currently witnessing. We
condemn in the strongest terms all use of violence. Those responsible for grave human rights
violations should be brought to justice. Our thoughts are with the families of those who have
lost their lives and with the injured. We call for an immediate end to the violence, full respect
of human rights and fundamental freedoms, including the right of access to medical
assistance, and for urgent independent investigations into Human Rights violations, notably
through the Council of Europe International Advisory Panel. We call upon the Government to
exercise maximum restraint and opposition leaders to distance themselves from those who
resort to radical action, including violence. It urges the Ukrainian government to abide by its
obligations under international Human Rights instruments to which it is a State party. Any
further escalation, including the introduction of a State of Emergency, or the use of the armed
forces against protesters must be avoided.

2. We call on all sides to engage, without further delay, in a meaningful dialogue, to fulfil the
legitimate democratic aspirations of the Ukrainian people. Recalling its conclusions of 10
February, as well as statements by the President of the European Council, President of the
European Commission, and the EU’s High Representative, the Council remains fully
committed to offering its assistance to promote political dialogue between the sides and help
de-escalate the situation. We expect Ukraine’s elected representatives to assume their political
responsibilities, including in the Verkhovna Rada. The Council underlines that the prime
responsibility for the current situation, and for taking the first step to enable such a dialogue
lies squarely with President Yanukovych and the Ukrainian authorities.

3. The European Union continues to believe that any lasting solution to the political crisis must
include constitutional reform, the formation of a new inclusive government and the creation
of the conditions for democratic elections. We remain ready to support Ukraine in the process
of reform to deliver a stable, prosperous and democratic future for its citizens. Our offer of
political association and economic integration remains on the table. The Council recalls that
the Association Agreement, including a DCFTA, does not constitute the final goal in EUUkraine
cooperation. Furthermore, the European Union stands ready to offer assistance and
support humanitarian organisations for the replenishment of stocks of medicine and medical
equipment for the treatment of people affected by the violence.

4. In light of the deteriorating situation, the EU has decided as a matter of urgency to introduce
targeted sanctions including asset freeze and visa ban against those responsible for human
rights violations, violence and use of excessive force. Member States agreed to suspend
export licences on equipment which might be used for internal repression and reassess export
licences for equipment covered by Common Position 2008/944/CFSP. The Council tasked the
relevant Working Parties to make the necessary preparations immediately. The scale of
implementation will be taken forward in the light of developments in Ukraine.

5. Faced with such grave crisis in Europe, the EU will continue to work in close cooperation
with the international community, including in support of both the OSCE and the Council of
Europe, to find a lasting, inclusive solution that respects the rights of all Ukrainians.

6. The Council underscores the importance of a vibrant civil society for ensuring the democratic
and prosperous future of Ukraine. It reiterates the commitment to enhance people-to-people
contacts between the EU and Ukraine, i.a. through the visa liberalisation process, along with
agreed conditions in the framework of the VLAP. Meanwhile, the Council encourages
Member States to make optimal use of the Visa Facilitation Agreement provisions and of flexibilities offered by the Visa Code.“

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

Switzerland May Face Problems with the European Union

Today Switzerland has approved by a referendum with slightly more than 50% and a turnout of 56% in the vote the limitation of Immigration, although it is obliged to keep free circulation with European Union workers. Although business circles have warned of such a result as Swiss economy Needs and will Need many foreign workers, it had been predicted by polls. Evidently, the Swiss voting population has followed xenophobic arguments rather than voices of European solidarity and economic rationality.

Now Switzerland will have to change its legislation into the restricted direction within three years. We will see what comes out. In any way, the European Union has to react somehow, as free movement of people cannot be separated from free movement of goods, services and capital – this is evident and every Swiss knows it. Also, Switzerland may become now, on the explicit request of its own population (which was not shared by the Government) a kind of „paria“ in European politics. As the „Bilaterals“, how the Bilateral Agreements with the EU are called in Switzerland, might soon be not worth the paper they are written on, the question will arise what an Agreement with Switzerland is worth at all if it is recalled by an immediate referendum, and how reliable this state is – although the state has only given good examples for reliability. But as the EU is snubbed now, there must and will be a retaliation by the EU. There will be very many examples for this; one of the best examples for this might be the case when the EU does not speak with Switzerland in some fields. There may be also an EU legislation where Switzerland is not consulted beforehand. The damage may, however, be limited. I personally do regret the result of this vote very strongly, as I have many contacts to Swiss Europeans and live quite close to the Swiss border and therefore know a bit about this country. Maybe this provincialist vote may have an effect, namely to bring those Swiss more into the offensive who advocate a full membership in the EU. We have learned that either present or new Member States of the EU have restrictions in free movement, without problems, which of course is not not the case in Switzerland. Switzerland has outed themselves now as a country whose population tries to „pick out“ only the goodies, but is not willing to carry any responsibilities – as I mentioned, this does not concern the government, but the overall population. About the ethical background of this vote there will be written more in the near future; in any case this goes very well in the direction of the famous public vote where the set-up of new mosques in Switzerland has been limited. This has been confirmed now by the open xenophobic and not very far-looking vote today.

Of course, this popular vote has to and will vbe respected. But it will not be accepted, and Switzerland will have to carry ist Long-term consequences.

It confirms that today a public vote or referendum in the middle of a legislative term is more and more abused as a punishment for the government or as an outbreak of populist tendencies. This is the real morality to EU citizens who are confronted with likewise requests and political programmes almost everywhere. In Switzerland it shows a structural problem of direct democracy: While it may have been justified in the times of Wilhelm Tell more than 700 years ago, a modern information society (which is always claimed for Switzerland, but one can really doubt this) with a partly contested government form is clearly sensible for populist arguments, which always come from a political extreme, and this mainly from the right. In addition, it shows also the end of the „example Switzerland“ for any other Country. From today, Switzerland is a third country for the EU like all the others.

Hans-Jürgen Zahorka
http://www.eufaj.eu

Ukraine – EU: The full text of the Draft Association Agreement, and a EU paper on myths in this context

Since a while already we have published the full text of the Draft Association Agreement between Ukraine and the EU, and it has turned out to be dery popular. So once more, if you want to see the more than 900 pages in detail, go on http://www.libertas-institut.com/de/EUFAJ/EU_Ukraine_Association_Agreement.pdf. Here you can find what has been first welcomed by the Ukrainian government – and some days before the signing date in November 2013 in Vilnius/Lithuania has been canceled by Ukrainian president Yanukovich. The EU would have helped in smoothly reforming the Ukrainian economy, contributing also to democratisation and the rule of law in this country (and our readers from Armenia can see what also to them has been deprived by a unilateral move by President Serzh Sargsyan’s on 3rd Sept. 2013).

Furthermore, also on the webpage of European Union Foreign Affairs Journal (EUFAJ), http://www.eufaj.eu, there is a EU Commission paper entitled „Myths about the EU-Ukraine Association Agreement – Setting the facts straight“, with all kind of negative voices and prejudices as used or lanced by government sources in Ukraine, but also with the relevant counter arguments of the EU. Finally the Impression seems justified that the EU does not accept any longer that „someone pees on their legs, and then wonders why the legs are wet“. See on the EUFAJ Website under: http://www.libertas-institut.com/de/EUFAJ/140122_UA-EU_AA_Myths_tradoc_152074_COM.pdf.

Hans-Jürgen Zahorka

New German Language Policies

These days new provisions on language policy have been enacted in Germany, which is a good example for diversity. Although I use to be very thrifty to write too positive things about my own country, I feel, however, that these two examples are absolutely positive:

First, the Sorbian language in East Germany: The Sorbians are a Slavic minority in Saxonia/Brandenburg, around Bautzen and Cottbus, with approx. 50-60.000 People altogether. In Brandenburg, the Landtag (regional parliament) decided now a new version of the relevant minority law. Sorbians will be able in the future to write in their language to authorities, and the language of Lower Sorbian in kindergartens and schools will be enhanced. Lower Sorbian (closer to Polish) thus shall be protected of being extinguished in the course of time (while Upper Sorbian, closer to Czech, is spoken by more people, south of Cottbus). However, three local Administrations are still in yesterday’s dimensions: Forst, Lübben, Senftenberg. They fear the expenses on their local budget if they would have to implement a second language. So, there must be hope that mere budgetary concerns will not overcome legitimate diversity considerations in favour of a very interesting minority.

Second, French in the German Region of Saarland, with its capital Saarbrücken. The Grand Coalition of CDU and SPD just have presented their „Strategy on French“ („Frankreich-Strategie“). Within one generation, French shall be the second colloquial language. Saarland belonged, until a referendum in 1957, to France, and borders France and Luxemburg. It is among the smallest German federal states with approx. one million of citizens. The strategy includes, among others, French courses in kindergartens and elementary schools. With this, Saarland wants to obtain more sole competences among the German regions – which makes a lot of sense in a two-way street between France and Germany.

Hans-Jürgen Zahorka
http://www.eufaj.eu

Ukraine: Brutalster Einsatz der Polizei seit Jahren gegen Pro-EU-Demonstranten

Das Recht, gegen seine Regierung zu demonstrieren, ist bei uns in der EU selbstverständlich. Offensichtlich ist die Ukraine unter Präsident Yanukovich aber noch eine Art „gelenkter Demokratie“, wie auch die großen Nachbarn in Russland. Deshalb gibt es gegen die Pro-EU-Demonstranten ein undifferenziertes, brutales Vorgehen seitens der Staatssicherheit. Von langjährigen ausländischen sowie von ukrainischen Beobachtern werden diese Polizeieinsätze als die brutalsten seit Jahren bezeichnet. Siehe auch unter: https://twitter.com/search?q=%23euromaidan&src=hash

„Euromaidan“ heisst jetzt der Maidan-Platz in Kiew, um den sich alles dreht – eine Art ukrainischer Tahrir Square. Diese Demonstration haben keine Revolution ausgerufen, sie haben (noch?) keine Farbe – wie z. B. die „Orange Revolution“ etliche Jahre zurück, als es um konkrete Wahlfälschungen ging. Hier geht es um die europäische Integration, sehr viel schwerer begreifbar. Allerdings kann dies durchaus weiter gehen als die Orange Revolution, und in der EU sollte man dazu Farbe bekennen, auf welcher Seite man steht: auf der Seite von hoffnungsvollen, zumeist jungen, intellektuell fundierten Anhängern von Europa, oder auf der Seite eines altmodischen, autoritären, das Rechtsstaatsprinzip tretenden Regimes, das keine Wirtschaftsreformen will und gewissen Oligarchen „gehört“. Soeben hat die Opposition einen Generalstreik angekündigt.

In der EU muss man die Vorgänge in der Ukraine sehr genau verfolgen – auch als politischer Normalverbraucher. Gleichzeitig braucht die EU jetzt eine sehr viel dezidiertere Politik gegenüber Russlands, das aufgefordert gehört, Staaten massiv zu beeinflussen, die mit der EU reformorientierte Abkommen abzuschließen. Russland sollte selbst eine solches Abkommen abschließen, um den geistig-politischen Anschluss nicht zu verlieren.

Die staatlich organisierten Schlägerbanden der „Steinadler“-Sonderpolizei in Kiew müssen sofort aufhören. Sie haben auf eine friedliche Demonstration eingeknüppelt, siehe http://www.youtube.com/watch?v=NiT0zcDA9RU&feature=youtu.be. Und die EU sowie ihre Mitgliedstaaten sollten ebenso reagieren, wie auch die europäische Zivilgesellschaft auch. Wenn ein Regime verhindern will, dass eine Bevölkerung sich an die EU wendet, und zwar mit hard power, dann ist das die weakness of power – im Gegensatz zu soft power, the power of weakness, als friedliche, gewaltlose Artikulation. Schon sind die ersten hohen Beamten in der Regierung zurückgetreten – und die Sache wird noch um einiges dramatischer werden.

Hans-Jürgen Zahorka
European Union Foreign Affairs Journal

http://www.eufaj.eu

PS: Soeben – 20.30 h am 30.11. – kommt mir die sehr klare Erklärung von EU-Kommissar Füle und EU-Außenbeauftragter Catherine Ashton auf den Tisch; sie lautet wie folgt:

Statement by High Representative Catherine Ashton and Commissioner Štefan Füle on last night’s events in Ukraine
European Commission – MEMO/13/1077 30/11/2013
Other available languages: none

European Commission
MEMO
Brussels, 30 November 2013

Statement by High Representative Catherine Ashton and Commissioner Štefan Füle on last night’s events in Ukraine

The European Union strongly condemns the excessive use of force last night by the police in Kyiv to disperse peaceful protesters, who over the last days in a strong and unprecedented manner have expressed their support for Ukraine’s political association and economic integration with the EU. This support had been welcomed yesterday by the participants of the Vilnius Eastern Partnership Summit. The unjustified use of force goes against the principles to which all participants of the Vilnius Summit, including the President of Ukraine, yesterday reaffirmed their adherence.

We call on Ukraine, also in its capacity as Chairmanship in Office of the OSCE, hosting its Ministerial Conference on 5-6 December in Kyiv, to fully abide by its international commitments to respect the freedom of expression and assembly.

We call upon the President and the Ukrainian authorities to carry out investigations into the events last night and to hold responsible those who acted against the basic principles of freedom of assembly and of expression.

Pro Pedestrian: Is There A „European Walking Policy“?

Should There Be A European „Walking Policy“ ?
How the European Union might use policy and financial tools for a coordination of a European „Walking Policy“

Paper for the Workshop „Transferring walking innovation in the European context“,
WALK21, München, 11.9.2013. This Workshop was led by Rupprect Consulting, Köln/Germany, in context with the TIDE project of the EU (Transport Innovation Deployment for Europe)

By Hans-Jürgen ZAHORKA

1. Nothing in the primary legal sources of the EU – the EU Treaties (Lisbon Treaty) – mentions any „walking policy“. The chapter on EU Transport Policy (art. 80-100 EU-T II [TFEU]) is applicable for road/street, combined, air, rail and inland waterways transport. The EU had and has a lot of activities in international, now also interregional transport covering more than one Member State. If one thinks when EU legislation has started in transport policy, one has to go back to 1957, the founding date of the European Economic Community (EEC). Only in 1985 the Council of Ministers has been driven by a European Court of Justice judgment to make some decisive moves in transport policy, by the European Parliament and the Commission. This was for the European Single Market (i.e. mainly for cross-border transports) from 1.1.1993 which was prepared by many activities from around 1980 on, like the Kangaroo Group of the European Parliament („the Movement for Free Movement“), by the Cecchini assessments on the future Single Market, by the White Book and by approximately 300 legal packages to introduce the Single Market. It is evident that even until the end of the 1990s there was not much preoccupation with the walking part of the population. This was left to the horizon of the local, regional and national governments.

2. In March 2011 a White Paper on Transport Policy was passed on by the European Commission to the other EU institutions; it covered a „Roadmap to a Single European Transport Area – Towards a Competitive and Resource-Efficient Transport System“ (White Papers/Whitebooks include already decided law announcements, whereas Green Papers/Greenbooks are discussion papers, also for the civil society). For the first time, issues like urban sustainability met the light of official European discussions. There are various legal and other initiatives announced in this White Paper (see „Annex to the White Paper on Transport“), but not directly for walking. However, the requested urban sustainability can also include a general European policy for pedestrians, walkers, which may be expressed in some general clauses. Any detailed provision would collide with the principle of subsidiarity (art. 5 EU-T I and Protocol no. 2; what can be done by the lower levels closer to the citizen should be done there, the remaining questions can be solved by the EU; for this reason e.g the European Parliament refused once to legislate on general speed limits on motorways, this being a matter of the Member States and regions; on the other hand, the EU has the regulation power in monetary issues – like the introduction of the Euro etc.) and therefore with the principle of European federalism – and this has to be understood.

It is interesting that both EU Commission General Directorates (equal to ministries on national level) deal with this subject now – Transport on one hand, as far as walking should be dealt with in cities, Regional Policy on the other, as far as transport safety should be mentioned.

3. However, the EU can serve as „test lab“ for best (or good) practices e.g. in urban sustainability, including pedestrian traffic, and its inter-modular connections (bus, tram, metro, suburb train, car etc.). There are many creative solutions in the cities of 28 countries, but they have to be collected and compiled. This principle of good practices is uncontested in the EU.
There are already many models for urban transport, urban climate policy, urban environment policy etc. in the EU, and some of them have even adopted elements in favour of the walking population. These models are exposed or elaborated in fora, in projects, and with the financial help of the EU and/or national, regional or local institutions they can be diffused in printing, online or as models e.g. for national, regional or local research institutes. Whoever among the city planners wants to have a document or paper can get this. One of the EU projects worth to be mentioned is TIDE – Transport Innovation Deployment for Europe, a FP7 research programme, which is one of the few EU programmes which deals today with walkers, pedestrians as participants in city traffic.

4. A regulation or directive (EU legislation) in this field could be discussed, but: subsidiarity! Therefore it is unlikely that the EU will try to regulate anything on walking in cities in the next years. However, parallel to city tolls which probably will be regulated in principle (e.g. on which legal basis, on which ecological performance of the city, and on which non-discriminatory basis) interventions might be thinkable.

5. Therefore other instruments with legal character are thinkable: Recommendations and Communications (art. 288 EU-T II [TFEU]). They are not legally binding in a direct way, like the laws by the EU legislation (Regulations, Directives). But both may be used e.g. as interpretation tool for courts, incl. the European Court of Justice. This, in the case of Communications, is for instance a common use in EU company law when it concerns public tenders etc.

6. In the context of working with the EU as „test lab“, in 1994 there was an international conference between local and regional administrations, universities, town and traffic planners etc., in Brescia/Italy, whose results were later forwarded in several languages and 388 pages to the interested public, under the title „Living and Walking in Cities – Town planning and infrastructure project for safety in city life“. This book can be downloaded in the Internet, and it was published by the Office for Official Publications of the EU in Luxembourg. It was the first appearance of the EU in the field of „walking policy“.

7. To make the subject more popular, I suggest
• the EU should examine general criteria for reports on local level – with explicit cooperation by civil society (associations, schools, citizens asked for by administrations, police, etc.), in the sense of a compilation of examples and proposals, and in the framework of participative democracy. A suchlike report could be displayed by a formal Recommendation or Communication (art. 288 TFEU). The objective of this report can be public consciousness, working with good practices, making use of the creativity of the citizens. There are already excellent reports on national levels, for example in Norway but also in Germany. The first approaches have been included in a EU Informal Council of Transport Infrastructure Ministers in Leipzig/Germany, in 2007.
• And whoever fulfils as a local government certain criteria, should obtain a EU certification. Even thinking and re-discussing periodically elements of a walking policy in a city council – this is what cities should be measured of, and why they can later hold a certificate of a „European Walking Space“ or similar.
• Furthermore, to overcome the lack of data, EUROSTAT (the Statistical Office of the EU Commission in Luxemburg) should include into their collections those data which have been compiled by the international walkers‘ scene
• Besides these spontaneous remarks and in this context, the initiative of the EU Commission for a SUMP (Sustainable Urban Mobility Planning) has to be mentioned, which among other issues covers walking as legitimate urban traffic. Climate change aspects, safety in the streets and the framework conditions for the local economy are indeed subjects for the EU – and of course it is good for our European discussion culture if we discuss if this would fall under the subsidiarity principle or not. As long as no concrete intervention into a particular city is carried out, there is no subsidiarity principle violated.

This is visible also in a legislative package which should be drafted ready by the end of this year; it includes three Urban Mobility initiatives on the basis of the White Paper on Transport from 2011, e.g.:
– the set-up of sustainable urban mobility plans which should link EU funds to sustainable urban transport strategies – this will be a big leap indeed,
– a framework for urban road user charging and access restriction zones (I mentioned above e.g. the „city toll“),
– a framework for zero-emission logistics in major urban centres by 2030. The Frankfurt IAA – International Car Exhibition leaves hope that now some producers push the accelerator for the electric car, finally.

8. Also a social argument must be mentioned: In today’s society more and more citizens above all in hectic cities prefer at least sometimes to „de-accelerate“ their life, go slow and get more local impressions, live according the principles of „high tech – hi touch“, of „Small is Beautiful“. Together with new ways like urban gardening, active involvement in historical houses, gardens or corners etc., walking is thought over as an alternative for one’s lifestyle, at least temporarily and regularly, and maybe together with intermodal connections (train/bus, individual (car) traffic). This goes hand in hand with the rapidly increasing phenomenon of carsharing, or hiring publicly available bicycles for a certain period. It has nothing to do with a cartoon person who tries to be alternative and is perhaps from the 1970/1980s. It is just a reaction to a restless life which often is demanded of us, for professional reasons, and it is partly a reaction on our financial and real economy crisis which may force people e.g. to drive back their mobility expenses.

So there is clear tendency or mega trend today, and this trend follows a double strategy – from the grassroots and the cities, from non-governmental organisations, maybe by public-private partnership if e.g. a railway provider offers cars or bicycles to rent – and from „above“, from the EU level where all this must be facilitated and appreciated. This is a challenge to the policy mix and to inter-institutional cooperation in administrations: Traditional transport policy includes now also urban sustainability, together with cross aspects to public health, environment, energy, agricultural, education, language, local government governance etc., and within urban sustainability there should be a locally recognised „walking policy“ as well, together with cross aspects e.g. to city toll, construction policy etc.

9. Already now, in context with the new outspoken „Cities of Tomorrow“ policy by the DG Regional Policy, it is thinkable that there exist first parliamentary questions or motions for a resolution (European Parliament) on walking or traffic safety for walkers etc., or first petitions by (walking) EU citizens who can feed in their problems since many decades in the European Parliament’s Committee on Petitions.

The European Parliament is to be identified as the natural ally of every European pedestrian or walker, as it is highly sensible for the interests of the ecological and healthy, but also of the weaker parts in traffic – and pedestrians are always weaker than a car. Therefore I recommend an adequate lobbying of Members of European Parliament – well prepared, including also the staff of the M.E.P’s (as many M.E.Ps will leave this issue also to their staff who in this respect have something to say!), not too demanding, not assuming that only walking is the one and only way of movement. It is just to bring a certain weight to the arguments for walking and the planning for walking.

10. This should be done not only towards the European Parliament, but also to the two consultative bodies of the EU, the European Economic and social Committee, but mainly to the Committee of Regions where there are professionals in this field as they are mostly from regional but also local administrations and parliaments. And I can imagine that the relevant services of the European Commission should also be invited – why not to an inter-institutional, fully legitimate lobby meeting for walking in today’s and tomorrow’s cities. I can imagine that this might precede an outing through the „walkable“ – or „unwalkable“? – districts of Brussels or any other town where it is held.

11. The first European Court of Justice (ECJ) case on „walking policy“ once will be for sure – e.g. if there is a preliminary ruling (art. 267 EU-T II [TFEU]), if e. g. there is an argument before any national court on a recommendation or Communication on Walking by the EU Commission, which has served as interpretation tool (or not) for the judges. This may be also the result of any dysfunctional zoning policy on local level which contradicts a possible Recommendation or Communication by the EU Commission.

12. There are also many small projects of the European Union where exchanges, so-called mobilities, the sharing of opinion and models are in the focus, e.g. the LLL (Life Long Learning) projects, until now LEONARDO DA VINCI, where international networking (sometimes even beyond the EU) can be exercised. I can imagine that e. g. (there is indeed existing an initiative for this in France) a networking of towns and cities in Europe will take place who have a „chemin des philosophes“, „Philosophenweg“, „Philosophers‘ Lane“ etc., where people used and use to go for a creative and re-creative walk, on the track of a philosopher. And these people who plan this intend also to create a European Economic Interest Grouping (EEIG), a specific legal structure for European cooperation where e.g. seminars, study trips etc. can be held, and where public and private members can work together. This is a dedicated legal structure for making cooperation permanent, e.g. between cities or town planners etc. This legal person which it is suffers only of not being known by most of the European organisations, be they a local government, be they a private company.

Like WALK21 is a relatively new event, walking is a new, a forthcoming element in transport policy, although exercised during several 10.000s of years. It should become more outspoken and self-evident. Pedestrians and walkers are not just someone „as well“, but should be in the focus, should be attracted by cities who therefore have a creative task. The more walkers, the more there is also a positive approach to local business – so a „walking policy“ has even an economic dimension, and approximately 70% of all EU citizens live in cities and towns.

There may be walking hardliners who go barefoot in the snow for kilometers, or who are intolerant towards cyclists or car drivers. This is part of the human nature, and most people see this as exaggerated. And Walking is not everything. But everything without any walking is nothing. This is seen also in the European institutions. After all, the question for a European Walking Policy should be replied like this: No, we don’t need a EU Walking Policy – but yes, we need something like this.

Ukraine Brings Tail Wind For European Elections

By Hans-Jürgen Zahorka

The Eastern Partnership of the EU is indeed a thrilling subject today. While Belarus and Azerbaijan, due to their domestic system elements, will not be more than spectators, Armenia has been subject to strange pressure by Russia which tried successfully to play Azerbaijan against Armenia which is sensible in the Nagorno Karabakh issue – and the strangest aspect of this is that Armenia’s parliamentary democracy will need some more development, as the National Assembly which was ready to sign the Association Agreement after almost four years of negotitions after their end on 24.7.2013 today does not want to see the draft any more.

Moldova and Georgia – the latter because it is immune now against Russian pressure, as it cut its involvement with Russia-led CIS after a short armed conflict in 2008 – will sign an Association Agreement with the EU, following the Partnership & Cooperation Agreements from the late 1990s. Moldova and Georgia will thus end up in the political and economic system the EU creates even if this one had not the intention to implement it, as the EU Single Market, the social system of the EU and the rule of law alone exercise attraction. Alone this, and the fact that civil society in Armenia is basically against a membership what is often called „Soviet Union 2.0“, the Eurasian Customs Union, shows clearly that the European Union is not „out“ as a model in third countries. It is perhaps more appreciated there than at present within the EU.

This is underligned by the developments of the last days in Ukraine. An average political person from the EU would probably not have foreseen the explosion of civil society, opposition, students – and citizens from everywhere! – against the Yanukovich regime. Ten thousands of people demonstrated and continue to demonstrate against the decision of the national authorities not to follow any more the EU-Ukraine Association Agreement. This had been negotiated by the same Ukrainian government which says now no to it!, ahhh, it would be so ridiculous if it weren’t that sad. The real reasons? Well, a mix of interests of Putin’s Moscow who however says he is only against Ukraine’s NATO membership (which is not in discussion at all), but at the same time does everything to prevent Ukraine to come closer to the EU. The EU is not a military alliance, if at all it operates soft power only. This shows that the ex-KGB man Vladimir Putin is still and fully on the fundament of the former Cold War of which we all had thought that it is over. This is not only archconservative, it is reactionary. The second reason for Ukraine’s position (well, the one of the regime and a majority in the parliament) lies in the – evidently limited – thinking dimension of Yanukovich, in his psychology. He really hates his predecessor, Ms. Timoshenko, who is now in prison. One must imagine what this means: A former federal chancellor of Germany who has negotiated with the US in an energy deal and who possibly did not make an optimal deal, is thrown in prison once his term is finished. These issues are to be regulated with the voting Bulletin and with nothing else (and: with a honest voting, Mr. Yanukovich!).

So the Ukrainians demonstrate now, what they did once before with success – the „Orange Revolution“. It is evident, that Mr. Putin does not fear anything more than just this, for he has to see a possible enlargement of such a movement to Russia. It is not easy for EU Europeans to show solidarity, although many of us would love to bring wine and cake to the people in the streets. It is a lucky case that with Klitchko a prominent sportsman is at the top of the demonstrators – hopefully he may be the next president of Ukraine.

Above all, the demonstrations, with European flags, with Ukrainian flags, with decided and intelligent people who want their country closer to the model of the European Union and away from the old-fashioned, authoritarian model of Russia and old Ukraine, are a clear tail wind for the European Union. Many of EU Europeans think now what to do before the European Parliament elections on 25.5.2014, how to mobilize people, how to bring them to the polls. To take part in European Parliament elections – this is the dream of many Ukrainians, and we here have to convince People to go to the polls – aren’t we in a ga-ga world? Few of the EU citizens are aware of this, but all of them should keep this in mind.

Sorry that I cannot bring cake & wine to the demonstrators, but this is nothing more than a clear expression of sympathy and solidarity. Like the warm pullovers which are now knitted by babushkas for otherwise freezing devushkas.

http://www.eufaj.eu

What the German Federal Elections Mean For Europe

Germany has had today its general election, with the following results (as to 22.30 h – with possible, but not very probable changes, as all figures are approximative depending of the different Extrapolation calculations):
1. The ruling parties, the Christian Democrats from CDU and CSU in Bavaria, managed to accrue more than 8% growth, coming to approx. 42% and having almost the majority of the seats but not more than 50% of them. This has really been a predictable victory for Chancellor Angela Merkel who had followed a cautious policymaking in the past, leaning towards the centre.
2. The Social Democrats got 26%, around 3% more than at the last elections. This is not enough for any coalition either with the Greens alone, or with the Greens and Die Linke, although such a coalition has been clearly excluded. However, a Grand Coalition together with the CDU/CSU (which was wanted by a very large percentage of the voters) is not excluded and remains probably, as there were successful Grand Coalitions in the past.
4. The Liberals of the FDP achieved only 4,7% and therefore around 10% less than at the elections in 2009. They dropped out of the Bundestag (where 5% are the minimum to be represented there), and this for the first time since the Federal Republic exists. They will have to undergo a strong revirement. Their potential will be sufficient in future elections to be part of the Federal Parliament, provided they do change their presentation. They were just not voted by sufficient voters in this general election – but this might be repeated if they don’t follow the fais-gaffe principle.
5. The Greens dropped back to 8,3%, from almost 12 in 2009. The Greens are today an „old party“, as they have many people who ran it already in the 1980s (!) and have adapted a more or less adapted political style compared with all the others. They did not advocate one single issue alone, and at the same time they had competitors from The Pirates and were not any more a single-purpose movement on ecology and peace issues. So they will have also to adapt to the permanently changing party landscape.
6. Die Linke (The Left) has obtained 8,6% and therefore around 3,5 less than in 2009. Die Linke is a conglomerate between East German regional nostalgo-voters mostly of a certain age, to abstract it somehow, and West German combined forces of decided trade unionists, deceived social democratic voters, and former (?) chaotic cacophonists from the orthodox left.
7. The AfD (Alternative für Deutschland), a single-purpose movement who wants to destroy the euro got not enough for a parliamentary representation with 4,8%. But for the first participation in an election it is relatively successful, however it was evident that this strange protest movement could attract some voters with their „no“ to the euro alone, in view of the voter-intransparent measures for bailout of some EU Partners. For instance very, very few people in Germany know that the amount spent for these economies is very low, and that Germany made high profits by ist own state bonds right now. There was no decided move against the AfD call for leaving the euro – by nobody. At the European election there will be no way to ignore these issues.
The AfD – see my former blog on them – is after all a right-wing protest movement which had obtained today 440.000 votes from the Liberals (FDP) who partly were openly against the euro and the bailouts (namely with their libertarian wing), 360.000 from Die Linke (which shows that former protest voters got another landing Strip now), and 300.000 voters from the Christian Democrats (most of them very conservative and normally not too well informed voters tending to the right), and 290.000 from previous non-voters. Here we may have a relatively well prepared movement to run in the European elections in May 2014, with an orientation comparable to the British UKIP, some of the British Tories, the Austrian right-wing parties like FPÖ etc., or the Flemish, Dutch or Scandinavian protest and anti-integration parties, or the French Front National. It will be a task for in particular the CDU/CSU once to argue with real arguments and not only placative theses. The AfD will see a certain danger in being identified with well-known right extremists, fervent anti-Europeans and some arguments which will isolate this party from the mainstream – all this may be able to keep them also in the EU elections at a low percentage, but they would get seats over a threshold of only 3% and not 5% like at national elections. So this may turn pout to be a conglomerate of anti-European voices, with Little to no effect in the European Parliament, but anyway with a possible representation there. And the more general anti-political party feelings are underway, the more AfD will profit of them – amd vice-versa.
8. The Pirate Party had only 1,2% and may disappear – in particular if some other parties will take up their arguments (may be the Greens?). They have not been anti-European at all, but restricted their support only to „their“ clientele issues.

The voter as such is the winner – after several times of turnout decrease the turnout increased today and approximately 74% have been achieved.

What does this mean for the European Union?

1. There was a clear case of stability and calculability in the German elections, also as the EU as such is not any major issue between the parties.
2. There will be a certain temptation for the (assumed) governing parties, in particular the CDU/CSU and the Social Democrats, to withdraw sometimes to some German-national sounds. However, these are not popular within (and beyond) Germany. The public argument with the new AfD in the European elections may lead some politicians of the big parties to follow a Populist and a not anti- but more non-European direction. This will be and has to be corrected immediately by the parties concerned. In this context it has to be followed where dedicated Europeans within the CDU remain: present Minister of Finance Wolfgang Schäuble, and present Minister of Labour and Social Affairs, Ursula von der Leyen.
3. In the Liberal Party FDP there will be a totally new determination of all policies. It has to be kept in mind that after WWII the FDP was a fief for transformed nazis (all parties suffered of this, but in particular the Liberals who in the early 1950s saw a „putsch“ attempt by these backward forces which however was defeated), later also for some German-nationally thinking people, and now also for libertarians (Frank Scheffler). It will be interesting if and how the two latter mentioned wings can de facto find together and what consequences this has for the EP elections. Until now, the German Liberals are represented there by convinced Europeans, and they should concentrate onthe issue of civil liberties – where they have a great tradition.
4. No matter which coalition will govern Germany in the future, the future German government now will have a closer look on how the economy revs up again, how other EU Member States will include structural reforms in their policies (this will include also Italy, and there are only very few Geman politicians who can „deal“ with Italians!), and will have a certain look on a policy mix between investment and austerity. Austerity will be cutting of state consumption expenses – and this is right and also followed in the EU partner states, except with those whose well is to be dried out.
5. While there will be no major changes in German European policy in the near future, it may be expected that Germany may go more under the wings of a European Foreign Policy than ever, however in a relatively modest way, if one can develop foreign policy in a linear way. But issues like the Eastern Partnership, Russia, Syria and the consequences of the Arab Spring indicate this, as well as the transatlantic free trade area negotiations.

After all, the most innovative in German European policy may be that this will not change very much, maybe with a certain drive towards a cautious „more Europe rathen than less Europe“. As the European Union with all its acquis is clearly in the interest of the German people who drove well with this since 1953, one can be optimistic that Europe will remain out of all party disputes. However, only few initiatives can be expected to bring Europe ahead in greater steps; in this context the necessary and immanent revival of Franco-German cooperation, hopefully together with Poland as an additonal partner, will bring some progress. With the probably very stable German coalition government, which in Europe issues will be supported by a part of the opposition (not Die Linke probably, except in some cases), the eletions from 22.9.2013 thus confirmed a stable Germany, which now can better than ever manage to contain the debt crisis in the EU. The first figures – also from Greece, cyprus, Spain, Portugal and Ireland – are a cause for optimism.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

What the Association Agreement EU – Armenia Really Says And What It Means For The Economy

By Hans-Jürgen Zahorka

The text of the Association Agreement (AA) and the Deep and Comprehensive Free Trade Agreement (DCFTA) between the EU and Armenia is still unknown to the grand public. However, it can be assumed that all agreements between the EU and the Eastern Partnership Member States will be very similar and even coincident in very many aspects.

The EU-Ukraine AA is known, at least from a draft version. It comprises more than 900 pages and has lots of provisions which refer to detailed trade issues, EU customs numbers, and many trade details. This AA is not only a new version of the old Partnership and Cooperation Agreement (PCA), but as a detailed document in particular for the economy even a roadmap to further EU integration. Although this was never spoken out, its finality could be in a number of years the logical step of the AA countries from the Eastern Partnership of an application to accession to the European Union. Armenia could feel to be stimulated to do exactly this, after some years, for economic and political reasons; the latter exactly then if Russia would follow in a linear way its present policy. Of course this then depends if Armenia would then still have any sovereignty at all. But the Customs Union in ist present form would turn out as a centrifugal solution for Armenia, whereas the EU Agreements would be of centripetal and concentric effect.

There are lots of tasks in approximation in these AAs – from extensive harmonization to safety rules for products (e.g. product safety, product liability, toys, electromagnetic appliances, pressure vessels etc.), company law (the EU Directives will have to be taken over, by a kind of „transposition“ very parallel to the EU), to general clauses like the common heritage as well as the one for European integration, and to many dozens of pages with lists for accepting geographical origins for food products, wines etc.

Whoever flies over this text will see that the Eastern Partnership countries will be sooner or later a part of the EU Singe Market, a huge market without borders and custom controls, with a lot of purchase power, and the idol of all other regional integrations in the world. The Eurasian Union has obtained the name „USSR 2.0“ – not without reasons, as Russia will always be the dominant power, and is already so in the Customs Union. It is still to short to give a final verdict about the Customs Union now, but it does not always funcitn well where it should – this also to some Soviet-style mentalities within the respective member states.

The mistake of the EU may be that it never boasts of this success – it is too modest. This can be understood, as it is no single state structure but one of cooperation and integration of now 28 Member States, of a structure which never had any tradition or history of imperialism or making other peoples its slaves. Its communication lines are targeted to the inside of the EU only, and then more to its mere functionalities. When it comes to military force, the EU can rely only on its Soft Power – not on any Hard Power; the EU has no army, but is dependent of cooperation between its Member States. Is it therefore weak? No, as its Soft Power can be defined as the power of weakness, and as Hard Power of someone else can be defined as the weakness of power. The power of weakness is its integration, the cohesion of its people when confronted with EU principles, and that it is self-evident to be now in the EU, which has created a period of peace among the Member States longer than at any time before in history, and we are not at the end of our history.

When Armenia and the EU trumpeted both on 24th July 2013, they were both happy to have finished the draft of their bilateral agreement, which may have between 800 and 900 pages. Six weeks later, all this was suddenly in vain, after one mere talk between the Armenian and the Russian presidents? It must be clear that this agreement of almost 1.000 pages cannot be have negotiated with the purpose of not being put into power. The absolute contrary was the case, and this almost for four years. This is what it makes evident that Armenia encountered some extraordinary pressure. This was on 11./12.7.2013 also exactly the subject of the famous Statement of Commissioner Stefan Füle and of a cross-party tabled resolution of the European Parliament – both very particular measures. But if one examines what has been said about Putin and Russian foreign policy before in many European Parliament articulations, there is one logical line, namely that the EU wants e.g. civil freedoms for Russian citizens like for its own. But this is not the place to argue about minority treatment, xenophobia, selective justice, and administrative corruption etc. in Russia.

Now some people from Armenia spoke recently to sign now anyway the Association Agreement, but not the DCFTA. One of the „Whereas“ indents says however,

„DESIROUS of achieving economic integration, inter alia through a Deep and
Comprehensive Free Trade Area (DCFTA) as an integral part of this Agreement, in
compliance with rights and obligations arising out of the World Trade Organisation
(WTO) membership of the Parties, including through extensive regulatory
approximation;

which means clearly that the principal agreement will be the AA and then only as a secondary agreement the DCFTA (words underlined by the author). Therefore it may not be so easy to sign the AA only and not the DCFTA, without saying bye-bye to the project of the Eurasian Customs Union. The CU agreement does by far not go so deep in any approximation details and therefore in market integration (which, quantity-wise, would be to 165 mill. population of Russia, Kazakhstan and Belarus, compared to the 520 mill. of the 28 EU and 3 EEA/EFTA Member States). With the AA, Armenia would be continuously reformed in a way that its economy would be competitive on the European and therefore on the world markets. I do have serious doubts if this would be the case with the CU – who keeps oligarch appearances meaning that the economy would not be exposed to a real competition (for which Armenian competition law will be further adjusted, also the whole intellectual property law), where strategic investments will be in very few Russian hands (railway, telecommunication, energy etc.), and where there is no external reform pressure on the economy. The latter means, that Armenian economy would not proceed as well as it would be the case with its relevant relations to the EU. These would, by the way, also for the first time in an international framework agreement for Armenia, include the protection of the environment, and social standards, and health and safety at the workplace – just to name a few.

The next indent of the AA:

„RECOGNIZING that such a Deep and Comprehensive Free Trade Area, linked to the
broader process of legislative approximation, shall contribute to further economic
integration with the European Union Internal Market as envisaged in this Agreement“,

is nothing else what has been already written in the old PCA from 1996. Therefore this (new) AA has no impact on security etc. It leaves the finality to the respective countries, i. e. if they after some years want to join the EU as Member States, it will be their affair at first, as it was until now.
The truth behind all this seems to be that in particular Vladimir Putin is scared of the European model, which is defined in the articles 2 et al. of the EU-Treaty (Lisbon Treaty), with values like human dignity, freedom, democracy, equality, rule of law, human rights, and a society based on pluralism, non-discrimination, tolerance, justice and solidarity, as well as equality between women and men. Of course, we all have to fight in the EU every day to keep these pillars of human existence – but Putin and his regime, although being more liberal than former Soviets, is committed to these things mainly in words, in legal articles, but certainly not always de facto. Whoever doubts this position – well, this would need another article. So, like Georgia, like Moldova, like Ukraine, the Armenian government should have made clear to Russia that its geographical position would drive it to be an excellent bridge between Russia and the European Union, and that being in the same security alliance does not bother it to keep this bridge function (there is no other security alliance in the world which demands of its member countries to come into a customs union).

What scares me even more than the position of the Armenian president, who might not be the most gifted economist on earth, is that from his own parliamentary group, the Republican Party, came no big objection, not even a thorough discussion about the whole scheme, but only justifications „sans justificatif“. Is this a consecration army without any autonomous will – like it exists in all other free parliaments? Is there really a parliamentary majority in Armenia who swallows this without any discussion? Some people in the EU say, if so, Armenia can join „USSR 2.0“, and the European Union will wave good-bye. It is indeed a matter of political culture that a parliamentary majority group discusses this thoroughly. The first signs, however, were not very encouraging. And, by the way, we now „interfere“ in other countries‘ politics – there is no domestic policy any more anywhere, but so far this was not be heard anywhere. At least this!

After all, there are still some options for Armenia. Austria was under a likewise pressure from the Soviet Union between 1986 and 1994, but it resisted. I took part in many discussions in this country at that time, when some Russian generals or deputy ministers – who in every democracy keep their mouth in the domain of foreign policy of other countries who do not directly threaten theirs – expressed themselves in the usual, rude way. Let them bark, again – this is good for the lungs. Armenia could have – and still can – made her security concerns to the object of a debate within the EU. As she agrees to the OSCE Minsk Group principles, it could be easy to launch also an EU debate on this basis. After all, nobody from the EU provides Azerbaijan with weapons worth several billions of euro.
Some day – and not too far in the future – it must be clear that also the European Union will have elements of a common foreign policy (it starts with elements, yes), and that the EU will not have a too-Christian attitude to offer the left cheek if it gets a slap on its right cheek. The EU can also withdraw its face, what nobody wants right now (out of Moscow). The President of Armenia should verify once more, if he wants to become totally incredible and incomprehensible, or if he really steers his country through a possible rough sea. This should go together with a creative diplomacy: towards the possible „double-pack“ neighbour Georgia, to Turkey, to Russia, to the other Eastern Partnership countries, and regarding also Nagorno-Karabakh to Azerbaijan, too. In these contexts, Armenia is well advised to delegate as much as possible to its civil society which is always more accepted than any government initiative.

Armenia is after all not yet „lost“, but it is not five, but two minutes before High Noon.

Did ESISC Become the Victim of Azerbaijan’s „Caviar Diplomacy“ – Or Is It Just A Normal Lobbying Job?

By Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

The „European Strategic Intelligence and Security Center“ has published under the date of 9.9.2013 a paper: ANALYSIS – THE REPUBLIC OF AZERBAIJAN: A MODEL OF GOOD GOVERNANCE, written by William Racimora, „Vice-CEO“ of the ESISC in Brussels. This organisation offers also lobbying services. On its homepage (http://www.esisc.org) it writes: „In recent years, Brussels has become one of the centers of the world. More than 80% of national legislatures of the member-states of the European Union have their origins here…“. What??? Already this shows a deep basic knowledge of European politics and history… What about the remaining 20% – where is their origin? 🙂 It continues after various other phrases: „… we established a branch specifically dedicated to lobbying. We are able to defend the complex or delicate operations of states or companies through our modern and effective lobbying practice. Our lobbying goes beyond just the structures of the European Union (the Commission, the Parliament, and the Council), as we regularly interact with the Council of Europe, various member-states (at the government-level or at the level of elected assemblies), the United States, the U.N., and various Arab, African or Asian states. Our lobbying operations can defend an industrial portfolio, the economic opening of a new market, or the political interests of a state.“

Nothing against lobbying, Mr. Vice-CEO, and when this lobbying as you try it turns out what is in your text under
http://www.esisc.org/upload/publications/analyses/the-republic-of-azerbaijan-a-model-of-good-governance/Analysis%20-%20The%20Republic%20of%20Azerbaijan%20A%20model%20of%20good%20governance.pdf, then you do not need to declare this as a lobbying text. Because this your text is so uncritical to those who must have paid you, so unilateral good, not at all trying to deal with negative aspects, so beaming in a „well-informed“ way of an authoritarian developing country in the 1970s, that you must be a „victim“ of the „Caviar Diplomacy“ of the Azerbaijani regime. No word about the fact that the country is among the top of the pops in corruption (where it would have been good to declare that the next president wants to try to wipe it out, of course), no word about the „extremely good“ relations to the Council of Europe legal conventions (as seen in the Ramilov case), no word about the many young and gifted people thrown in prison for critical journalism or blogging, nothing about the resolution of the European Parliament and the report of the Council of Europe, both on the state of democracry and human rights, nothing about its proven reputation as author of „Caviar Diplomacy“, nothing about human rights offences when distributing places in boards of civil society associations, nothing about the not too soft way of tearing down houses in the heart of Baku, nothing about beating up journalists and opposition people, nothing about prohibiting other opposition candidates, nothing about the contested practices of SOCAR (the state petrol Company) which are said to be partly in the pockets of some „oiligarchs“, and so on … In the eyes of ESISC the country is just a „model of good governance“. This is so funny what the Vice-CEO writes that you will have big difficulties to be taken serious in the future, and maybe a crash course in human rights and democracy, or in effective lobbying, should be suffered? Everything what you wrote, write and will write has either to be set aside immediately or very critically examined. This is an excellent example how an organisation, who is evidently paid (for nobody in Europe who wants to be taken serious can write such a nonsense without being paid for this) to publish this a couple of weeks before the elections, can become deploringly someone whom nobody believes anymore. We know that it is Azerbaijan’s way to work with 100% of laus tibi only – which is remarkably unprofessional, by the way. For the Azerbaijan regime, and for the lobbying company.

So everyone in the EU working for good governance should read this paper to learn about the standards of Azerbaijan…, on a Website in which no imprint, no legal form of the ESISC has been found, just a link to „Brussels Invest & Export“, the foreign trade and investments agency of the Brussels – Capital Region who evidently helped with the Website or with General funding. Maybe this is one of the examples of „good governance“.

Armenia, the Russia-led Eurasian Customs Union, and the European Union: Will the Finality be Armenia’s Accession to the EU?

By Hans-Jürgen Zahorka

Since 1999 I was several times in Armenia, in journalistic missions and as Government Advisor, mainly for the EU. In 2003, during an assignment in AEPLAC (Armenian-European Political and Legal Advice Center), I had some spare time and wrote, after thorough consultations mainly with three former ministers (economy, finances) a scenario on Armenia’s accession to the EU. At this time, there was a very positive thinking towards a more active European policy in wide parts of the government and public life, and one of the „spinoff“ products following the essay I wrote was that there was soon the founding meeting of the Armenian chapter of the European Movement.

In the years to come, this article was more quoted and discussed (e.g. in Internet fora) than it could be expected. It can be seen in English on the Website of LIBERTAS – European Institute under: http://www.libertas-institut.com/de/PDF/Armenia%20ante%20portas.pdf, and in 2003 there was also a German version (it is not easy to translate as a German one’s English text into German, I remember) in ADK 1-2/2003 (Armenisch-Deutsche Korrespondenz, Vierteljahresschrift der Deutsch-Armenischen Gesellschaft), which was also published on our Website: http://www.libertas-institut.com/de/PDF/ArmeniaDE.pdf

Now we are in the situation that Russia is actively reluctant against an orientation by some of the former parts of the Soviet Union towards the EU. Besides the legitimate question, if Russia’s government does not try to turn back the wheel, it must be said that the Eurasian Customs Union as first stage of a Eurasian Union is of course, as a regional integrstion, fully legitimate – but it has to be taken into accouont that a regional integration can function only if the participant countries go voluntarily into this integration. But as we see and what has not be mentioned in detail (well, if someone wants, this is possible of course), Russia tries almost everything to „keep“ the European CIS Member States (Georgia has left the CIS in 2008) – Belarus, Azerbaijan, Armenia, Georgia, Ukraine and Moldova – on a lane leading to the Eurasia Customs Union, and later to the Eurasian Union. Belarus and Azerbaijan are not able to come closer to the EU, at least not under their present governments. Ukraine, Moldova, Georgia and Armenia have negotiated an Association Agreement which is the successor of the PCA (Partnership and Association Agreement) from the late 1990s which was valid 10 years with automatic extension until it would be replaced by ist successor agreement – the Association Agreement (AA). In addition and a „goodie“ for the economies, there is also a DCFTA – Deep and Comprehensive Free Trade Agreement which should be signed at the Summit Meeting of the Eastern Partnership end of November 2013 in Vilnius/Lithuania.

But Russia wants to prevent this: Moldovan wines can at present not be exported to Russia (for „standards‘ reasons“ – but the EU which has widely feared very high standards to food imports does continue to import Moldovan wine …, and there are indeed no Quality changes to the worse with the good Moldovan wines), Ukraine exports to Russia have been stopped at the borders by the Russian administration, until Ukraine and the EU coughed … Georgia – well, their Prime Minister said, we will consider the Customs Union, but we have at present no opinion on this – this was quite friendly to MOCKBA, but it raised a domestic furor in Georgia, and the Prime Minister will leave office soon. Anyway, Georgia had a short armed conflict in 2008 with Russia, and since then, and not only then, the relations between both are a bit suspended asymetrically, and they cannot be called „normal“. In Georgia, there is an all-party coalition in favour of more European integration, and this did not change at the last general election.

The orientation of these four Eastern Partnership countries, including Armenia, towards the EU has been evident as the EU in the framework of its European Neighbourhood Policy (ENP) has always tried to reform these former kommando economies – with a huge amount of detailed legal approximation which had and still has to be implemented. This covers among others competition and state aid policy, de-monopolization, pegging to technical EU standards and norms (which are relevant far beyond the EU), regulation of utilities and transport (rail, air traffic etc.), intellectual property rights, energy and environment law etc. Russia and its Customs Union remain advocating some key sectors, like railway, energy, telecommunications. Indeed, Russia holds all or big parts of these sectors in Armenia, and they are strategic. One has also to take into account that there are long and deep (and emotional) links in providing security from Russia for Armenia. However, one has also to ask what Russia did objectively that the Nagorno-Karabakh conflict was won by the ethnic Armenians from there in the beginning of the 1990s, and why Russia which has army bases in Armenia has now committed to provide Azerbaijan (which implicitely has threatened several times Armenia to conquer back Nagorno-Karabakh by the use of force) with arms worth several billions of euros. There were evidently Russian pressions, at present unknown in detail, on the Armenian President, to agree during a summit meeting on 3.9.2013 to include Armenia into the Eurasian Customs Union and later into the Eurasian Union. No politician would have said this without any pressions, just six weeks after four years of negotiations with the EU, having praised the objectives of these negotiations all the time. Big parts of Armenian civil society are protesting this, the European Parliament has adopted on 12.9.2013 a multi-party tabled motion quasi unanimously, and we had to state, too, that the European media did not much react on all of this…

The EU Commissioner Stefan Füle made very clear comments before the European Parliament on 11.9.2013. It is not necessary to repeat them here, just see http://europa.eu/rapid/press-release_SPEECH-13-687_en.htm. The question is what will be the finality of Armenia vis-à-vis the European Union. I know many Armenians who fit fully into the pattern one has for an EU citizen, and the whole country’s culture is on one line with the EU, and nowadays the political culture more or less, too. Now, with the DCFTA many, even uncountable new links for small and medium enterprises could emerge, and this would really bring the country Forward. The expectations are in solid double-digit numbers for the growth of the Armenian GNP, if the DCFTA will be in power, within several years. Both, the Eurasian Customs Union and the DCFTA, are not compatible, and Armenia which cannot even form a common customs territory with the Customs Union, would be worse off with having signed both. So the moment of truth approaches:
– will Armenia sign only the AA plus DCFTA (they belong together, as a double-pack), which would require some explications to Russia (if they insist),
– or will it sign only the AA and not the DCFTA (which will cut the wings of the AA in a wide, yet unknown extent, and would stall the ongoing reform efforts of the country to be on line with the social market economies of the EU, and would also endanger trade flows – Armenia has more foreign trade with the EU than with Russia; statistically it is evident, but the EU Member States are counted separately, although the EU follows one Common External Commerce Policy, art. 206 et al. TFEU/Lisbon Treaty, and is counted in other countries as one statistical unit),
– or will it sign the Customs Union Treaty only, indicating this by a non-signature of the both agreements with the EU? Then it would give green light to oligarchs, more strategic investment by Russia and on the Long run an oligarchy and no competition at least in the relevant sectors. The whole country would be set back as it would not be reformed in a continuous way. It would then opt to be on one line with the economies of Russia (which has raw materials, different from Armmenia), of the ridiculous dictator-determined one of Belarus, and of the Central Asian System – and I mean very Central Asian!. and it is not the place to speak about this now and here – of Kazakhstan. Maybe Kyrgyzstan and Tajikistan will be in the boat in some months, but this can be in no way a decision parameter for Armenia.

Nobody with some brain – sorry – could understand the latter possible decision. Only dubious and shallow words by Vladimir Putin must have induced to bring Armenia in today’s impossible position, after all. The Armenian President did not look to well and happy on the TV Screen when he came out of the meetings. What has been perceived as not too positive were the assurances given by all Armenian government officials and representatives. They should remember the fact that they cannot be pregnant only to 50%.

The long-term consequence of everything is that Armenia will forward an application to become a Member State of the EU. Maybe not within the next five years – but I exclude nothing. The security issues, at least with Turkey, can and will be solved, as they are also in the interest of Ankara, not at least in view of her EU negotiations. And the more Armenia will be uncoupled from EU growth and parallel countries like Ukraine, Moldova and above all Georgia, the more the civil society trend will be in favour of the EU. The EU is not an imperialist entity, but it has a huge centripetal potential – in economy, but also in its democratic systems. And Armenia has happily a more or less functioning civil society, which can and will have a feedback on its political system. And as the EU knows perfectly that a possible „no“ to the EU by Armenia is not the will of the people and not even of the government in Yerevan (why would they have drunk so much mulberry vodka or konjak on 24.7.2013, when the DCFTA negotiations were finished?!), the doors to the EU will not be closed. And isn’t it encouraging that e.g. in EU universities there is at present made serious research on a possible roadmap of Armenia towards an EU accession?

We will publish as a book what comes out there, for the EU must say „B“ when they say „A“. It will be on the market still this year, and it will induce any discussions. And Armenia as a European country, clearly anchoring in the standards of the Council of Europe, cannot be denied any further integration – in particular as Georgia will exactly do the same, and a double-pack is easier for the EU. And last but not least, the Russian system got some further spots of civil society influence: the Mayor elections in Moscow, but also in Ekaterinburg. Under these auspices, Mr. Putin should get the next Sakharov Prize of the European Parliament to promote inconsciously European values in Armenia – or the next medical Nobel Prize, as a Polish M.E.P. has proposed with a ;), as he opened the eyes of many with his – let’s call it: funny – behaviour towards the Eastern PArtnership countries. I look forward to heated or cool debates in the South Caucasus on these matters.

60th Anniversary for the European Convention on Human Rights: Happy Birthday, Happy Growth!

On 3 September 1953 the European Convention on Human Rights (ECHR) entered into force. Besides the many congratulations this Council of Europe Convention got, gets and will get I just want to make some short remarks on the ECHR.

1. Europeans are often envied for this Convention. I discussed in North America, the Caribbean, in Africa and in Asia the function of the ECHR, and every time there was a spontaneous consensus in favour of such an instrument also in the respective regions. Especially the individual complaint was and is seen as an effective tool for everybody’s access to law.

2. With more than 500,000 applications since its enry into force and around 16.500 judgments, the ECHR has set up real European rule of law standards, and many elements of a European litigation culture. We can be proud of this. In my 16 years of government advice there were at every assignment some possible applicants as well as several lawyers who approached me „just because you are a lawyer from Europe …“ and told me „their“ story; some of them could be convinced that a ECHR case would have probably no success, some others have been encouraged to follow their Intention. But it brings me to the crucial question of a follow-up: what happens e.g. if a state does not comply with the judgment, or only partly? The ECHR still needs a lot of publicity, and it should be included in the education (in constitutional law probably) of every law student. The more popular, the more self-evident and well known this Convention is, the better.

3. The ECHR will have a considerable growth in application when the European Union will join it. Together with the European Union Charter of Fundamental Rights, which has strong and very modern tendencies not only towards social and economic fundamental rights, the EU citizens will have an ever more efficient system of human and fundamental rights’protection. At the same time, the Vienna-based Fundamental Rights Agency of the EU should have, in full legitimacy, to work as a secondary outreach also for the ECHR.

4. In the EU, among the signatory states of the ECHR. there are at present negative tendencies: In particular it must be allowed to mention the British Government who is responsible for the fact that the EU Charter of Fundamental RIghts is not explicitly part of the Lisbon Treaties but only mentioned in a footnote. This does not decrease the validitiy, but the visibility. Also, the next General Elections in UK must be observed thoroughly if the governing Tories will try to withdraw from the ECHR – this is what one hears since several months from the relevant ministries. It Comes in a time with not very much respect of personal data privacy, by the British Secret Service, by incredible intimidation practices to journalists (The Guardian), and to intimidation to famiy members of journalists (the Miranda Case). Any withdrawal would be a catastrophic move, as the ECHR has been set up on the explicit proposal of the British Government. Created by Churchill – abolished by Cameron? In UK, one should be proud of the ECHR standards and should try to celebrate this. But it seems to be a new policy attempt by the Conservative Party, caused by its right and populist wing. It should be rather examined if the UK, after many centuries of an unwritten Constitution, would not be better off with a written Constitution, which reminds the administration more than a regulation vacuum of what to do or not. It is regrettable that this has to be said to the government of a country where the habeas corpus act has been created, as well as the Magna Charta, and this in the 13th century. In addition the UK withdrawal from the ECHR would be a step of erosion and a bad example for countries who regret today, too, that they have signed the ECHR. It is evident, which countries! In order not to argue too long, I just mention the UK Human RIghts Blog, with a recent article by Adam Wagner, at http://ukhumanrightsblog.com/2013/09/03/why-we-would-be-mad-to-leave-our-european-convention-on-human-rights/ .

Ad multos annos to the European Convention on Human Rights, and a considerable growth in use – in all European states, but also a good imitation in other parts of the world!

Hans-Jürgen Zahorka

Chief Editor, European Union Foreign Affairs Journal

Dobrodošli u Europsku Uniju, dragi Hrvati!

… which means: Welcome in the European Union, dear Croatians! July 1st is gone some days now, but nevertheless – and with my wellknown delay 😉 – the Croatians should be welcomed in the EU also here.

Yes, it is true that Croatia still has a lot to do – but they would have so also without the EU, and they will have to do so permanently: They will be busy in accelerating and reforming trials (as we do all!), hence the rule of law in their country, they will have to clean up with the last remnants of the war with Serbia (where Serbia has never been an example for them), they will have to comply with many environment and energy regulations, etc. Croatia, as every European state. is and will remain a permanent construction site. So, like ours, this country will remain a permanent task for their citizens.

On the other hand: what can Croatia throw on the common table of the EU? Not only Slovenia, but also Croatia, which was even more part of the centripetal events after Tito in former Yugoslavia, is now an example for the other West Balkan countries – Macedonia, Montenegro, Serbia, Kosovo, Bosnia-Herzegovina and Albania (in free sequence!). They should approximate their legal system according to the EU, should train their civil servants, lawyers, judges and the responsibles from the economy, and they should find an „as-if“ solution – as if they were members of the EU already now. So Croatia could become a shing example for these countries. Croatia has a undertaken a long march now – I remember a small Jugo car from Zagreb which came always with  five young people from the Office of European Integration in 1998 and 1999 to Ljubljana/Slovenia, where I was posted to contribute with the approximation of the legislation towards the EU. Whenever we had a workshop, a seminar, they were present; in the last row, making notes like the European champions. But it worked very well, and I remember excellent discussions with them. This helped Croatia later to avoid big changes, as they have already been anticipated (like e.g. in company law). Croatia can also obtain quite a weight in international relations – even as a relatively small state, as this often has been shown by other EU Member States. Let’s look forward to a first successful intermediation initiative between Balkan states who have difficulties with each other (this is not only the case between Kosovo and Serbia!).

Furthermore, the Croatians have a young generation which has partly studied in the EU (but this is not necessary to succeed). They, together with those elder Croats who have made their own experience with Titoism will contribute to form the EU in the future. And from 1.7., the EU has a 24th official language (which is called yet „Croatian“ – we all have to see how the relationship towards Serbian, Bosnian, Montenegrin will develeop). And of course, the EU has now lots of islands and a pittoresque landscape at the Mediterranean… Together with a not too well-off economy in the country, there are lots of things to be done. And what was done, is well described by the former Croatian Consul in Munich, Ivan Simek. He wrote at the very end of his new book „The Forgotten Truth“ („Die vergessene Wahrheit“): for the creation of a European Croatia, „no victim was in vain“. Croatia has opted for a peaceful future, embedded in the EU. Wars like in and around Croatia are excluded within the EU, and this shows that the Robert Schuman speech from 1950 is still valid for several countries. Until they are safe within the EU, we can not afford to look aside.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal
www.eufaj.eu, eufaj@libertas-institut.com

A Remark pro domo: EUFAJ Is Now on Facebook

These days EUFAJ has entered Facebook. With this step, we want first to accelerate the communication with our readers and second to enlarge our outreach. At the same time, the recent events in many countries have confirmed that being on Facebook is no mistake for a paper.

It is interesting, how our community of „Likers“ is and will be composed. Just go on your Facebook page, if you have one, and then in the search box („Search for people, places and things“) write „European Union Foreign Affairs Journal„. Then you will be on the page, where in the next time all couple of days an issue of EUFAJ will be mentioned with its content and the links. We also publish our new blog entries, which in the last days had an increase in views of almost 600%

So if you have Facebook, you can be immediately and automatically alerted about our activities – including this blog (however, for this blog one can order easily alerts if a new entry has been made)

This Facebook Innovation for a journal, which for an organisation is totally different compared to an individual, is under the wings of our Junior Editor, Ofelya Sargsyan, who is now also the Social Media Coordinator with EUFAJ.

Hans-Jürgen Zahorka
Chief Editor, EUFAJ

Istanbul, Gezi Park: „This is only the beginning. We will continue“ – and the Consequences for a Possible Turkish EU Accession

Until some ago days I was a clear supporter of a Turkish EU accession – even if it would come later as foreseen, but in principle I used to say that it was a good objective. Since 1986, when Turkey applied to join the EU, and the then Turkish Ambassador at the EU explained me that this is a long-term view – for the EU and for Turkey. But now, after Prime Minister’s Erdogan handling of the Gezi Park crisis, I look in a disillusioned way on this issue. What has shocked the European Union:
– Mr. Erdogan did and does not take care at all what is thought in Europe about his belligerant rhethorics, and about his double play between conciliatory steps towards the protesters and his disproportionate and violent proceeding. Even what the US said, was not regarded at all.

– It was also a „positive shock“ that its common foreign policy functioned: The EU for once follows a very clear policy – expressed by the Commissioners Füle (for Enlargement) and Ashton (for Foreign Policy), and by the European Parliament. This was agreed some days ago in a resolution which was drafted by all the major groups in the European Parliament – it was not an accidental, but a very intended majority. In a few weeks, the European Council will meet …

– Erdogan committed mistakes after mistakes. He should, as an elected prime Minister, exercise his capacity of integration and inclusion. Instead of this, he mobilized and mobilized every means of verbal injuries towards the protesters („terrorists“ – like Al Qaida or likewise, but Erdogan meant the students, elder gentlemen, medical doctors, lawyers, housewives) which are just indecent. He later said the was in favour of talks, then not, then again, then he agreed to an ultimatum until Sunday, 16.6., then he let „clear“ the square already on Saturday, 15.6. This kind of hectic actionism does not convey the picture of a wise statesman, but of someone in subjective psychic danger. After all, he as Prime Minister is the commander-in-chief of the Turkish police which clearly exaggerated ist means against the eople – among which elder people picknicking peacefully in Gezi Park!

Mr. Erdogan showed all of a sudden that in a situation which could be an everyday’s issue in a functioning democracy he reacts unwise, very primitely, like his Syrian colleague even in giving those orders directed against the own people, unreflected, drumming his breast like a Gorilla, not listening outside voices who are not part of the game but remind him of some elementary standards.

For the European Union (which may be is in a „crisis“ of the public finances of some member states, but which is otherwise still going strong, Mr. Erdogan!), things with Turkey are now totally changed. Out of a petite reason there came a legitimacy crisis of the AKP System, starting cities like Istanbul, Ankara, Izmir et al. To put it clear: With a Turkey represented by Mr. Erogan’s values, an accession can never be reached. For the EU is also a community of values, as stipulated in art. 2, 3, 4, 6 and 9 EU Treaty. Now it becomes clear that Turkey does not want to reform its „minor“ Problems with journalists, poets, Armenians, unflexibility to excuse for mistakes in the past (again Armenians), and of course Cyprus, the Ankara protocol, and the non-acceptance to let Cypriot civilian aircraft fly over Turkey or to deal with its cargo ships.

The EU which may even open one more negotiation chapter in the next days and weeks (now they should Refrain from this!), will not and cannot go further in the direction of a closer relation to Turkey – with this government which shows what they think of humans. One can agree or not with Ms. Claudia Roth M.P., the Federal Chairwoman of the German Greens who is also Deputy Chair of the German-Turkish inter-parliamentarian Group, who happened to see the Events from tonight live in Istanbul, but in one thing she is undoubtedly right: „That is war! They chase people through the streets nd fire targeted tear gas grenades on persons.“ Which leads also to the reflection if all the training measures of the EU for the Turkish Police were in vain.

Turkey may suffer now an economic nose-dive as it turns out that one cannot sedate (and seduce) a people with economic liberalism alone, be it reached for the price of an authoritarian government.

Maybe with a certain delay, this is the beginning of the end of Mr. Erdogan’s regime. While the EU has of course to deal with this rude government, it is very open now for all alternatives which do not intend to turn back the time in the direction of a neo-osmanic empire,but of a modern, human-rights based democracy. And whoever wants his country into the system of the European Union, has to swallow that the EU is very, very interested into the details of the Turkish kind of rule of law. It will have to be made clear to the Turkish citizens that the EU, as a big ship on the ocean with little speed. but a valuable cargo, has stopped right before the Turkish port, which it does not enter because of some policies Mr. Erdogan represents. And I am very sure that from tonight there is now a new, durable conflict within Turkey – caused by the inflexible, constipated policy of Erdogan. He will end as an episode of Turkish politics.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal (EUFAJ)
www.eufaj.eu

No EU – Ukraine Association Agreement Signatures With Selective Justice

Having been called today from Kiev/Ukraine by a quite prominent person, if after the European Court of Human RIghts Judgment in the case of Tymoshenk v. Ukraine the EU Association Agreement of this country willbe signed, I had to say clearly: No. Because nobody in the European Union can and will afford to say yes to an agreement with a European country which has such a bad record in Human Rights (with „selective justice“, i. e. a judiciary which acts not equal on everyone). It is too uncivilised for a European space of freedom, justice and the rule of law if a person who happened to be prime minister and is considered as danger for the regime ist just put into jail – just for nothing, just for fun, just breaking all the rules as emphasized in the ECHR judgment.

To underline this here is the press release from the European Commission from 30.4.2013 (and please ask yourself if any EU institution could sign any far-reaching agreeent with such a regime):

[Underlined parts by the author of this blog article]

European Commission
MEMO
Brussels, 30 April 2013

Joint Statement by EU High Representative, Catherine Ashton, and Commissioner Stefan Füle on today’s judgement by the European Court of Human Rights in the case of Tymoshenko v. Ukraine

Catherine Ashton, High Representative of the Union for Foreign Affairs and Security Policy and Vice President of the Commission, and Štefan Füle, EU Commissioner for Enlargement and European Neighbourhood Policy, made today the following statement:

„Today’s judgment of the European Court of Human Rights in the case of Tymoshenko v. Ukraine confirms the concerns consistently expressed by the EU regarding the arbitrary legal proceedings in the case of Yulia Tymoshenko.

In light of today’s judgement, we call on the Ukrainian authorities to reconsider thoroughly the situation of Ms Tymoshenko, the leader of one of the strongest opposition parties in the country, who remains detained after a trial that did not respect fair, transparent and independent legal proceedings. We stress the importance of a clearly expressed commitment by the Ukrainian authorities to early implementation of all judgments of the European Court of Human Rights.

 We also continue to encourage the Ukrainian authorities to work closely with the European Parliament’s monitoring mission to Ukraine headed by former Presidents Cox and Kwaśniewski with a view to redressing the effects of the current situation and removing outstanding concerns regarding selective justice in Ukraine.

Ukraine also needs to take urgent steps to remedy the systemic procedural shortcomings identified in this ruling, as part of a comprehensive reform of the judiciary, to prevent recurrence of arbitrary decisions and allay concerns over the selective use of justice. This is essential in order to fully implement the conclusions of the 10 December 2012 Foreign Affairs Council and the joint statement of the EU-Ukraine Summit of 25 February 2013.”

This is no pro-Tymoshen ko position, but simply a position against the principle of selective justice – the most arbitrary violation of any rule of law. Now Mr. Yanukovich has it in his hands: Either he releases immediately Yulia Timoshenko (like her former minister Luzenko), or he does not regard the ECHR judgment – which he first promised to accept! This is one more reason that the EU should not want Ukraine, a European country with decades of common history, coming closer to the European Union – as long it is ruled by someone who arranged this selective justice. One should imagine this in a present EU country! It is clear, together with the assessment of the last election e.g. by the OSCE (and others) that this regime can keep in place only by rigged election results. This is not the way as it is done and should be done in Europe.

Mr. Yanukovich, all the Europeans – in- and outside of the EU – wait until you release now Ms. Tymoshenko – or go yourself where you belong.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal
www.eufaj.eu

The Tymoshenko vs. Ukraine Case at the ECHR Strasbourg from 30.4.2013 – Full Text

Right now came the long-awaited judgment of the European Court of Human Rights in the case Yulia Tymoshenko vs. Ukraine. We all know the background. This judgment is a refreshing text – a judgment which was clear to every observer from the beginning – which is a full clap in the face of the Ukrainian regime (I cannot speak anymore of government, as this includes governance which is evidently not followed in Ukraine).
My sympathies lie as ever with those people who dared to launch an „Orange Revolution“ years ago, and the (r)evolutionary way this should have been. It has not, of course, and this is not only the fault of Mr. Yanukovich and his party (but also, and this predominantly). One has not to be a friend of Ms. Tymoshenko (I still do not know if I would be one), but what has done to her is incredible, impossible, uncivilized, undemocratic, authoritarian etc., in short: not on the path of human dignity of a European government. The European Union has now an exact text to which it can lean when dealing with Ukraine, and everyone else, too.
A blog entry should be short, of course. But this here is too valuable not to be published in full text. It also tells the story of an extraordinary violation of human rights in Ukraine, which should not be repeated one more time, and which sets a red line which should not be stepped over by any government in Europe – and there are several. May it be a trombone call for immediate democratic and judicial reforms in Ukraine! This from a point of view that this country belongs into the European Union on the long term – but not on the basis as it is run now.
Hans-Jürgen Zahorka, EUFAJ
————————————————
European Court of Human Rights
Former Fifth Section
CASE OF TYMOSHENKO v. UKRAINE

(Application no. 49872/11)

JUDGMENT

STRASBOURG

30 April 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tymoshenko v. Ukraine,

The European Court of Human Rights (Former Fifth Section), sitting as a Chamber composed of:

Dean Spielmann, President,               Mark Villiger,

Karel Jungwiert,

Ann Power-Forde,

Ganna Yudkivska,

Angelika Nußberger,

André Potocki, judges, and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 28 August 2013 and 9 April 2013,

Delivers the following judgment, which was adopted on the latter date:

PROCEDURE

1. The case originated in an application (no. 49872/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Yuliya Volodymyrivna Tymoshenko (“the applicant”), on 10 August 2011.

2. The applicant was represented by Ms Valentyna Telychenko and Mr Sergiy Vlasenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, from the Ministry of Justice.

3. The applicant alleged, in particular, that her detention had been politically motivated; that there had been no judicial review of the lawfulness of her detention in Kyiv SIZO no. 13; that the conditions of her detention had been inhuman, with no medical care provided for her numerous health problems; and that she had been held under round-the-clock surveillance in Kharkiv Hospital.

4. The Court granted priority to the application (Rule 41 of the Rules of Court). On 14 December 2011 the application was communicated to the Government.

5. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 August 2012 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government

Mr              N. Kulchytskyy,               Agent,

Mr              M. Bem,               Counsel,

Mr              V. Bogush,

Ms              R. Moiseienko,

Mr              O. Mykytenko,

Mr              A. Bairachnyi,

Mr              S. Motliakh,               Advisers;

(b) for the applicant

Ms              V. Telychenko,

Mr              S. Vlasenko,               Counsel,

Ms              H. Senyk,               Adviser.

The Court heard addresses by Mr N. Kulchytskyy, Ms V. Telychenko and Mr S. Vlasenko, as well as their answers to questions put to the parties.

6. Judge Boštjan Zupančič was exempted from sitting in the case (Rule 28 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant, born in 1960, is serving a prison sentence in Kachanivska Penal Colony no. 54 in Kharkiv. She is currently hospitalised in the Central Clinical Hospital of the State Railway in Kharkiv.

A. Background of the case

8. The applicant is the leader of the Batkivshchyna political party and of Yulia Tymoshenko’s Bloc.

9. During the periods from 24 January to 8 September 2005 and from 18 December 2007 to 3 March 2010, she exercised the function of Prime Minister of Ukraine. Before becoming Prime Minister, the applicant was one of the leaders of the Orange Revolution, during which she had openly criticised the then rival presidential candidate Victor Yanukovych.

10. In the parliamentary elections held in 2006 Yulia Tymoshenko’s Bloc was victorious in fourteen regions in the country (out of twenty-six) and polled 22.27% nation-wide.

11. In the 2007 parliamentary elections Yulia Tymoshenko’s Bloc polled 30.71% throughout Ukraine and received 156 seats (out of 450) in Parliament.

12. The applicant was the main opponent of President Victor Yanukovych in the presidential election held in 2010. In the second round of the election she won the support of 45.47% voters, while Mr Yanukovych won 48.95%.

13. At the time of the introduction of the application, the applicant was the most visible opposition politician and the head of one of the strongest opposition parties in Ukraine.

B. Criminal proceedings brought against the applicant

1. Regarding the gas agreement

14. On 11 April 2011 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant on suspicion of abuse of power under Article 365 § 3 of the Criminal Code. The applicant was suspected of exceeding her authority and abusing her office in ordering the head of the State-owned enterprise Naftogaz of Ukraine to sign an agreement with the Russian enterprise Gazprom providing for the importation of natural gas at a price of 450 United States dollars (USD) per 1,000 cubic metres, which had caused the State to suffer considerable financial losses.

15. On 25 May 2011 the pre-trial investigation was officially completed and the applicant was given fifteen working days to read the case file. At the same time, she was called almost daily to attend the GPO’s premises for questioning concerning the other criminal cases which had been initiated against her in the meantime. The case file at that time comprised some 4,000 pages in fifteen volumes.

16. On 17 June 2011 the case was referred to the Kyiv Pecherskyy District Court (hereinafter “the Pecherskyy Court”) for trial.

17. In a judgment of 11 October 2011 the court found the applicant guilty as charged. It sentenced her to seven years’ imprisonment and imposed a three-year prohibition on exercising public functions on her.

18. On 23 December 2011 the Kyiv Court of Appeal upheld the first-instance judgment.

19. On 29 August 2012 the Higher Specialised Court delivered a final judgment in the case confirming the applicant’s guilt and sentence.

2. Other criminal cases against the applicant and related events

20. Earlier, in 2010, two other criminal cases – one concerning the misuse of funds allocated for the purchase of ambulances and the other concerning funds received by Ukraine within the framework of the Kyoto Protocol – had been opened against the applicant under Articles 364 and 365 of the Criminal Code.

21. In July 2011 the Ukrainian Security Service re-opened another criminal case against the applicant, on suspicion of financial fraud during her tenure as head of the company United Energy Systems of Ukraine in the 1990s, which had been closed in 2001.

22. On 7 December 2011 the investigator asked the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) to order the applicant’s remand in custody in order to facilitate the further pre-trial investigation of this case.

23. On 8 December 2011 the court granted that motion following two hearings conducted in the SIZO medical unit, during which the applicant was lying in bed because of pain. The hearings were interrupted three times for her emergency treatment with painkillers.

24. On 21 December 2011 the Kyiv Court of Appeal upheld the above ruling.

25. On 29 March 2012 the applicant was officially indicted.

C. The applicant’s pre-trial detention in the course of the criminal proceedings regarding the gas agreement

26. During the initial stages of the pre-trial investigation and the trial concerning the gas agreement the applicant was at liberty, subject to an undertaking not to abscond.

27. Between 29 June and 4 August 2011 the Pecherskyy Court held sixteen hearings, in all of which the applicant participated.

28. On 5 August 2011 the hearing started at 9.00 a.m. The applicant was late and her counsel asked for a half-hour break. The applicant arrived seven minutes later. The court resumed the hearing at 9.30 a.m. The applicant explained that she was late due to her exhaustion. The previous hearing had ended at 8:02 p.m. the day before and she had had to prepare for the next hearing late at night.

29. During the hearing the judge heard the incumbent Prime Minister, Mr Azarov. The applicant’s questions were almost all dismissed by the judge, but allegedly made the witness overly nervous and upset. It is not clear whether the applicant asked the questions herself or through her lawyers.

30. After the cross-examination of this witness, a representative of the GPO asked the judge to order the applicant’s remand in custody on the grounds that she had obstructed justice and had demonstrated her disrespect for Judge K. and those taking part in the hearing.

31. Judge K. granted the GPO’s motion on the same day and ordered the applicant’s detention for an undetermined period, with reference to Article 148 of the Code of Criminal Procedure. His reasoning was as follows:

“Both during the pre-trial investigation stage and the trial the defendant has systematically been violating court procedures, has been ignoring the presiding judge’s orders, has been showing contempt towards the participants in the hearing and the court, has been knowingly protracting the judicial examination of this case, and has been performing acts aimed at impeding establishing the truth in the case, in particular, by hindering the questioning of witnesses.”

32. He added that the applicant had refused to give any information about her domicile (referring to the case file). The letters sent to the address indicated by her had been returned by the post office. The applicant had also repeatedly refused to sign notices informing her of scheduled hearings. As noted in the ruling, it was final, no appeal lying against it.

33. The applicant was detained in the court room and was transferred to Pre-Trial Detention Facility no. 13 in Kyiv (“SIZO no. 13”).

34. In the course of subsequent court hearings held on 8, 10, 11, 15, 16, 18, 22, 25, 26, 29 and 31 August and on 1, 2, 5, 6, 7 and 21 September 2011 the applicant and her defence counsel repeatedly lodged requests to have her detention replaced with another preventive measure. They submitted that the applicant had complied with the obligation not to leave town, had participated in all the investigative measures as required and had attended all the court hearings. The applicant further contended that there was no legal basis for remanding her in custody as punishment for her supposed lack of respect towards the presiding judge. She also complained that her detention was contrary to the safeguards of Article 5 of the Convention and should be replaced by a less intrusive preventive measure. Numerous letters of personal guarantee from prominent public figures including clergy, artists, writers, journalists and scientists were addressed to Judge K. with a request to release the applicant under their personal commitment to ensure her attendance at court. A proposal of bail in the amount of one million Ukrainian hryvnias was also made.

35. The Pecherskyy Court dismissed all the requests for the applicant’s release with reference to its reasoning given in the ruling of 5 August 2011. Each subsequent dismissal was based on the earlier dismissals. The court stated, inter alia, that the applicant had continued to show disrespect for the court and the trial participants, and had not followed the instructions of, and had not responded to remarks made by, the presiding judge.

36. On 12 August 2011 the Kyiv City Court of Appeal examined the applicant’s appeal against the detention order, in which the applicant had claimed that her detention was unlawful and unlimited in duration. The appellate court dismissed it without examination of the merits with the following reasoning:

“… Pursuant to Article 274 of the Code of Criminal Procedure (“the CPC”), a court may change a preventive measure during its examination of the case. When choosing remand in custody as a preventive measure, the court shall be guided by the relevant provisions of Chapter 13 of the CPC.

Article 274 of the CPC does not provide, in substance, for the right to challenge a court’s decision about a change of preventive measure during the examination of a criminal case.

During the examination of the present criminal case, allowing the prosecutor’s motion on 5 August 2011 the Kyiv Pecherskyy District Court changed the preventive measure in respect of the defendant Yu. Tymoshenko from an undertaking not to abscond to remand in custody. This decision has been challenged on appeal.

However, according to the CPC, rulings on selection, change or discontinuation of a preventive measure delivered during the judicial examination of a case are not amenable to ordinary appeal. It follows that there are no grounds for accepting [the applicant’s] appeal against the decision of 5 August 2011 for examination.”

37. In its verdict of 11 October 2011 convicting the applicant (see paragraph 17 above), the Pecherskyy Court decided to keep her in detention as a preventive measure until her conviction became final.

38. On 29 November, 1 and 20 December 2011 the applicant lodged further requests for release referring, in addition to her earlier arguments, to the deterioration of her health.

D. Conditions of the applicant’s detention in SIZO no. 13 in Kyiv

39. The applicant was detained in SIZO no. 13 from 5 August to 30 December 2011.

1. Material conditions of detention

40. The applicant was placed in cell no. 242 together with two other detainees. In her original application, she indicated that the size of the cell was about fourteen square metres, while in her observations on the admissibility and merits she stated that its size was sixteen square metres. According to the Government, the cell measured 16.4 square metres.

41. The applicant also maintained that the cell had a single window which could not be opened, being too high to be reached by the inmates, and was unventilated which, taking into account the fact that her two cellmates had smoked, had caused serious problems for her health. According to the Government, the applicant had been able to open the window, which had measured 1.5 by 1.5 metres, and one of her cellmates had not been a smoker while the other had only smoked outside the cell during her outdoor walks. Moreover, the cell had been equipped with a ventilation system.

42. According to the applicant, the cell had lacked hot water and had often not had a supply of cold water, and she had not been provided with any drinking water. The Government indicated that the cell had been equipped with a supply of hot and cold water, a separate toilet and a washing stand with a tap and had been equipped with central heating. They added that during her time in the SIZO, the applicant had received 316 litres of drinking water in 82 containers.

43. According to the applicant, the cell had not been sufficiently lit, had been damp and had had a pungent smell and mould growing in it. The light in the cell could not be switched off and had been kept permanently on. The Government specified that two lamps each consisting of two 40-watt bulbs (a total of four 40-watt bulbs) had been used for lighting during the day and one lamp with a 60-watt bulb for lighting during the night.

44. The applicant stated that at the time of introducing her application to the Court, on 11 August 2011, she had been entitled to take a shower once per week and, according to her, the bedding in her cell was not regularly changed. In her observations on the admissibility and merits, she indicated that she had been allowed to shower twice per week. The Government observed that while, according to the general rule, each detainee was provided with access to bathing facilities for thirty minutes once every seven days, the applicant had been permitted to have a shower several times a week. They further pointed out that all detainees were provided with bed linen. They noted that as of 5 August 2011, the remaining stock of new bedding in the SIZO included 444 blankets, 545 pillows, 8,216 sheets, 6,179 towels and 4,473 pillowcases. The applicant, having received a total of 278 items of bed linen from her relatives, had never asked the SIZO administration to have her bed linen changed.

45. The applicant noted that the Government had not mentioned the number of inmates who had been present at the relevant time in respect of the quantity of bed linen, and what bed linen had been available to her. She maintained that she had had to rely exclusively on her relatives in order to be provided with drinking water, bed linen, food and other essentials.

46. On 25 November 2011 the applicant was temporarily moved to cell no. 300, where she stayed until 29 November 2011 when she was transferred to a newly refurbished cell, no. 260, in the medical unit. According to her, there had been no heating or hot water supply in cell no. 300.

47. Between 29 November and 6 December 2011 an ad hoc CPT mission visited Kyiv SIZO no. 13. On 30 November 2011 they paid a visit to the applicant. According to her, that visit was the reason for her transfer to cell no. 260 and the improvement of the conditions of her detention.

2. The applicant’s daily regime and the food provided to her

48. On the days of court hearings, which were, according to the applicant, conducted almost daily, she was woken up at 5 a.m. in order to be transported to the court by 7 a.m. As further submitted by her, she had had to spend, before and after the hearings, two or more hours in a room measuring about 1.2 x 1.4 metres without a window. The Government denied this. After the hearings, the applicant had returned to her cell no earlier than 9 pm. On these days she had not been given time for exercising or an outdoor walk.

49. In her original application, the applicant stated that she had not been able to eat any food provided by the SIZO due to her chronic gastroenterological diseases and allergies. After she had eaten a few meals there, her chronic gastroenterological diseases had worsened and she had experienced constant pain in her stomach. The applicant also argued that her daily court hearings had left her no time to seek medical assistance while in the SIZO. In addition, she had not been allowed to take her food with her to the court. As a result, she had spent up to sixteen hours without any food on days when she had been required to attend court hearings.

50. In her observations on the admissibility and merits of the application, the applicant stated that she had not had an assigned room or time to consume food in the court building and had found it humiliating to do so in front of the public including journalists, reporters and photographers. According to her, she had been held in the courtroom for the entire hearing and had only been able to leave it to use the toilet facilities. As a result, she had remained without any food or drink for entire court hearings, which had lasted for up to fourteen hours.

51. According to the Government, before the start of the court hearings, the applicant had been held in the courtroom where her case was to be examined. The Government also noted that, contrary to the applicant’s claims, she had been given time for outdoor walks and physical exercise on the days of court hearings. In fact, when she had been escorted back to the SIZO after court hearings before 2 p.m., she had been able to go for an outdoor walk in accordance with the routine daily schedule. In other instances, the applicant had usually refused to have an outdoor walk.

52. The Government further stated that the applicant had brought various foodstuffs and personal items of clothing back to the SIZO with her after each court hearing on 31 August, 1, 2, 5, 7 and 8 September 2011, which indicated that she had been able to receive and consume food on the days of court hearings. Consequently, the SIZO administration had not prepared a packed lunch to be taken by the applicant upon being escorted to the courtroom.

53. The Government also observed that the applicant had received substantial food parcels after her arrival in the SIZO. From 5 to 11 August 2011, she had been provided with food in compliance with legal requirements. Subsequently, from 11 August 2011 onwards, the applicant had officially refused to consume food prepared in the SIZO and had indicated that she would only accept food delivered from her home. The Government noted that during the period from 5 August to 22 December 2011, the applicant had received 82 parcels including, in total, 60 eggs; 605 dietary food items; 224 food items with a high fat content; 202 vegetables and pieces of fruit; and 316 litres of drinking water.

54. The Government noted that the applicant had refused to consume food prepared in the SIZO which had, therefore, been unable to provide her with a special diet. Moreover, despite her contention that her doctors’ recommendations did not allow her to eat, in particular, eggs and food items with a high fat content, the food delivered to her in the parcels suggested that the applicant had actually consumed a great number of prohibited food items.

3. The applicant’s state of health and the medical treatment provided to her

55. The applicant stated that due to her chronic illnesses, her personal physician had insisted on a strict diet, excluding any traces of eggs, meat or fatty foods. In order to prevent allergies the applicant’s physician had also advised her to limit her exposure to toxic compounds, including tobacco smoke, disinfectants and plastic utensils. She complained of sudden subcutaneous haemorrhages, acute pain in her stomach and throat, the exacerbation of chronic illnesses, including chronic gastritis, chronic pancreatitis, intestinal dysbiosis, adenomyosis of the uterus, grade 2 nodular goitre, insomnia, relapsing urticaria caused by a variety of allergic reactions, and severe drug and food (egg) allergies.

56. On 10 August 2011 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government the necessity of her release given the alleged risk to her life inherent in her detention.

57. On 16 August 2011 the Court rejected this request.

58. On 19, 25 and 29 August and on 1 and 2 September 2011 Judge K. and the SIZO authorities rejected the applicant’s requests for a medical examination by doctors whom she trusted. Instead, the applicant was offered a medical examination by doctors assigned by the Ministry of Public Health. She refused the offer.

59. According to the Government, the applicant was examined by doctors from the SIZO medical unit upon her arrival there on 5 August 2011 but refused to undergo a detailed medical examination. On 6 August 2011 she refused to be seen by a generalist, a psychiatrist, and a dentist, to have her blood pressure measured, to undergo an electrocardiogram, a fluorography examination, and blood and urine tests. She maintained her refusal on 12 August 2011.

60. On 16 August 2011, having returned from a court hearing to the SIZO, the applicant complained of a build up of fluid in the cavity of her left elbow. She was diagnosed with a haematoma under the skin of the cavity of the left elbow with an undetermined cause. She insisted on undergoing tests in an independent laboratory.

61. On the following day the applicant was examined by the head of the SIZO medical unit, who established that her state of health had not changed. The applicant refused to undergo a blood test in the SIZO and insisted that the test be carried out in an independent laboratory in the presence of her personal doctor.

62. On 18 August 2011 the applicant complained of newly discovered haematomas on her body but refused to undergo the suggested medical examination. She was advised to undergo laboratory tests but she refused to do so without the presence of her personal doctor, Dr P., and a nurse. She also refused to be seen by an expert panel of doctors appointed by the Ministry of Public Health (“the medical panel”). In the evening on the same day she complained of asthenia, vertigo, dehydration and vomiting.

63. On 19 August 2011 the applicant complained of general asthenia, fatigue, vertigo, areas of swelling caused by a build up of fluid on the lower limbs, a nosebleed and frequent dehydration. According to her, there were no newly discovered haematomas. However, she refused to be seen by the medical panel, insisting on undergoing an examination and laboratory tests in the presence of Dr P. and the nurse.

64. On 20 August 2011 the applicant was examined by the head of the SIZO medical unit, who found that her state of health was satisfactory and that there were no newly discovered haematomas. The applicant refused to undergo a detailed medical examination.

65. She was also seen by the head of the SIZO medical unit on the following day. The doctor confirmed that her state of health was satisfactory. The applicant complained of dehydration and a bleeding nose at night; according to her, there were no newly discovered haematomas but she refused to undergo a detailed medical examination.

66. On 22 August 2011 the applicant agreed to be examined by the medical panel. She complained of the appearance of a petechial skin rash and haematomas and stated that she had twice had a bleeding nose at night without having high blood pressure. The panel agreed that the applicant’s general state of health was satisfactory. The applicant was advised to undergo laboratory tests.

67. On 23 August 2011 she was seen again by the medical panel. Dr P. and her nurse were allowed to join the panel. The applicant refused to undergo a medical examination and confidential laboratory tests but agreed to have her blood clotting time assessed by the Turner method on condition that any biological material be destroyed by incineration. The results showed that her body’s ability to coagulate blood was normal. The applicant was told to eat food full of protein and vitamin C. In the evening she complained of headache and asthenia. She was examined but her blood flow was normal. She was given two tablets of ketanov (ketorolac, an anti‑inflammatory drug) and her treatment with collagen and ascorutin (vitamin C and flavonoids) was prescribed.

68. On 24 August 2011 the applicant was examined by the head of the SIZO medical unit. She complained of asthenia, vertigo, dehydration and new haematomas, but refused to undergo a detailed examination. In the course of examinations carried out on 25 and 26 August 2011 no serious change in her state of health was established.

69. On 27 August 2011 the applicant was offered an examination by the medical panel in the presence of Dr P. and the nurse. She refused to undergo the examination or laboratory tests in two laboratories outside the SIZO and insisted on a confidential examination by doctors of her choice and on a laboratory examination without the medical panel being informed of the results.

70. On 30 August 2011 the applicant was again advised to undergo an examination by the medical panel in the presence of Dr P. and the nurse. She drew attention to the appearance of a rash on the lower third of her chest, but refused to undergo a further medical examination or laboratory tests.

71. On 31 August and on 1 and 2 September 2011 she was examined by the head of the SIZO medical unit, who found no serious changes in her state of health.

72. On 3 September 2011 the applicant was advised to undergo examination by the medical panel in the presence of Dr P. and the nurse. The applicant refused to do so.

73. On 6 September 2011 she maintained her refusal.

74. On 4, 5, 6 and 7 September 2011 she was examined by the head of the SIZO medical unit. Her state of health was found to be satisfactory. The applicant complained of asthenia, headache, dehydration, abdominal pain on an empty stomach and broken sleep but she refused to undergo a detailed examination and insisted on being seen by Dr P. She was told to take pariet (rabeprazole, a drug which slows or stops the production of stomach acid) tablets.

75. The head of the SIZO medical unit visited the applicant again on 8 September 2011. He found no serious changes and added a multivitamin tablet to the applicant’s treatment regimen. On 9, 10 and 11 September 2011 the applicant was advised to continue the indicated treatment.

76. On 12, 13, 14 and 15 September 2011 she continued to be seen by the head of the SIZO medical unit. She complained of pain while swallowing, asthenia, headache, vertigo, intestinal pain and broken sleep. No new haematomas were discovered and the applicant refused to undergo a further detailed examination. She was told to use a nasal spray, gargle with a solution, drink hot drinks and take paracetamol.

77. On 15 September 2011 the applicant was advised to undergo an examination by the medical panel in the presence of Dr P. and the nurse. She refused to do so.

78. On 17 September 2011 the applicant was consulted by a medical panel composed of experts from the SIZO, the State Prisons Service and the O.O. Bogomolets National Medical University. She complained, inter alia, of coughing, general asthenia and periodic vertigo. She noted the improvement of her state of health after gargling and drinking tea with honey and taking vitamins. She was advised to continue gargling and to consume healthy food and drinks. However, she refused to undergo a more detailed medical examination.

79. On 21 September 2011 the applicant was seen by the medical panel in the presence of Dr P. She complained of general asthenia, periodic vertigo, and right subcostal pain and irritation. The panel confirmed an improvement in her state of health. The applicant refused to undergo a further medical examination. She was advised not to eat fresh vegetables and fruits, but rather to eat them cooked and to exclude dairy products and spicy, salty and sour dishes from her diet. She was also prescribed, inter alia, motilium (domperidone, used to suppress nausea and vomiting) and told to eat no less than four times per day.

80. From 16 September to 3 October 2011 the applicant was examined on a daily basis by specialists from the SIZO medical unit, who established that her state of health had gradually improved and that her catarrhal symptoms had disappeared.

81. On 3 and 4 October 2011 she was examined by the head of the SIZO medical unit, who confirmed that her state of health was satisfactory. The applicant complained of asthenia, headache, vertigo, the periodic appearance of haematomas, dehydration and broken sleep. She refused to undergo a detailed examination. She was prescribed detralex (diosmin, a flavonoid used to treat venous insufficiency), motilium, ascorutin and multivitamins.

82. Between 5 and 11 October 2011 the applicant was examined by the head of the SIZO medical unit on a daily basis. She complained of pain in the lumbar region of the spine that, according to her, had first occurred when walking after she had jumped from a horizontal bar. She was diagnosed with lumbago and prescribed a medicine (pariet) and an intramuscular injection of movalis (a non-steroidal anti-inflammatory drug) was administered. She was also given one tablet of movalis to take after eating.

83. On 12 October 2011 the applicant was prescribed additional treatments of movalis, pariet, donormyl (a sleeping tablet), tetramycin (an antibiotic) and multivitamins.

84. On 13 October 2011 she again complained of pain in lumbar region of the spine. She was prescribed treatment with xefocam (lornoxicam, a painkiller), pariet and multivitamins.

85. On the following day the applicant was examined by the medical panel. She complained of pain in the lumbar region of her spine, but refused to be examined in detail. Manual therapy was carried out.

86. From 14 October to 5 November 2011 the applicant continued to be examined by the head of the SIZO medical unit on a daily basis. The medical treatment continued in accordance with the previous recommendations, with some additional treatment being provided.

87. On 18 October 2011 she was examined by the medical panel. She complained of pain in the lumbar region of her spine. From 18 to 28 October 2011 she was provided with massage and medicinal treatment.

88. In the meantime, on 20 October 2011, the applicant had been examined again by the medical panel. She confirmed that the pain in the lumbar region of the spine had decreased. The doctors noted an improvement in her general state of health and advised her to continue the prescribed treatment (xefokam and dolobene, a gel containing ibuprofen). The applicant, however, refused to take the prescribed medicines.

89. The medical panel also examined the applicant on the next day. She stated that the pain in the lumbar region of the spine had decreased. The doctors confirmed an improvement in her state of health and advised her to continue the prescribed treatment (xefokam, dolobene).

90. On 24 October 2011 the applicant was examined by the medical panel. She complained of pain in the lumbar region of the spine. She was given an intramuscular injection of xefokam and dolobene.

91. On a daily basis from 25 to 28 October 2011 the applicant continued to be under the supervision of the medical panel, which found that her state of health had improved. She continued to refuse to undergo further detailed examination.

92. On 5 November 2011 she refused to undergo an x-ray examination.

93. On 7 November 2011 the applicant was examined by the medical panel, which recommended an additional examination and continuance of the prescribed treatment.

94. She was examined again by the medical panel two days later. In addition, she underwent ultrasonic duplex scanning of her lower limbs. She had been previously diagnosed with lumbar osteochondrosis, sciatica on the right side, tonic muscle spasms, serious disturbances of the functions of the spine and right lower limbs and, possibly, spondyloarthrosis and spondyloarthralgia. The panel concluded that the verification of the diagnosis and a determination of the treatment strategy were necessary and an additional examination and additional consultations between experts were therefore needed. However, the applicant refused to undergo the suggested x-ray examination.

95. On 12 November 2011 the applicant was given another prescription of ascorutin and tetramycin.

96. On 14 November 2011 she was examined by the medical panel, but refused to undergo a detailed examination and a blood test.

97. On 16 November 2011 the applicant refused to take tetramycin, which had been prescribed on the same day.

98. On 19 November 2011 the applicant was examined by the medical panel in the presence of Dr P. and her nurse. In order to adjust the treatment previously prescribed, the applicant was advised to undergo a blood test but she refused to do so. The applicant also refused to undergo a detailed examination and receive injections of betamethasone (a steroid with anti-inflammatory and immunosuppressive properties). The medical panel recommended continuing the previous treatment.

99. On 23 November 2011 the applicant underwent an examination (including an MRI scan) of the abdomen. She was advised to provide blood, urine and stool samples for laboratory examination but she refused to do so. The medical panel established no signs of any medical condition affecting her pancreas but detected chronic cholecystitis which had developed after an acute cholecystitis episode, and prescribed chofitol (an indigestion remedy). The applicant was told to continue taking ascorbic acid and rutin, to exclude fatty, fried and spicy foods from her diet and to increase the dosage of the pills she was taking that were intended to remove toxic compounds from her system. The panel noted that the applicant had not fully complied with the previous recommendations.

100. In the course of an examination of 26 November 2011 the applicant complained that after receiving vitamin B injections (milgamma), she had had an allergic reaction. After taking one tablet of telfast (fexofenadine, an antihistamine), the allergic reaction had stopped. According to her, there were no new haematomas on her body. She was prescribed furosemide (a diuretic).

101. From 6 tо 29 November 2011 the applicant was seen daily by the doctors of the SIZO medical unit. She complained of headache, dehydration, discomfort in the epigastric and right subcostal regions and broken sleep, but refused to undergo a thorough examination and stated that she would follow the prescribed treatment at her discretion. During this period, she noted that the pain in the lumbar region of the spine had decreased.

102. On 29 November 2011, at her request, she was transferred to the SIZO medical unit. After an initial examination, she was prescribed treatment with diclofenac (an anti-inflammatory drug), furosemide, sirdalud (a muscle relaxant), diprospan (a corticosteroid), milgamma, pariet, chofitol, ascorbic acid, rutin, and Viprosal B (a pain-relieving ointment). She was also advised to undergo a general and biochemical blood test, coagulogram analysis, to provide urine and stool samples for testing, and was also prescribed a special diet.

103. On 30 November 2011 the applicant was examined by the head of the SIZO medical unit, who diagnosed widespread lumbar osteochondrosis in the form of sciatica on the right side with temporary severe pain but without signs of compressive radiculopathy, and a hemangioma.

104. On 2 December 2011 she was examined by the medical panel in the presence of Dr P. and her nurse. She was advised to undergo a blood test but she refused to do so, continuing to insist on a confidential blood examination outside Ukraine with the involvement of her personal doctor and without the involvement of State representatives.

105. The applicant stated that on 7 December 2011 her lawyer had been in the SIZO medical unit in order to prepare for the appeal hearing. The applicant and her lawyer had not been able to have their meeting in private because she had been unable to move, walk on her own or be seated.

106. On 8 December 2011 the applicant refused to undergo a medical examination by the medical panel which, having examined the available medical documentation, noted that among other illnesses the applicant was suffering from chronic cholecystitis which had developed after an acute cholecystitis episode and that she had not fully complied with the previous medical recommendations.

107. On 12 December 2011 the applicant was again examined by the medical panel. The applicant was advised, inter alia, to continue using Discus Compositum and Traumeel S. (homeopathic ointments designed to reduce joint pain and inflammation), to undergo general and biochemical blood tests, coagulogram analysis and to provide a urine sample for testing. The applicant was repeatedly offered the opportunity to undergo a laboratory blood test, but she refused to do so. The panel again noted that the applicant had not fully complied with the previous recommendations. It was also noted that there was no need for surgery.

108. On 13 and 14 December 2011 the applicant was advised to submit to an examination by a specialist from the Ministry of Public Health and the State Prisons Service, but she refused to do so.

109. On 16 December 2011 the applicant was examined by medical specialists from the State Prisons Service. Based on the results of the report of 12 December 2011 and the information obtained during the medical examination on 16 December 2011, the panel found that there were no medical reasons that would render the applicant’s attendance at the court hearings inappropriate.

110. On 21 December 2011 the applicant underwent an electrocardiogram and an echocardiogram. No heart condition was discovered.

E. Conditions of the applicant’s detention in Kachanivska Colony

1. Material conditions

111. On 30 December 2011 the applicant was moved to Kachanivska Colony in Kharkiv to serve her prison sentence. She was held in a cell measuring 37.1 square metres, sharing it with another inmate. The cell was equipped with two PVC windows each measuring 3.5 square metres, providing natural light and aeration of the cell. Artificial lighting was provided by energy-efficient bright tube lamps. The cell was also ventilated mechanically.

112. The cell had a separate shower room measuring 3.5 square metres and a WC of 4.1 square metres. The shower room was equipped, among other things, with a water heater and a washing machine. The applicant therefore had round-the-clock access to hot and cold water and could take a shower at any time. The inventory of the cell included two single wooden beds with orthopaedic mattresses, four sets of bed linen, a sliding-door wardrobe, a kitchen table, a coffee table, two chairs, a coat rack, a bedside table for shoes, and a suite of kitchen furniture with a dishwasher and cabinets. There were also a TV set, an ironing board, a hairdryer, a refrigerator, a microwave oven, an electric kettle and all necessary kitchen utensils.

113. Food was provided in accordance with national regulations. The food was prepared in the dining room of the colony and delivered to inmates in special containers. In addition, the applicant had the right to receive an unrestricted number of parcels containing foodstuffs. By 5 April 2012, the applicant had received thirty such parcels.

114. According to the Government, from the date of her arrival at the colony, the applicant had refused to take daily walks on account of her state of health. As a rule, she had been entitled to daily walks at any time during the day. The exercise yard measured 52 square metres.

115. The applicant stated that due to her state of health, she had requested a crutch and, on 17 January 2012, a walker to assist her in moving on her own, but the administration of the colony had refused to provide her with any walking aids. As a result, the applicant had been unable to walk on her own in her cell, let alone be able to enjoy daily outdoor walks. The colony had not taken any measures such as providing her with a walker or a wheelchair to assist her moving around or to allow her to enjoy being outdoors.

2. Medical treatment provided to the applicant

116. According to the Government, on 7 January 2012 the applicant was examined in the regional clinical hospital. She underwent a helical computed tomography scan of her brain, an MRI scan of her jugular spine, lumbosacral spine and neck, and a blood test. On the same date she was examined by medical specialists from Kharkiv National Medical University and the State Prisons Service. Upon those examinations, the previous diagnoses were confirmed as follows: widespread lumbar osteochondrosis in the form of sciatica on the right side, with temporary severe pain but without signs of compression radiculopathy; and hemangiomas of the lumbar spine vertebrae. However, the protrusion of the intervertebral discs in comparison with the previous MRI scan had decreased. It was recommended that the applicant be kept under active observation by the colony doctors, that she have blood pressure checks two or three times per day and her temperature taken twice per day, and an examination by a neurologist and otolaryngologist was scheduled for 10 January 2012. She was also prescribed betahistine (an anti-vertigo drug), detralex and diacarb (acetazolamide, an inhibitor used to treat a variety of illnesses including glaucoma, epileptic seizures and altitude sickness and which also functions as a diuretic); and, in case of necessity, symptomatic treatment, therapeutic exercise and medical massage.

117. On 14 February 2012 the applicant was examined by German doctors from the Charité Hospital in Berlin who recommended, on 17 February 2012, her transfer to a specialised hospital for additional examination and treatment.

118. On 23 February 2012 the applicant underwent additional examinations.

119. On 7 March 2012 a joint meeting of Ukrainian and German doctors took place in order to reach a common approach to the applicant’s treatment. According to the Government, upon the recommendations of the German doctors being received a common plan of comprehensive medical treatment of the applicant was developed. According to the applicant, however, the German doctors were not involved in the discussion and did not sign the recommendations in question.

120. According to Government, on 12, 15, 19, 22 and 26 March 2012 the applicant was offered the opportunity to start the treatment recommended by the German doctors in accordance with the developed plan. However, the applicant refused to undergo that treatment, insisting on her hospitalisation in a civilian hospital, not excluding a German medical institution. She agreed, however, to be hospitalised in a medical institution inspected and recommended by the German doctors.

121. On 14 March 2012 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government that she should be provided with appropriate medical treatment by independent doctors in a specialised institution.

122. On 15 March 2012 the Court applied the interim measure under Rule 39 and requested the Government “to ensure that the applicant receives treatment appropriate to her complaints in an appropriate institutionalized setting”.

123. On 16 March 2012 the Government brought medical equipment from nearby hospitals to the prison. On the same date, the applicant was offered a lumbar puncture in the medical ward. She refused to undergo this procedure on the grounds that it was a surgical procedure which ought to be performed in a surgical operating room and the ward did not offer proper, sterile conditions and lacked appropriate medical equipment.

124. On 15, 22, 24 and 25 March 2012 the applicant submitted written requests for medical treatment and complained about the lack of that treatment to the colony administration. On 26 and 30 March 2012 the head of the administration offered the applicant the opportunity to undergo treatment in the medical unit of the colony and also allowed her to choose between two medical institutions in which to undergo a paravertebral block procedure. The applicant asked to consult the neurologist, Dr P., who had been her doctor in SIZO no. 13 and whose diagnoses had been fully confirmed by the German doctors. The head of the administration refused to allow her to consult Dr P., referring to the conclusions of 7 March 2012 which had allegedly reflected the common position of the Ukrainian and German doctors.

125. On 27 March 2012 the applicant refused to be treated either in the Urgent Medical Treatment and Trauma Centre at the regional clinical hospital or in the M. Sitenko Institute of Spinal and Joint Care, in order to undergo a paravertebral block procedure.

126. The Government noted that on 2 April 2012 the applicant was examined by the medical panel, including the First Deputy Minister of Health and specialists from the O.O. Bohomelets National Medical University and the M. Sitenko Institute of Spinal and Joint Care of the Academy of Medical Sciences. The applicant was prescribed treatment in the Kharkiv Central State Railway Clinical Hospital (“the Central Clinical Hospital”). At the same time, it was explained to her that this institution’s facilities complied with the requirements set out by the medical specialists from Germany. The applicant agreed to undergo this treatment.

127. However, on the next day she changed her mind and explained that the Central Clinical Hospital was not a specialized medical institution meeting the requirements contained in the interim measure ordered by the Court on 15 March 2012. She also noted that she would undergo treatment in the above institution only after the German doctors had confirmed that it was able to provide the treatment recommended by them.

128. On 4 April 2012 the applicant was offered a transfer to the Central Clinical Hospital. She was examined by the medical panel. She was told that the panel had visited the Central Clinical Hospital, had found its premises and equipment satisfactory and had concluded that the hospital provided the best conditions for the applicant’s treatment. The applicant agreed to be treated there provided that the hospital was assessed by the German doctors, who were expected to arrive on 6 April 2012.

129. Between 13 and 15 April 2012 the German doctors examined the applicant and checked the quality of the hospital proposed by the Government. They accepted the cleanliness of the hospital and the sincere attempts of the doctors there to be open, friendly and respectful, emphasising at the same time that in the short time available to them, they had not been able to assess whether the doctors were able to offer the complex underlying treatment needed.

130. On 17 April 2012 the German doctors delivered their report as regards the appropriateness of the Central Clinical Hospital for the applicant’s needs. The report indicated a number of problems with the applicant undergoing the treatment in the Central Clinical Hospital.

3. The incident related to the applicant’s transfer to hospital on 20 April 2012 and its investigation

131. In a letter of 20 April 2012 sent to the Government at 4.54 p.m. the Court invited the Government to inform it, by 27 April 2012, what steps had been taken by them to comply with the terms of the interim measure ordered on 15 March 2012.

132. At an unspecified time on the same day a medical panel composed of five doctors visited the applicant. A statement issued on the same day reads as follows:

“Members of the International Medical Board … arrived at Kachanivska Penal Colony on 20 April 2012. Accompanied by the staff of Kachanivska Penal Colony, they entered the room where Yu.V. Tymoshenko was being kept proposing to carry out a medical check-up.

While communicating with Yu.V. Tymoshenko, the board members again, with the use of arguments, convincingly and persistently suggested to her that she finally start inpatient treatment, which had been recommended by the International Medical Board and confirmed again by German health professionals on 13 April 2012, at the Central [Clinical] Hospital, where all necessary conditions had been created to make it possible to administer [the necessary] drugs and physical therapy, [and] to adjust, complement and extend [that treatment] if necessary.

While communicating with the board, the prisoner was sitting at the table. She was in the right mood to talk with the health professionals. She read the report regarding the assessment of the hospital by health professionals which had been handed over by the penal colony management.

Members of the medical board, [having] consulted [the relevant report], thoroughly analysed the conclusions of the German doctors regarding their visit to the Central [Clinical] Hospital and Yu.V. Tymoshenko on 13 April 2012 (letter from the Ministry of Foreign Affairs of Ukraine dated 19.04.2012 no. 411/17-994-313), received and discussed information from members of medical staff of Kachanivska Penal Colony regarding the state of health of Yu.V. Tymoshenko, took into account objective evidence provided by the medical staff of Kachanivska Penal Colony regarding the lack of deterioration of the prisoner’s state of health; the board also took into account the fact that no additional complaints were received from the prisoner during their communication with her.

The board repeatedly advised hospitalisation [in order for] comprehensive treatment to be carried out. In response, the patient repeatedly stated that she wished to be treated in an inpatient facility. However, she did not specify the date on which such treatment should begin.

Based on all the available medical information, the board jointly arrived at the conclusion that, as of 20 April 2012, the prisoner can be transferred, both to the place of treatment and in other cases provided for by law.”

133. On the same day, the head of the medical unit of the Kachanivska Colony ordered the applicant’s hospitalisation in the Central Clinical Hospital of the State Railways. Again on 20 April 2012, at about 11 p.m., the applicant was transferred to this hospital. According to her, she objected to the transfer to that hospital as not suitable for her needs, and force was used against her. The applicant claims that, as a result, she was bruised and sustained haematomas on her stomach and a number of haematomas on her arms.

134. More specifically, the applicant’s account of the events of the evening of 20 April 2012 is as follows: at about 9 p.m. her cellmate was removed from the cell. Three prison guards came and, after the applicant refused to follow them, they forced her to leave the cell. They wrapped her in a sheet and hit her in the abdomen. Feeling acute pain in her abdomen and spine, the applicant lost consciousness and only woke up in the hospital. She remembered having been carried out to the ambulance by one of the prison guards. Despite the permanent surveillance of her cell, the prison administration claimed that no recording of the incident had been made.

135. According to the applicant, upon her admission to the hospital, she refused to be treated by the hospital staff and asked to contact her lawyer. Moreover, in response to being physically abused by the prison guards, she announced and began a hunger strike. Despite her request, the applicant’s lawyer was not allowed to visit her on 21 April 2012.

136. On 22 April 2012 at about 2 p.m. she was returned to the colony.

137. The applicant stated that on 23 April 2012 she had asked to be examined by the prison doctors who, however, had ignored her request. On the same date she had filed a complaint with the Kharkiv Regional Prosecutor’s Office about her forced transfer to the hospital and her alleged ill-treatment. She claimed that she had not been allowed to meet with her lawyer under the pretext that a “cleaning day” was taking place in the colony. The lawyer complained to the Kharkiv Regional Prosecutor’s Office.

138. Again on 23 April 2012 the applicant asked for a forensic examination to be carried out by an independent expert but, according to her, her request was dismissed by the Kharkiv Regional Prosecutor’s office.

139. On 24 April 2012 the applicant was allowed to see her lawyer for the first time since her return to the colony.

140. On the same date she showed her bruises to the colony medical staff. According to their examination report, minor bodily injuries (a bruise on the left forearm and two bruises on the right iliac area) were found on the applicant’s body as a result of a compressive blow by, or contact with, blunt solid objects one or two days prior to the applicant’s examination. The report also established that the apparent age of the bruises did not coincide with the time indicated by the applicant. Taking into account the locality and number of the applicant’s injuries, the report indicated that no less than one blow had been inflicted in the area of the left forearm, and no less than two, in the area of the abdominal cavity. The report pointed out that the localisation of these bodily injuries was such as for it to have been possible for the applicant to have inflicted them herself.

141. According to the Government, on 24 April 2012 a forensic medical expert was invited to examine the applicant. She, however, refused to allow the suggested examination.

142. Later on the same date the head of investigative department of the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings against colony staff in the absence of corpus delicti in their actions. According to the applicant, the prosecutor admitted, at a press conference, the application of force against her, but considered it to have been justified.

143. On the following day the above refusal was quashed due to the widespread dissemination in the media of information about the bodily injuries which had allegedly been inflicted on the applicant by colony staff. The prosecutor had also received the results of the applicant’s examination by the colony medical staff on 24 April 2012 confirming the existence of the bruises. Accordingly, additional investigation was deemed necessary.

144. On 25 April 2012 a representative of the Ombudsman’s Office visited the applicant, and on the same date the Ombudsman, Ms Nina Karpachova, made a public statement regarding the applicant’s state of health and the fact that she had been physically abused during her forced transfer to the hospital. She stated as follows:

“Yu. Tymoshenko gave her consent to an examination of her injuries by the Ombudsman’s representative in the presence of the governor of Kachanivska Colony. The examination established the presence of bruises on the upper part and near the elbow of the right arm, and a sizable bruise on the right lower part of the stomach.

Yu. Tymoshenko confirmed her statement of 23 April made to the Kharkiv Regional Prosecutor … and expressed resentment over the absence of any reaction to that statement. She also stated that the Ombudsman had not been informed of her application and [that she had] asked for [the Ombudsman] to immediately visit the colony. In order to verify all the circumstances of the application of physical force to Yu. Tymoshenko, the Ombudsman’s representative met with the Kharkiv Regional Prosecutor … and the Head of the Kharkiv Regional Department of the State Prisons Service of Ukraine.

The Ombudsman is obliged to state that, by the end of the working day on 24 April, the prosecution authorities had not duly responded to Yu. Tymoshenko’s application.

The Ombudsman declares that the transfer of Yu. Tymoshenko in such a manner amounts to ill-treatment of a detainee and could be classified as torture in breach of Article 3 of the European Convention of Human Rights …

In this connection, the Ombudsman demands:

1. From the Prosecutor General of Ukraine – to open a criminal case and to suspend from their professional duties all those involved in Yu. Tymoshenko’s ill-treatment during her transfer from the colony.

2. From the Head of the State Prisons Service of Ukraine – to immediately ensure [the provision of] all necessary medical assistance [to Yu. Tymoshenko] in compliance with the decision of the European Court of Human Rights and the conclusions of the Ukrainian and independent foreign doctors.”

145. On the same date the applicant submitted a new request for an interim measure under Rule 39 of Rules of Court, asking that the Government be ordered to immediately use all available means at their disposal to ensure her treatment in the Charité Hospital in Germany.

146. On 26 April 2012 a further offer of a forensic medical examination was made but, according to the Government, the applicant refused to be examined. As a result, the head of Kharkiv Medical Academy’s department of forensic medicine, a doctor of medicine, was assigned to evaluate her injuries on the basis of the medical examination report of 24 April 2012. He confirmed that the report had been drawn up in accordance with the relevant requirements. He fully agreed with the doctors’ conclusions and noted that, due to the state of the haematomas on 24 April 2012 and their appearance one or two days before the applicant’s examination, the injuries could not have been inflicted on 20 April 2012. In addition, having familiarised himself with the medical file, which recorded the applicant’s state of health during her detention in Kyiv SIZO no. 13, he noted that recurrent “haematomas” under the skin had appeared from time to time on the applicant’s body since 16 August 2011, and had not been a result of external blows and could have resulted from a condition linked to the state of the applicant’s vascular and circular systems. The expert also expressed his opinion on the photographic materials published in the media, noting, in particular, that the photos on which the opinions expressed in the media were based could not be the subject of any standalone assessment, and that, in general, any opinions based on the photos would be ill-founded.

147. According to the applicant, the forensic expert wrote a report in which he summarized that her bodily injuries were “self-inflicted”. She refused to sign the report, as she felt it had wrongly presumed that her injuries could have been “self-inflicted”. She asked for a forensic examination to be carried out by an independent doctor, but her request was rejected by the Kharkiv Regional Prosecutor’s Office.

148. On 27 April 2012 the Ombudsman published pictures of the applicant’s bruises. On the next day, the Kyiv City Prosecutor Office allegedly searched the Ombudsman’s office and served writs on a number of her staff members who had been involved in reporting on the applicant’s physical injuries in the colony. According to the applicant, the Government declared that Ms Nina Karpachova had forced her staff to make a false statement about the bruises on the applicant’s body, without mentioning any names or sources for that statement.

149. On 3 May 2012 the investigator at the prosecutor’s office again refused to institute criminal proceedings against colony staff due to the absence of any indication of a crime in their actions. He noted in his decision, inter alia, the following:

“On 24.04.2012, upon referral by the Oblast prosecutor’s office, in a residential area of the colony, expert in forensic medicine SERBINENKO I.Yu. offered Tymoshenko Yu.V. to have a forensic medical examination. She flatly refused …

On 26.04.2012, at 7.55, Tymoshenko Yu.V., again, flatly refused having a forensic medical examination with participation of SVENTITSKA S.G, head of the forensic medicine department at Kharkiv Oblast Forensic Medicine Centre …

Copies of written requests by Tymoshenko Yu.V., dated 24.04.2012, in which she asks to carry out her examination aimed at registration of her injuries by the staff of the colony, with presence of the prosecutor and indicates her unwillingness to be examined by the expert in forensic medicine Serbinenko I.Yu., were added to the materials of the investigation. In the same documents, Tymoshenko Yu.V., with her own hand, indicated that staff of Kachanovska Correctional Colony no. 54 (doctor on duty Malyuga V.A., nurse on duty Rodina V.I., head of the medical unit Tsyura O.M., senior police operative at the operation branch Makarenko A.M.) examined her, and all her injures, as of 24.04.2012 were documented, and all the relevant data were entered into her medical records. …”

150. According to the Government, in order to establish the circumstances of the applicant’s transfer to the hospital on 20 April 2012, her return to the colony on 22 April 2011 and her bodily injuries, the investigator had collected evidence from the head of the colony and fourteen other colony employees, two medical workers and two ambulance drivers who had been on duty, six members of the medical panel, two employees of the hospital and other individuals.

151. The head of the colony stated that on 20 April 2012 he had granted permission for the applicant’s transfer to the hospital. He had then given instructions to the deputy head of the colony (also head of the security department) and another deputy head of the colony to ensure the applicant’s transfer. He had been informed that the applicant had not objected to her transfer and had not complained of the infliction of any injuries. On 22 April 2012 the applicant had been visited by the colony medical staff on duty, who had observed no injuries on her body, while the applicant herself had made no statement about having suffered any injuries. The head of the colony had not given any instructions to his subordinates to use physical force on the applicant.

152. The deputy head of the colony stated that on 20 April 2012 he had been helping the applicant to come down the stairs to the ambulance and had accompanied her to the hospital. As she slowly descended the stairs from the second floor to the first, the applicant had told him that she was tired and had allowed him to carry her. He had carried the applicant to the ambulance, had placed her on a stretcher and had helped the driver to put the stretcher into the ambulance. He made it clear that no bodily injuries had been inflicted on the applicant in his presence. Similar statements were also given by the other deputy head of the colony and by a senior inspector.

153. The head of the colony medical department stated that on 20 April 2012 at about 7 p.m., he and two deputy heads of the colony had gone to the applicant’s cell and had informed her that she was to undergo an examination and to be hospitalised. He had asked her to gather together her personal belongings. At about 9.30 p.m. the applicant had been put into the ambulance. During her transfer to the hospital, she had not expressed any complaints that bodily injuries had been inflicted on her. The head of the colony medical department stated that the applicant had not lost consciousness. Once the ambulance had arrived at the hospital, the applicant had been advised to undergo an initial medical examination, but she had refused to do so. On 23 April 2012 at about 9.30 a.m. colony medical staff had gone to see the applicant, who had refused to undergo a medical examination. She had not made any complaints and the staff had not found any injuries on her body. At approximately 8.39 a.m. on 24 April 2012, in the course of their visit, changes had appeared on the applicant’s skin and she had allowed the medical officers to examine them. The head of the colony medical department noted, however, that she had categorically refused to allow a forensic examination of her injuries. Evidence to the same effect was also given by the colony’s doctor, by the colony’s duty doctor and by the nurse.

154. Guards from the colony’s surveillance and security department stated that on 20 April 2012 they had been on day duty in department no. 1 of the colony, where the applicant’s cell was situated. The department was equipped with video cameras working in real-time mode but without a recording function. While viewing the applicant’s cell on the monitor, one of the inspectors said that he had seen no use of physical violence on the applicant by the members of colony staff who had visited her; nor had he heard any noises. Once the staff members had left the cell, the inspector had seen on the screen that the applicant had taken a shower, had gathered her belongings together and had got into bed. In the course of the video surveillance, the guards had not noticed that the applicant had sustained any bodily injuries.

155. A cardiologist and paramedic working as part of the emergency team and the ambulance driver submitted that on 20 April 2012 they had arrived at the colony in the evening. They had seen a young man carrying the applicant in his arms from the doors of the exercise yard and placing her on the stretcher. They had not noticed any injuries on the applicant’s body.

156. The colony staff involved explained that at about 10 p.m. on 20 April 2012 they had entered the ambulance to take the applicant to the hospital and had later accompanied her to a ward on the ninth floor. The applicant had not made any complaints in their presence. According to them, no-one had inflicted any bodily injuries on her.

157. The doctor and ambulance driver stated that they had been on duty on 22 April 2012. After their arrival at the hospital at about noon the applicant had been carried out on a stretcher and placed on the gurney.

158. The Deputy Minister of Health stated that the applicant had been driven to the colony accompanied by police vehicles. She had not made any complaints to the persons involved and they had not noticed that she had any bodily injuries. She stated that on 20 April 2012 the medical panel had advised the applicant to start the treatment at the hospital. The applicant had not refused the treatment but had wanted to consult her lawyer. At about 10.40 p.m. she had been brought to the hospital, but the witness did not know the specific details of her transfer. She knew that from 20 to 22 April 2012 the applicant had been refusing to allow any kind of medical examination or treatment. During her visit to the applicant, the latter had not made any complaints and there had been no bodily injuries on any visible part of her body. Evidence to the same effect was given by other members of the medical panel.

159. The hospital doctors stated during their questioning that after the applicant’s arrival at the hospital at 10.40 p.m., she had immediately been hospitalised. During her admission there she had refused to allow any medical examination of her. On 21 April 2012 she had only complained of pain in her back and a headache; she had not made any other complaints.

160. The applicant’s cellmate stated that in the afternoon of 20 April 2012 colony staff had come into the cell and had notified the applicant that permission had been granted to hospitalise her. The applicant had refused to be transferred to the hospital, but the head of the colony medical department had asked her to be prepared to be transferred. The cellmate was asked by the applicant to prepare what was necessary in case it would be needed. The applicant’s cellmate went on to explain that at about 9.00 p.m. staff had taken her out of the cell and had accompanied her to the medical unit.

161. In the course of the inquiry, prisoners who were serving sentences in the colony and who had occupied cells next to the applicant’s cell were questioned. They stated that in the evening of 20 April 2012 they had not heard any cries or other noise.

4. Subsequent developments in the applicant’s medical treatment

162. On 4 May 2012 the applicant informed the Court that Ukrainian legislation did not provide for the possibility of outside doctors (either Ukrainians or foreigners) to take part in treatment in a particular hospital if they were not employed by it.

163. On the same date the Government informed the Court that they would grant an exemption to the aforesaid rule and allow the German doctors to join the Ukrainian medical team from the Central Clinical Hospital and be involved in the applicant’s medical treatment, which was to start on 8 May 2012.

164. On 9 May 2012 the applicant was transferred to the Central Clinical Hospital, where she started her medical treatment under the supervision of a German neurologist. On the same date she ended her twenty-day hunger strike.

165. In a letter of 12 May 2012 the applicant’s lawyer stated that the applicant had been under round-the-clock video surveillance, even while undergoing medical procedures. The prison authorities had also allegedly published a full report of the applicant’s medical history in the Ukrainian media and released video recordings which the lawyer claimed had been taken in her prison cell.

166. According to a report made by the German doctor regarding the treatment of the applicant between 7 and 17 May 2012, the termination of her hunger strike had been slow but successful and had allowed the commencement of some physiotherapeutic measures. However, the disclosure on the television of her diet and treatment on 15 May 2012 had triggered her strong indignation. As a result, the applicant had interrupted her treatment and had even contemplated completely refusing to follow it and returning to the prison. She had been convinced to continue the treatment under the condition that no doctors not directly involved in it would be present at the regular doctors’ consultations conducted in the hospital.

167. On 16 May 2012 the applicant filed a criminal complaint concerning her permanent surveillance in the hospital and publication of the confidential information concerning her state of health. On 1 June 2012 the prosecutor notified the applicant that there were no grounds to take any prosecution measure in this respect.

168. On 27 May 2012 the German doctor issued another report covering the applicant’s treatment between 21 and 27 May 2012. He noted the cooperative attitude of the Central Clinical Hospital doctors, who had been taking due note of his recommendations. As also noted in the report, the applicant had confidence in the competence and good faith of the hospital’s medical staff. The doctor further indicated the progress of the therapy and an increase in the applicant’s free time to three-and-a-half hours daily. At the same time, he pointed out that the applicant was under stress owing to the permanent video surveillance and presence of a security guard in her ward. He specified that the applicant had only been screened off from the video cameras using a curtain during his visits. This had often only taken place following his reminders. The guard had stayed in the ward during all medical procedures. Lastly, the doctor noted that the applicant had continued to refuse to allow any laboratory blood analysis to be conducted in Ukraine and therefore considered the possibility of that analysis being conducted in Germany.

169. On 31 May 2012 the interim measure applied on 15 March 2012 was lifted, following the Government’s request of 21 May 2012. On the same date, the applicant’s second request for an interim measure, made on 25 April 2012, was rejected.

170. On 1 June 2012 the German doctor issued another report on the applicant’s treatment, in which he summarised the impediments to its success as follows:

–            the applicant had accumulated, over the preceding eight months, profound mistrust towards Ukrainian doctors because they were civil servants, and was refusing to receive any treatment from them or to allow any blood samples to be taken for analysis;

–            it was impossible to have confidential doctor-patient conversations with the applicant – an essential part of the requisite therapy – because of the permanent video surveillance and the presence of a security guard and another inmate whose connection with the State authorities remained unclear;

–            there had been breaches of confidentiality relating to examination results, diagnoses and medical prescriptions (for example, the reports made by the German doctors had been disclosed on the Internet without the agreement of the applicant or the doctors);

–            the applicant was refusing to allow any medical measures requiring physical intimacy for fear of being discredited in the eyes of the public by the disclosure of the video records; and

–            interdisciplinary therapy was difficult to organise given the Charité Hospital’s inability to send a full team of doctors.

171. According to a letter sent by the Government dated 11 July 2012, the information which had been disclosed in the media had concerned the applicant’s diet and the scheduling of her medical procedures and had not been, contrary to her allegations, confidential. They also denied that it had contained any information concerning the applicant’s state of health and the nature of the medical procedures she had been undergoing.

172. On 8 June 2012 the applicant brought an administrative action before the Kyiv District Administrative Court, which she further complemented on 31 August, 21 September, 17 October and 24 October 2012. The applicant requested the court (i) to recognise as illegal the actions by officials of the State Penitentiary Service and of the Kachanivka Colony on the failure to fulfil her right to make telephone calls in accordance with Article 110 of the Criminal Code; (ii) to oblige the State Penitentiary Service and the Kachanivka Colony to meet the requirements of Article 110 of the Criminal Code by providing her a right to telephone calls including on the territory of the Central Clinical Hospital of the State Railway; (iii) to recognise as illegal the actions of the officials of the State Penitentiary Service and the Ministry of Health on the dissemination of confidential information regarding her and the state of her health; (iv) to prohibit the Ministry of Health and the State Penitentiary Service from disclosing confidential information regarding her and the state of her health in the future; (v) to recognise as illegal the actions of the officials of the Kachanivka Colony and the Main Department of the Ministry of the Interior in the Kharkiv region of installing video cameras including hidden ones on the ninth floor of the Central Clinical Hospital of the State Railway and the video surveillance of the applicant; (vi) to recognise as illegal the actions of the officials of the Kachanivka Colony of filming the applicant in the Central Clinical Hospital of the State Railway; (vii) to bind by a commitment the Kachanivka Colony and the Main Department of the Ministry of the Interior in the Kharkiv region at the entry into force of the decision to cease surveillance and remove surveillance equipment that is located on the ninth floor of the Central Clinical Hospital of the State Railway where she was accommodated; (viii) to recognise as illegal the actions of the officials of the Main Department of the Ministry of the Interior in the Kharkiv region in the implementation of public order, establishing barriers that impede the access of citizens to the ninth floor of the Central Clinical Hospital of the State Railway; and (ix) to recognise as illegal the actions of the officials of the Kachanivka Colony in providing male security officers at the Central Clinical Hospital of the State Railway.

173. In a judgment of 30 October 2012 the Kyiv District Administrative Court dismissed the applicant’s administrative application. In respect of the applicant’s complaint concerning the dissemination of the confidential information of her health condition the court stated as follows:

“The Ministry of Health of Ukraine denied the claim in this part on the grounds that the information about the plaintiff’s health condition is public, due to social publicity the information was given precisely in order to inform the public about important facts concerning the life and activities of a public person. The defendant states the press-release given on 16.02.2012 contains information about the activities of an established commission and the results of its work. The Ministry of Health further argues that the statement of the Minister is a comment on information which had been previously published in mass media.

The State Penitentiary Service of Ukraine denies the illegality of the disclosures of the above information, referring to the fact that this information was published to refute a statement released in the media and in the Internet. Specifically, the defendant states that information disseminated in the Internet on 25.11.2011, 01.12.2011, 08.12.2011, 13.02.2012, 17.02.2012, 27.02.2012, 09.03.2012, 23.03.12, reported the health status of the plaintiff, appeals of citizens, deputies and foreign diplomats to the defendant about the plaintiff’s health.

Having reviewed the materials submitted by the parties, the Court concludes that the information about the health condition and the fact of the plaintiff’s appeal for medical treatment was first disseminated by persons authorized by the plaintiff.

In particular, the case file contains a copy of the power of attorney dated 31.03.2011, registered under number 165 and issued by the plaintiff to Mr Sergii Volodymyrovych Vlasenko. By this power of attorney the plaintiff authorizes the mentioned person to provide judicial actions on her behalf.

Also, the case file contains a copy of the document signed on 17.02.2012 and addressed ‘To whom it may concern’, by the meaning of which Sergii Volodymyrovych Vlasenko and Eugenia Olexandrivna Tymoshenko were entitled to communicate with foreign and Ukrainian doctors, to make decisions on behalf of the plaintiff on full or partial withdrawal of the confidentiality of any data and results of medical examinations, including public disclosure and any other action with this information and data. This copy of the document contains the signature and decryption of the signature „Tymoshenko“.

The mentioned copy of the document was added to the case file in the court hearing of 30.07.2012 by a motion of the plaintiff’s representative S.V. Vlasenko.

The case file confirmed that information regarding the plaintiff’s health condition was disseminated by the above persons who had been authorized to do so by the plaintiff, since November 2011.

Given that information was distributed by the plaintiff’s authorized representatives, with whom the plaintiff continues to work and not withdrawing the power of attorney dated 31.03.2011, registered with number 165 and without notification about the cancellation of the right to disseminate information, the court finds that the dissemination of information on Y. Tymoshenko’s health condition and the fact of request for medical help was agreed with her and did not violate the legitimate rights and interests, including rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court ascertains that the dissemination of information by Yulia Tymoshenko’s authorized representatives about the health condition of the plaintiff draw a wide public response and heightened public interest in the country and abroad, as Mrs Yulia Volodymyrivna Tymoshenko is one of the prominent politicians and public figures of Ukraine during 1999-2011 years.

Accordingly, the aggregate of these facts gives a reason to believe that Mrs Yulia Volodymyrivna Tymoshenko is a public figure of the socio-political activities of Ukraine, whose life and activity causes heightened public interest of the public and media, both in Ukraine and in other countries.

The Court considers that the defendants had disseminated information about the refusals of the medical examination and conditions of detention in accordance with article 20 of the Law of Ukraine On Information, which establishes that the information with restricted access might be disseminated, if it is socially necessary, that is a subject of public interest and the right of the public to know this information prevails on the potential harm from its dissemination.

Instead, the defendants did not disseminate information on plaintiff’s diagnosis, the results of her examination or prescribed medical procedures, all disseminated information did not contain any names or other indications, which can identify the plaintiff’s disease.

Having considered the publications, which were added to the defendant’s objections, the panel of judges concluded that disseminated information by the defendants did not go beyond the previously directly defined boundaries by authorized representatives of the plaintiff and journalists who publicly provide adequate announcements and comments on various aspects of the health of Mrs Yulia Volodymyrivna Tymoshenko and the circumstances of her residence in the hospital. The Court considers that the information referred to by the plaintiff in proving her claims was given by the defendants in response to the initial comments of the plaintiff’s representatives in order to inform the public about the objective state of affairs, including responses to comments by Mrs Yulia Volodymyrivna Tymoshenko’s representatives.

Considering the injury of the plaintiff’s interests by dissemination of information about her, the Court concludes that the dissemination of information about health can not be considered as an invasion of privacy or a disclosure of information.

According to the court, the dissemination of information about the circumstances regarding the plaintiff, including measures that were not conducted on the plaintiff, including because of the refusal, does not violate the rights of the plaintiff.

174. In response to the applicant’s complaint on the unlawfulness of the video surveillance at the hospital, the court gave the following reasoning:

“According to Article 103 of the Penal Code of Ukraine, the administration of the colony may use audiovisual, electronic and other technical equipment to prevent escapes and other crimes, violations of established by law procedures of detention, to obtain necessary information about the behaviour of inmates. The administration of the colony shall inform prisoners about the use of equipment for surveillance and control. A list of surveillance and control equipment and the protocol of their application is determined by regulations of the central executive body of penitentiaries.

The panel of judges considers that this legal provision permits video surveillance of convicts, which is one of the measures in detention and control of convict’s behaviour. Such restrictions on the rights of the sentenced persons are directly stipulated by the Penal Code of Ukraine.

The plaintiff’s references in the court proceedings to surveillance by male security officers during the medical procedures and to surveillance with recorded camera images have not been proved. In this regard, the panel of judges has taken into account the expert opinion dated 22.10.2012, No. 26, according to which the file ‘Тимошенко в больнице.flw’[1], provided for research by the State Penitentiary Service of Ukraine, was not recorded on video-tape.

Given that the panel of judges reaches the conclusion that the actions of the defendants in video surveillance were legal.

With regard to the video surveillance provided by the Main Department of the Ministry of Internal Affairs of Ukraine in the Kharkiv region, the court assumes that, given the location of cameras which were set by the mentioned defendant, the plaintiff is not under video surveillance of the MIA of Ukraine in the Kharkiv region. Conducting video surveillance by this defendant with the purpose to protect public order does not violate the rights of the plaintiff and meets the requirements of the current legislation.

The panel of judges considers that surveillance over the movement of an unlimited number of persons, including the plaintiff, in the corridors of the hospital, is conducted legally and does not violate the rights of the plaintiff.

The Court concludes that the actions of the Main Department of Internal Affairs of Ukraine in the Kharkiv region on establishing barriers that impede the access of citizens to the ninth Floor of the STPI Ukrainian Railways Central Clinical Hospital does not violate the plaintiff’s rights, since the plaintiff is limited in movement because of the status of a sentenced person. Herewith, the restriction of the plaintiff to move freely in her hospital room, which is not disputed by the parties, denied the violation of the plaintiff’s limited access to the floor.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

175. Criminal Code 2001

Article 364. Abuse of power or office

“1. Abuse of power or office, namely the intentional use, for financial gain or with another personal interest or in the interest of third parties, by an official of his/her power or office against the interests of the service, if it has caused serious damage to the State or the public interest or to the lawful interests, rights and freedoms of natural or legal persons, –

shall be punishable by …

2. The same acts, if they caused grave consequences, –

shall be punishable by …”

Article 365. Exceeding authority or official powers

“1. Exceeding authority or official powers, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or the public interest or to the lawful interests, rights and freedoms of natural or legal persons –

shall be punishable by …

2. Exceeding authority or official powers combined with violence or use of a weapon, or combined with humiliating acts or acts causing pain to the victim, provided that such acts do not fall within the scope of torture, –

shall be punishable by …

3. Acts as described in paragraphs 1 or 2 of this Article, if they have caused grave consequences, –

shall be punished by imprisonment for seven to ten years with a prohibition of up to three years on occupying certain posts or carrying out certain activities.”

176. Code of Criminal Procedure 1961

Article 148. Purpose and grounds for the application of preventive measures

“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him from attempting to abscond from an inquiry, investigation or the court, from obstructing the establishment of the truth in a criminal case or pursuing criminal activities, and in order to ensure the execution of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. …”

Article 165-2. Procedure for selection of a preventive measure

“At the pre-trial investigation stage a non-custodial preventive measure shall be selected by a body of inquiry, investigator [or] prosecutor.

If a body of inquiry [or] investigator considers that there are grounds for remand in custody [it or] he shall, with the prosecutor’s consent, submit an application to the court. A prosecutor is entitled to submit a similar request. When considering the matter the prosecutor shall familiarise himself with all the material containing grounds for remand in custody, check whether the evidence was lawfully obtained and whether it is sufficient to bring charges [against the suspect].

The application shall be considered within seventy-two hours of the arrest of the suspect or accused.

If the application concerns the remand in custody of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of the suspect or accused and his escort to the court. In such a case, the detention shall not exceed seventy-two hours, or, if the person concerned is outside the locality in which the court operates, [the detention] shall not exceed forty-eight hours from the time the arrested person was brought to the locality.

Upon receipt of an application, the judge who is assigned [to the case] in accordance with Article 16-2 of this Code shall study the materials of the criminal case file submitted by the body of inquiry, investigator [or] prosecutor, question the suspect or accused, and, if necessary, obtain explanations from the person dealing with the case, hear the prosecutor, [and] the defence lawyer if [the latter] has appeared before the court, and deliver an order:

(1) refusing the preventive measure, if there are no grounds for its application;

(2) ordering the remand in custody of the suspect or accused.

The court shall only decide on the remand in custody of a person in his absence if that person is on the international wanted list. In such cases, after the arrest of the person and no later than forty-eight hours from the time of his transfer to the place where the proceedings are pending, the court, with the participation of the person [concerned], shall consider [whether to] apply a preventive measure in the form of remand in custody or [whether to] change [such a measure] and shall issue an order accordingly.

If the court has refused to remand the suspect [or] accused in custody, it shall have the power to apply a non-custodial preventive measure to him or her.

The court’s order may be appealed against to the court of appeal by the prosecutor, suspect/accused, his defence or representative within three days of its delivery. The introduction of an appeal shall not suspend the execution of the court’s order.

If remand in custody requires reviewing additional information concerning the character of the arrested person or ascertaining other circumstances of importance in order for a decision to be taken on this issue, the judge may extend the period of detention for up to ten days, or, upon the request of the suspect/accused for up to fifteen days, and shall issue an order accordingly. Whenever it is necessary to decide this issue in respect of a person who has not been arrested, the judge may defer consideration of the matter for up to ten days and take measures to ensure his/her good behaviour during this time or may order the arrest of the suspect or accused for this period.”

Article 274. The selection, discontinuation and change of a preventive measure by the court

“In the course of the consideration of a case the court may issue a ruling changing, discontinuing or selecting a preventive measure in respect of a defendant, if there are grounds for this.

The procedure for selecting detention as a preventive measure shall be governed by the relevant provisions of Chapter 13 of the Code.”

177. Code on the Enforcement of Sentences 2003

Article 103. Technical means of surveillance and control

“1. The administration of a colony has the right to use audio, visual, electronic and other technical means in order to prevent escape and other crimes by inmates, breaches of the prison rules, or in order to obtain necessary information about the behaviour of inmates.

2. The administration of a colony shall inform inmates about the use of technical means of surveillance and control.

3. The list of technical means of surveillance and control and the procedure for their use shall be established by regulations of the [Prisons Service of Ukraine]. …”

Article 106. Grounds for use of force […]

“1. Physical force … may be used against inmates with a view to putting an end to physical resistance, violence, rowdiness (буйство) and opposition to lawful orders of the colony administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them.

2. The use of force should be preceded by a warning if the circumstances so allow. …

4. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary. Any use of force must be immediately reported to the prison governor. …”

Article 107. Rights and duties of prisoners

“1. Prisoners have the right to … receive medical assistance and treatment, including medical services paid for at their own or their relatives’ expense. …”

Article 116. Medical and sanitary services for prisoners

“…

5. Prisoners may seek, at their own or at their relatives’ expense, medical assistance, including treatment, from civilian medical institutions. In such cases, medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his/her sentence, under the supervision of the colony’s medical staff.”

178. Health Care Act 1992

Article 6. Right to health care

“Every citizen of Ukraine has a right to health care, which includes:

(a) living standards, including food, clothing, accommodation, medical services and care which are necessary for maintaining a person’s health;

(b) qualified medical and/or welfare assistance, [which] includes the free choice of a doctor [and] methods of treatment in accordance with a physician’s recommendations …

(e) correct and timely information about his/her state of health and the state of health of the population, including potential risk factors and the scale of their severity;

(f) compensation for injuries to health;

(g) the possibility of an independent medical examination if a person disagrees with the conclusions of state medical experts, a prohibition on enforced treatment or any [other] activities which might violate a person’s rights and freedoms …”

179. Pre-Trial Detention Act 1993

Article 11. Welfare and Medical Care of Persons in Custody

“Persons remanded in custody shall be provided with living conditions which comply with sanitary and hygiene requirements.

The standard size of a cell cannot be less than 2.5 square metres per person …

Persons under arrest under the regulations of the Cabinet of Ministers are entitled to free food, a personal sleeping space, bedding, and other necessities. Where appropriate they shall be provided with clothing and shoes ….

Health care and rehabilitation services, … are organized and provided in accordance with the Health Care Act.

The order of granting health services to persons under arrest, using hospitals, and examinations by physicians shall be determined by the [State Prisons Service] of the Ministry of Defence and the Ministry of Health.”

180. The Ukrainian Cabinet of Ministers’ Resolution no. 336 of 16 June 1992 “On Food and Nutrition Standards for Persons Detained in State Prisons Service Prisons and Pre-Trial Detention Centres or in Temporary Police Detention Facilities, Reception Centres and Other Temporary Remand Centres of the Ministry of the Interior” establishes detailed nutrition standards for detainees and prisoners, according to which the daily nutrition value should be 3,026.2 kCal.

181. Code of Administrative Justice of 6 July 2005 (in force from 1 September 2005):

Article 2. Role of the administrative justice system

“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons and the rights and interests of legal entities in the field of public-law relations from violations by public authorities …

2. Any decisions, actions or inaction on the part of public authorities may be appealed against to the administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity …

3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken:

(6) reasonably;

(8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual’s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve;

…”

Article 6. The right to judicial review

“1. Everyone has a right to apply to the administrative courts, in accordance with the procedure envisaged by this Code, if he or she considers that his/her rights or interests are breached by a decision of a public authority, or its actions or inactivity. …”

Article 8. The rule of law

“1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State.

2. A court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights. …”

Article 17. Jurisdiction of administrative courts in deciding administrative cases

“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by … public authorities and [legal relationships arising] in the course of the public formation of a … public authority by way of an election or referendum.

2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular:

(1) disputes between physical persons or legal entities and … public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity;

…”

Pursuant to Article 117, an administrative court may suspend a disputed decision by way of application of an interim measure, on an initiative of the party to procedure. A measure may be applied if there exists a real danger of harm to the plaintiff’s rights, freedoms and interests, or if there are grounds to believe that a failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. An interim measure can also be applied if it is evident that the contested decision is unlawful.

According to Article 162 of the Code, the administrative court, should it find an administrative claim substantiated, may (amongst other things) declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. It may also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision.

182. The issue of compensation for unlawful detention in Ukraine is regulated by the Act “On the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of enquiry, pre-trial investigation authorities, prosecutor’s offices and courts” of 1 December 1994 (“the State Compensation Act”). The relevant provisions of the State Compensation Act (as worded at the relevant time) can be found in the judgments in the cases of Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005) and Klishyn v. Ukraine (no. 30671/04, §§ 49-50, 23 February 2012).

III. RELEVANT MATERIALS OF THE COUNCIL OF EUROPE

183. Recommendation Rec(2006) 2 of the Committee of Ministers of the Council of Europe to member States on the European Prison Rules reads, insofar as relevant, as follows:

“…

4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.

10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.

18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.

18.2 In all buildings where prisoners are required to live, work or congregate:

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;

b. artificial light shall satisfy recognised technical standards;

18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.

18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.

19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.

19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interests of general hygiene.

21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.

22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.

22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.

22.3 Food shall be prepared and served hygienically.

22.4 There shall be three meals a day with reasonable intervals between them.

27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.

…”

184. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (published on 23 November 2011) read as follows:

“5. Conditions of detention of the general prison population

a. pre-trial establishments (SIZOs)

i) the SIZO in Kyiv

100. The SIZO in Kyiv occupies a complex of buildings in one of the central areas of Kyiv. Some of the detention buildings had been constructed some 140 years previously. Three smaller, more recent blocks provided accommodation for sentenced working prisoners, women and juveniles. A new block for women was in the process of construction, but that process had virtually been halted due to lack of resources.

With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates, including 217 women and 69 juveniles. The vast majority of the inmate population was on remand. The establishment was also holding 297 inmates awaiting the outcome of their appeal (including 41 life-sentenced prisoners), 93 prisoners in transit and 100 sentenced inmates assigned to work in the prison’s general services and maintenance. Further, there were 11 inmates who had been subject to forensic psychiatric assessment and who were awaiting a final decision concerning their criminal responsibility. The prisoner population comprised 210 foreign national prisoners (of whom 170 were from countries of the Commonwealth of Independent States).

Since 2001, following amendments to the CC, a section referred to as an “arrest house” had been set up for first-time offenders serving sentences of up to 6 months.

103. Material conditions prevailing in the section for women were somewhat better [than those in the section for men]. In particular, the cells were less overcrowded (e.g. 6 inmates in a cell measuring 8 m²; 16 prisoners in a cell measuring 27 m²). The cells had good access to natural light, but ventilation was inadequate and prisoners complained that in the summer the cells became very hot. The in-cell sanitary annexes were fully partitioned and had both cold and hot water taps. Some of the cells had been decorated by the inmates themselves and gave a homely impression.

104. The section for sentenced working prisoners provided the best conditions of detention in comparison with the other sections. The dormitories were adequately lit, well ventilated and clean. They were suitably furnished (beds, tables and chairs or stools, some shelves and lockers) and inmates could have their own radio or television. Further, the section comprised a sports hall, a spacious “club” where prisoners could watch films and play table tennis, and a chapel.

105. The prison did not provide inmates with personal hygiene products other than soap. As mentioned in paragraph 88, access to the shower was limited to once a week.

As regards food, prisoners were provided with three meals a day. The quantity of the food appeared to be sufficient, but many prisoners complained about its poor quality and lack of variety. In particular, there was no fresh fruit, eggs or milk (not even for juvenile prisoners). To supplement their diet, prisoners relied to a great extent on food parcels from their families and purchases from the prison shop.

The SIZO had a library with a collection of some 27,000 books. The delegation was surprised to learn that remand prisoners were not allowed to receive books (other than the Bible) or newspapers from outside. The CPT would like to receive the Ukrainian authorities’ comments concerning this prohibition.

The only regular out-of-cell activity was outdoor exercise of one hour per day, which took place in a series of exercise yards located on the top of the accommodation blocks. By virtue of their size and configuration, these high-walled, bare areas (measuring between 16 and 60 m²) did not allow prisoners to exercise themselves physically.

The CPT recommends that the Ukrainian authorities make strenuous efforts to offer organised out-of-cell activities (work, recreation/association, education, sport) to prisoners at the Kyiv SIZO. Further, the Committee recommends that steps be taken to construct more appropriate exercise yards which allow prisoners to exert themselves physically, as well as indoor and outdoor sports facilities.

6. Health care

a. introduction

123. In the course of the 2009 visit, the delegation was informed of a proposal to set up a working group to study the transfer of prisoners’ health care to the Ministry of Health. The CPT can only encourage this initiative, which is consistent with the remarks made in paragraph 142 of the report on its 1998 visit, namely that a greater involvement of the Ministry of Health in the provision of health-care services in prison will help to ensure optimal health care for prisoners, as well as implementation of the general principle of the equivalence of health care with that in the outside community. The Committee wishes to be informed of the action taken on the above‑mentioned proposal.

In this context, the CPT also wishes to stress the need for continued professional training for prison health-care staff, with a view to enabling them to perform their duties satisfactorily. The Committee would like to be informed of the national policy in this respect.

124. The reports on previous visits by the CPT to Ukraine contain a number of recommendations, comments and requests for information in the area of provision of health care to prisoners. Despite efforts made by the Ukrainian authorities in recent years and the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to inmates remains problematic, due to the shortage of staff, facilities and resources. During the visit, the delegation heard a number of complaints from prisoners at the establishments visited concerning delays in access to a doctor, lack of medication, and the inadequate quality of care.”

185. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 29 November to 6 December 2011 [CPT/Inf (2012) 30] read as follows:

“… 48. On the occasion of this visit and in the light of reports recently received by the CPT, the delegation also examined in detail the health care being provided to certain persons who were being held at the Kyiv SIZO and, in particular, Mr Valeriy IVASHENKO, Mr Yuriy LUTSENKO and Ms Yulia TYMOSHENKO.

In this connection, the CPT would like to stress that the role of medical members of a visiting delegation is not that of a treating doctor; their task is to assess the quality of health care and, more specifically, the access to medical treatment of detained persons. The Committee also wishes to recall that the prison authorities are responsible for the health care of all prisoners; all efforts possible must be made to ensure that a precise diagnosis is promptly established and that adequate treatment required by the state of health of the person concerned is provided to all prisoners.

The CPT must express its concern that in respect of each of the three above-mentioned persons, considerable delays occurred – for various reasons – in arranging specialised medical examinations outside the SIZO. Problems of this kind have repeatedly been observed by the CPT during all previous visits to the Kyiv SIZO as well as to other penitentiary establishments in Ukraine. The Committee urges the Ukrainian authorities to take all the necessary measures to ensure that in future, all prisoners who are in need of specialist treatment/examinations are transferred to an outside hospital without undue delay.”

186. The relevant extracts from the Government’s response to the above CPT Report [CPT/Inf (2012) 31] read as follows:

“Regarding paragraph 48

Ukraine and the Ministry of Healthcare of Ukraine of 10.02.2012 No. 239/5/104 all persons put under custody enjoy the possibility to receive specialized medical assistance in healthcare institutions of the Ministry of Healthcare of Ukraine without delays.

Regarding paragraph 49

In respect of the convict Ms. Julia Tymoshenko

During the time Ms. Julia Tymoshenko spent in Kachanivska penal colony (No. 54) until May 9, 2012, inclusively, 21 medical boards were set up comprising over 20 academicians, PhDs of medical sciences and Associates of Sciences; she refused to undergo medical examinations in 13 cases.

In addition, pursuant to the Joint Order of the SPS of Ukraine, the Ministry of Healthcare of Ukraine and the Ministry of External Affairs of Ukraine of 10.02.2012 No. 69/105/40 ‘On establishment of Medical Board Comprising Foreign Specialists for Medical Examination of Ms. Julia Tymoshenko and Support of Operation of this Board on the Territory of Ukraine’ the international medical board comprising foreign specialists was established, which performed medical examinations of convict Julia Tymoshenko on February 14 and 15, 2012, and gave relevant recommendations.

It must also be noted that medical workers of Kachanivska penal colony (No. 54) proposed on a daily basis convict Julia Tymoshenko to undergo medical examinations, which were turned down by her in most cases. Out of 284 proposed medical examinations, 247 were turned down.

All board medical examinations with respect to convict Julia Tymoshenko were performed exclusively based on her written consent. Medical examinations of convict Julia Tymoshenko performed by medical personnel of Kachanivska penal colony (No. 54) were compliant with legal regulatory acts regulating procedures for provision of medical assistance to detained and convict persons.

On April 20, 2012 the board of Ministry of Healthcare and SPS specialists proposed Ms. Julia Tymoshenko to continue her treatment in the facilities of Central Clinical Hospital of UKRZALIZNYTSIA general health institution, in which, according to the opinion of German specialists, most favourable conditions were created for rehabilitation of Ms. Julia Tymoshenko.

Upon her arrival to the hospital on April [21], 2012 convict Julia Tymoshenko refused to undergo initial medical screening and examination and to start the course of rehabilitation measures.

On [sic] April, 2012 in view of implicit refusal of convict Julia Tymoshenko to sign informed consent for initial medical screening and medical intervention, she was signed out from the hospital and transferred back to Kachanivska penal colony (No. 54).

On May 4, 2012 after the course of rehabilitation measures was suggested to Ms. Julia Tymoshenko by German and Ukrainian doctors, she agreed in the oral form to undergo this course in the facilities of Central Clinical Hospital of UKRZALIZNYTSIA general health institution under supervision of specialists from German Clinic ‘[S]harite’.

On May 9, 2012 Mrs. Julia Tymoshenko was hospitalized in the said healthcare institution with the purpose to undergo the course of rehabilitation measures under supervision of specialists from German Clinic ‘[S]harite’, where she stays until present. …”

IV. OTHER RELEVANT INTERNATIONAL MATERIALS

187. The relevant extract of the Country Report on Human Rights and Practices of the US Department of State released by the Bureau of Democracy, Human Rights and Labor in respect of Ukraine reads as follows:

“There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecutions by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulyia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials.”

188. On 9 June 2011 the European Parliament adopted a resolution on Ukraine: the cases of Yulia Tymoshenko and other members of the former Government. The resolution reads in so far as relevant as follows:

“The European Parliament,

… G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including … the former First Deputy Minister of Justice, Yevhen Korniychuk, who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services, …

I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights, …

1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends;

2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied …

3. Reminds the Ukrainian authorities that the principle of collective responsibility for the decisions of the government does not permit the prosecution of individual members of the government for decisions that were taken collegially; … ”

THE LAW

I. SCOPE OF THE CASE

189. The Court notes that, after the communication of the case to the respondent Government, the applicant raised several new complaints.

190. In particular, in her submissions received by the Court on 8 June 2012 the applicant complained of violations of Articles 5 and 6 of the Convention and of Article 4 of Protocol No. 7 arising from the criminal proceedings regarding her tenure as the head of United Energy Systems of Ukraine.

191. In the Court’s view, the applicant’s new complaints are not an elaboration of her original complaints to the Court on which the parties have commented. The Court considers, therefore, that it is not appropriate to take these matters up in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION

192. The applicant first complained under Article 3 of the Convention about the conditions of her detention in Kyiv SIZO no. 13, which, according to her, had amounted to degrading treatment prohibited by this provision. In addition, she submitted that the fact that the order for her detention was unlimited in duration had caused her continuous psychological suffering.

193. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

194. The Government maintained that the applicant’s complaints concerning the conditions of her detention in Kyiv SIZO no. 13 and in the Kharkiv colony were manifestly ill-founded. They contended that the conditions of the applicant’s detention in both cells had been in compliance with Article 3 standards.

195. The applicant argued that the conditions of her detention in two of the three cells had been unacceptable on account of poor ventilation, limited outdoor walks, lack of drinking water, the poor quality of food, and lack of heating in one cell she had been detained in. According to her, the conditions of her detention in the colony could not be regarded as adequate, in particular, because she had not been able to have a daily outdoor walk.

B. The Court’s assessment

196. The Court recalls that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, e.g., Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). It has also found that the distinction between “torture” and “inhuman or degrading treatment” was intended to “attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering” (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25). The Court refers to the further principles established in its case-law in respect of conditions of detention (see Sarban v. Moldova, no. 3456/05, §§ 75-77, 4 October 2005).

197. To fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Ireland v. the United Kingdom, cited above, § 162).

198. If a person is detained the State must ensure that the conditions are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately ensured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention (see Ostrovar v. Moldova, no. 35207/03, § 80, 13 September 2005).

199. The Court observes that despite some inconsistency in the applicant’s submissions concerning the area of her cell and the frequency with which she was able to take a shower (see paragraphs 40 and 44 above), the parties agree in substance that: (i) the applicant was kept in Kyiv SIZO no. 13 for four months and twenty days together with one or two other women in a cell measuring about 16 square metres; and (ii) she was allowed to take a shower at least twice a week (see paragraphs 40 and 44 above). The remaining facts are in dispute between the parties.

200. The Court has frequently found a violation of Article 3 of the Convention on account of a lack of personal space afforded to detainees (see Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X; Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Melnik v. Ukraine, no. 72286/01, § 103, 28 March 2006; Visloguzov v. Ukraine, no. 32362/02, § 46, 20 May 2010; and Iglin v. Ukraine, no. 39908/05, § 52, 12 January 2012). It notes, however, that contrary to the above-mentioned cases, the applicant in the present case had over five square metres of personal space in cell no. 242. The Court does not have any information about the area of cell no. 300, where the applicant was moved on 25 November 2011 before she was transferred to cell no. 206 in the medical unit (see paragraph 47 above).

201. The Court observes, moreover, that instead of the size of the relevant cell, the focus of the applicant’s complaint in this part of the application related to the limited access to natural light and air available in cell no. 242, the lack of the provision of hot water and other living conditions, and the lack of heating in cell no. 300. The Court accepts that the applicant could have experienced certain problems on account of the material aspects of her detention in the relevant cells. At the same time, the Court is unable to determine whether such drawbacks affected her in any significant way. Nor is there any evidence that the internal lighting or ventilation systems were deficient or that the lack of hot water supply was permanent. In addition, the Court notes that the applicant was in regular contact with her relatives, who provided her with a sufficient quantity of good quality bed linen and food and that she was also able to communicate with the outside world, including her counsel, during the entire period of her detention in SIZO no. 13. Lastly, the Court does not consider on the basis of the available material that the other material conditions referred to by the applicant were such as to amount to degrading or inhuman treatment.

202. In respect of the material conditions of detention in Kachanivska Colony, the Court observes that the applicant was detained, with a short interruption between 20 and 22 April 2012, on the premises of this penitentiary institution from 30 December 2011 to 9 May 2012 when she was transferred to the Central Clinical Hospital (see paragraphs 111 and 164 above). The period to be taken into account, therefore, is four months and seven days. The applicant was detained together with another female inmate in a cell which measured 37.1 square metres, was equipped with two PVC windows each measuring 3.5 square metres which provided natural light and aeration. The cell was also artificially lighted and ventilated mechanically (see paragraph 111 above). Moreover, there was a separate shower room of 3.5 square metres and a toilet of 4.1 square metres. Taking also into account other conditions described in detail above (see paragraphs 113-114) the Court considers that the material conditions of the applicant’s detention in the Kachanivska Colony were compatible with the Convention standards. The Court notes that the applicant could not use her right to daily walks due to her walking difficulties connected with her state of health, and that a stick, crutch or a walker would facilitate her locomotion. Whilst that during the period under consideration the applicant’s situation may have been uncomfortable, it was not so harsh as to reach the threshold of severity required to bring it within the ambit of Article 3 of the Convention.

203. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE MEDICAL TREATMENT PROVIDED TO THE APPLICANT

204. The applicant further complained, under Articles 2 and 3 of the Convention, of a lack of appropriate medical treatment during her detention. She had refused to allow any doctors other than those she had trusted to examine her due to her suspicion of maltreatment by the prison doctors and nurses. In addition, the fact that the order for her detention had been unlimited in duration had was detained for an unlimited period of time caused her to suffer continuous psychological suffering.

205. The Court finds it appropriate to examine the applicant’s complaints under Article 3 of the Convention.

A. Parties’ submissions

206. The Government in their extensive observations described the details of the medical care provided to the applicant. They concluded that her treatment had been adequate and ought not to be called into question by the applicant herself or the Court. According to them, the doctors from the SIZO medical unit had made genuine efforts to ensure the applicant’s well‑being during her detention there.

207. With respect to the colony in Kharkiv, the Government maintained that the colony had had all the necessary equipment and medicines required to provide the applicant with adequate medical treatment. Moreover, the applicant had had access to the services of medical specialists from leading Ukrainian and foreign healthcare institutions.

208. In sum, the Government contended that the national authorities had done everything possible in order to discharge their positive obligation under Article 3 of the Convention as regards medical care for the applicant in detention. They pointed out her numerous – in their view, fully unjustified – refusals to agree to undergo medical examinations or other procedures, for which they submitted the authorities could not be held responsible.

209. The applicant maintained that the authorities had underestimated the seriousness of her health problems and had failed to provide her with prompt and adequate medical care until German doctors had issued a report on her illness in February 2012, while the symptoms of her deteriorating health had been confirmed by a number of internationally recognised medical experts already before. According to her, the constant manipulation of the information concerning her state of health, by providing her with painkillers on condition of her cooperation with law-enforcement bodies while knowing that she was seriously ill, had shown the lack of compliance by the Government with their obligations to provide appropriate medical assistance.

B. The Court’s assessment

210. According to the Court’s case-law, Article 3 of the Convention imposes an obligation on States to protect the physical well-being of persons deprived of their liberty (see Kudła, cited above, § 94). At the same time, it cannot be construed as laying down a general obligation to release detainees on health grounds. Rather, the compatibility of a detainee’s state of health with his or her continued detention, even if he or she is seriously ill, is contingent on the State’s ability to provide appropriate treatment of the requisite quality in prison (see Goginashvili v. Georgia, no. 47729/08, § 79, 4 October 2011).

211. The “adequacy” of medical assistance remains the most difficult element to determine. On the whole, the Court retains sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, §§ 139-140, 22 December 2008). The Court has also held that Article 3 cannot be interpreted as requiring a prisoner’s every wish and preference regarding medical treatment to be accommodated (see Mathew v. the Netherlands, no. 24919/03, 29 September 2005).

212. The mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention (see, e.g., Khudobin v. Russia, no. 59696/00, § 83, ECHR 2006‑XII (extracts)), that diagnosis and care are prompt and accurate (see Hummatov, cited above, § 115, and Melnik, cited above, §§ 104-106), and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis (see Hummatov, cited above, §§ 109 and 114; Sarban, cited above, § 79; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116, and Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006).

213. The Court has also held that the State may not be held responsible for delays caused by the applicant’s own refusals to undergo medical examinations or accept treatment, where the materials available to the Court show that qualified medical assistance was made available to the applicant but that he or she voluntarily refused it (see Knyazev v. Russia, no. 25948/05, § 103, 8 November 2007).

214. Turning to the present case, the Court notes that it transpires from the voluminous case-file materials and submissions by the parties that the applicant’s health received considerable attention from the domestic authorities, which invested resources and efforts far beyond the normal health-care arrangements available for any ordinary detainee in Ukraine. The applicant was examined by the doctors from the SIZO medical unit but refused to undergo a detailed medical examination. On 6 August 2011 she refused to be seen by a generalist, a psychiatrist, and a dentist, to have her blood pressure checked, and to undergo an electrocardiogram, fluorography examination, and blood and urine tests. She maintained her refusal on 12 August 2011 (see paragraph 59 above). She had consultations with medical professionals or received treatment every day until 30 August 2011 (see paragraphs 59-69 above). On a number of occasions she was seen by doctors when Dr. P., whom she said she trusted, was present (see paragraphs 67, 79 and 104 above). Nevertheless, she refused to allow examinations and laboratory tests by two laboratories outside the SIZO and insisted on a confidential examination by doctors of her choice and on a laboratory examination without the medical panel being informed of the results (see paragraphs 61-62 and 70 above). On 27 and 30 August and 3 September 2011 the applicant was advised to undergo an examination by the medical panel in the presence of Dr P., whom she trusted (see paragraphs 69-70 and 72 above), but she refused to do so. Moreover, the head of the SIZO medical unit examined her on a frequent basis, either finding no serious changes in her state of health or considering it satisfactory (see paragraphs 61, 64-65, 68, 71, 74-75 and 81 above). The Court notes that while the applicant refused to be seen by the medical panel in the presence of Dr P., she required to be examined by the latter during a number of visits by the head of the SIZO medical unit (see paragraphs 62‑63 above).

215. Having regard to the development of the applicant’s medical treatment during the period from August to December 2011, the Court cannot accept the applicant’s argument that it was not until after the involvement of the foreign doctors that she was afforded specialised treatment. It notes in this respect the findings of the CPT, which visited SIZO no. 13 between 29 November and 6 December 2011 and examined in detail the health care provided to the applicant and two other detainees, former members of the applicant’s Government. While it again expressed its previously stated concerns regarding the arrangement of specialised medical examinations outside SIZOs in respect of these three persons and considerable delays in arranging specialised medical examinations outside the SIZO, the CPT did not raise any particular concern in respect of the inappropriateness of the medical treatment provided to the applicant as such (see paragraph 185 above).

216. The Court is mindful that patient trust is a key element of the doctor-patient relationship. It is particularly important and yet, at the same time, often difficult to create in pre-trial detention facilities and other penal institutions. On the one hand, patients may refuse to allow a medical examination through simple anxiety. In that case, doctors should increase levels of trust by explaining their medical role and their duty of confidentiality, the purpose of the medical examination, and the fact that they are not involved in the process of detention or criminal investigation. On the other hand, as in the present case, an element of fear having a political background can play an important role.

217. In the present case, the Court notes that the applicant was extremely cautious and refused, on a regular basis, to allow most of the medical procedures that were suggested to her. She explained this by reference to her particular political status and inherent lack of confidence in the authorities. She referred in this connection to the allegedly unfortunate experiences of others who had either contracted a disease or had died in detention. In this respect, the Court reiterates its previous finding that patients, such as the applicant, have the responsibility to communicate and cooperate with health authorities. The crucial issue here is whether such an attitude on her part could be regarded as justified and whether the State still did everything that could have been reasonably expected from them to ensure the applicant’s well-being. The Court underlines in this connection that it is noteworthy that there is no specific incident noted in the applicant’s medical history while in detention in Kyiv SIZO no. 13 or Kachanivska Colony in Kharkiv which could have explained such a total lack of confidence in the authorities.

218. The Court attributes particular weight to the fact that the prison administration – despite the protracted length of time taken to comply with the interim measure ordered by the Court on 15 March 2012 and certain steps undertaken by the national authorities which did not show their willingness to meet the terms of the measure (see paragraphs 122-123 and 131 above) – transferred the applicant to the Central Clinical Hospital on 20 April 2012 (see paragraph 133 above) and then again on 9 May 2012 in order for her to undergo appropriate medical treatment under the supervision of the German neurologist from the Charité Hospital in Berlin (see paragraph 164 above). The applicant was seen by specialists, her complaints were heard and she was subjected to appropriate specialised medical procedures.

219. To sum up, the Court considers that the Government provided sufficient evidence to enable it to conclude that the domestic authorities afforded the applicant comprehensive, effective and transparent medical assistance. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 § 3 (a) and 4 of the Convention.

IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ILL-TREATMENT OF THE APPLICANT DURING HER TRANSFER TO THE CENTRAL CLINICAL HOSPITAL ON 20 APRIL 2012

220. The applicant complained that she had been transferred to the Central Clinical Hospital against her will and that she had sustained injuries during the transfer. She also alleged that the incident had not been properly investigated.

221. The Government contested that argument.

A. Admissibility

222. The Government submitted that the applicant could not be regarded as having exhausted domestic remedies in respect of her complaint of ill-treatment during her transfer to the hospital on 20 April 2012. They pointed out that she had failed to challenge the prosecutor’s decision of 3 May 2012 refusing to open a criminal case regarding the aforementioned complaint.

223. The Court recalls that it dealt with a similar objection in the case of Kaverzin v. Ukraine, (no. 23893/03, 15 May 2012), and concluded that the remedy indicated by the Government had not been shown to be capable of providing adequate redress in respect of complaints of ill-treatment by the police and ineffective investigations (ibid., §§ 93-98). The Court does not find any reason to hold otherwise in the present case and notes that the applicant was not obliged to use the appeal procedure in question.

224. Accordingly, the Government’s objection must be dismissed. The Court also finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

225. The Government contended that the applicant’s complaint of ill‑treatment during her transfer from the colony to the hospital was unsubstantiated, as there was no evidence that the bruises on the applicant’s body had been the consequence of the force used on her by the prison guards or that the State authorities had otherwise been responsible for the injuries sustained by the applicant.

226. As to the investigation of the ill-treatment allegation, the Government submitted that the domestic authorities had taken all reasonable efforts to establish the truth. Their conclusion that the applicant’s complaint was unsubstantiated had not undermined the effectiveness of the investigation. The Government referred, inter alia, to the statements of members of staff who had been present in the colony on the relevant day and at the material time. In particular, three guards from the colony’s surveillance and security department had confirmed that department no. 1 of the colony, where the applicant’s cell had been situated, had been equipped with video cameras working in real-time mode but without a recording function. During surveillance of the applicant’s cell through the monitor on 20 April 2012, one of the guards had not seen the members of the colony’s staff who had visited the applicant to use physical violence against her, and he had not heard any noises either. Once the staff members had left the cell, the guard had seen on the screen that the applicant had taken a shower, had gathered her belongings together and had got into bed. In the course of their surveillance, the guards had not noticed that the applicant had sustained any bodily injuries.

227. The applicant maintains her original allegations.

2. General principles

(a) Alleged ill-treatment

228. The Court has stated on many occasions that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman and degrading treatment or punishment, irrespective of the victim’s conduct (see, among many other authorities, Labita, cited above, § 119, and Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V).

229. The Court further reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita, cited above, § 121).

230. Where an individual claims to have been injured as a result of ill‑treatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336).

231. In relation to detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006-XV (extracts); Sarban, cited above, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006, and Ribitsch, cited above, § 38). The burden of proof rests on the Government to demonstrate with convincing arguments that the use of force which resulted in the applicant’s injuries was not excessive (see, e.g., Dzwonkowski v. Poland, no. 46702/99, § 51, 12 April 2007).

(b) Adequacy of the investigation

232. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998‑VIII).

233. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II; and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000‑III).

234. An investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‑founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness statements and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 104 et seq., ECHR 1999‑IV; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.

3. Application of the principles to the present case

235. The Court notes that it is established that several bruises appeared on the applicant’s body during her detention in the colony. This alone calls for an explanation by the State authorities as to their origin. It recalls in this respect that a failure to provide a plausible explanation for the injuries would run counter to the State’s duty to account for the well-being of a detainee under its full control.

236. It observes that on 23 April 2012 the applicant filed a complaint with the Kharkiv Regional Prosecutor’s Office complaining of her forced transfer to the hospital and of ill-treatment during the course of the transfer on 20 April 2012 (see paragraph 137 above). She was first examined on 24 April 2012, when she showed her bruises to the colony medical officers (see paragraph 140 above). According to the examination report, minor bodily injuries in the form of bruises were found to have resulted from a compressive blow by or contact with a blunt object one or two days prior to the applicant’s examination. The report established that the apparent age of the bruises did not, however, coincide with the time of the ill-treatment indicated by the applicant. The Court further observes that on the same date a forensic medical expert was invited to examine the applicant but that she refused to allow such an examination (see paragraph 141 above).

237. Later on the same day the head of the investigative department of the Kharkiv Regional Prosecutor’s Office, having closed the one day investigation of the event, refused to institute criminal proceedings against colony staff in the absence of evidence that they had caused her bodily injuries (see paragraph 142 above). Following the quashing of that decision on 25 April 2012, further investigation was ordered (see paragraph 143 above). According to the Government, evidence was collected by the investigator from the members of colony staff involved, the medical workers and the ambulance driver who had been on duty on 20 April 2012, members of the medical panel, hospital employees and other individuals who had witnessed the transfer of the applicant to the hospital and who stated that the applicant had not complained of the infliction of any injuries on her and that they had seen no signs of injuries on her (see paragraphs 150-161 above).

238. The Government further relied on the fact that the video surveillance of the applicant on 20 April 2012 had revealed nothing out of the ordinary. However, the Court notes that according to the Government’s submissions the video surveillance, at least on 20 April 2012, operated without any recording of the images being made (see paragraph 154 above), with the consequence that the Court is not able to verify the accuracy of the Government’s assertion.

239. The Court further notes that, as part of the investigation, on 26 April 2012 the applicant was once again invited to undergo a forensic medical examination to establish the origin and age of the bruising, but refused to do so. As a result of the refusal, the head of Kharkiv Medical Academy’s department of forensic medicine was assigned to evaluate the applicant’s injuries solely on the basis of the medical report of 24 April 2012. It was his conclusion that the state of the haematomas and their appearance one or two days before the applicant’s examination were such that the injuries could not have been inflicted on 20 April 2012. In addition, having familiarised himself with the applicant’s medical file, he noted that recurrent haematomas had appeared from time to time on the applicant’s body since 16 August 2011 which had not resulted from external blows and could have resulted from a condition linked to the applicant’s vascular and circulatory systems (see paragraph 146 above). On 3 May 2012 the investigator once again refused to institute criminal proceedings (see paragraph 149 above).

240. The Court adds that the location of the applicant’s bruises would appear consistent with the applicant’s account that she was violently pulled from her bed and punched in the stomach on 20 April 2012. Nevertheless, the Court cannot ignore the medical evidence before it that the apparent age of the bruising found upon examination of the applicant did not correspond with the time she indicated and that there were other possible origins of the bruising which did not involve external trauma. These findings could only have been satisfactorily confirmed or refuted if the applicant had undergone a full forensic medical examination, which the applicant refused to allow on two occasions. In the absence of such forensic evidence resulting from the applicant’s decision not to undergo the examination, the Court cannot find it established to the necessary standard of proof that the bruising resulted from her treatment on being transferred to hospital on 20 April 2012 in breach of Article 3 of the Convention.

241. Since the applicant made an arguable complaint of ill-treatment before the domestic authorities, a procedural obligation under Article 3 of the Convention arose to carry out an effective investigation of the facts alleged. However, as the Court has stated above, the effectiveness of the investigation was hindered by the applicant’s failure to cooperate with the authorities through her persistent refusals to undergo a forensic medical examination, which could have confirmed or rebutted the findings as to the date and cause of the bruising sustained by her.

242. The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the applicant’s complaint of ill‑treatment during her transfer to the Central Clinical Hospital was “effective”. There has therefore been no violation of Article 3 of the Convention under its procedural limb.

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

243. The applicant alleged that she had been under round-the-clock surveillance in the hospital and that the prison authorities had published a full report of her medical history in the Ukrainian media. She relied on Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

244. The Government claimed that the applicant should have challenged the refusal of 1 June 2012 by the Kharkiv Regional Prosecutor’s Office to take measures in respect of her allegations about her permanent surveillance in hospital and about the publication of her medical report before a higher-ranking prosecutor or a competent court. She could also have challenged the same acts directly before the administrative courts.

245. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus a complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni, cited above, § 74).

246. First, the Court has already noted in respect of the applicant’s complaint under Article 3 of the Convention that the judicial remedy against the prosecutor’s decision is not effective within the meaning of Article 35 § 3 of the Convention (see paragraph 223 above) and considers that the same conclusion is applicable in respect of the present claim raised under Article 8 of the Convention. Secondly, the Court considers that the Code of Administrative Justice, which entered into force on 1 September 2005, the domestic courts thus having had the opportunity to develop its interpretation for over seven years, may be considered as providing a prima facie effective remedy for the kind of allegations that were made by the applicant. There are no detailed procedures envisaged for raising this particular type of complaint before the domestic courts and the Government failed to quote any examples of judicial practice. However, the question fell within the scope of paragraph 1 of Article 17 of the Code of Administrative Justice (see paragraph 181 above) which defines the jurisdiction of the administrative courts, and there is no suggestion that the dispute in the present case was excluded by paragraph 2 of that provision.

247. The Court notes that the applicant in the present case used the path offered to her by the Code of Administrative Justice. It is true that she was not successful as the Kyiv Administrative District Court dismissed her administrative action (see paragraphs 173-174 above). The Court notes, however, that the first instance judgment is open to appeal and, eventually, to appeal on points of law. The Court further notes that the applicant did not apply for an interim measure as provided for in Article 117 of the Code of Administrative Justice (see paragraph 181 above).

248. Accordingly, the applicant’s complaints under Article 8 of the Convention must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

VI. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

249. Relying on Article 5 § 1 (b) of the Convention, the applicant complained that her pre-trial detention had been unlawful and arbitrary. She also complained under Article 5 § 3 that there were no reasons for her continued detention. The applicant further complained under Article 5 § 4 that she had not been able to effectively challenge the lawfulness of her pre-trial detention. Lastly, she complained that she had not had an effective and enforceable right to compensation for her detention in contravention of the aforementioned provisions.

250. The relevant provisions of Article 5 of the Convention read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

… (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Admissibility

251. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 5 § 1 of the Convention

(a) The parties’ submissions

252. The applicant maintained that her detention had been arbitrary and inconsistent with the purposes of Article 5 § 1 of the Convention.

253. She referred, in particular, to the Court’s judgment in the case of Kharchenko v. Ukraine (no. 40107/02, 10 February 2011), according to which pre-trial detention for an unspecified period of time, despite being in accordance with national legislation, contradicted the Court’s interpretation of Article 5 § 1.

254. The applicant further submitted that there had been no evidence that there was a risk of her absconding revealed in either the domestic proceedings or those before this Court. She pointed out that, on the contrary, she had always complied with the investigator’s orders and judicial summonses and had unfailingly appeared for all investigative activities and hearings.

255. She next argued that there had been no risk of her pursuing the illegal activities she was charged with, given that the charges against her concerned her functioning in the capacity of the Prime Minister, a role which had ceased long before the institution of the criminal proceedings in question.

256. The applicant also pointed out that the domestic courts had at no stage considered the possibility of using any less intrusive preventive measure as an alternative to her detention.

257. The Government submitted that the applicant’s pre-trial detention had been ordered and subsequently extended by judicial decisions taken in accordance with national legislation. It had therefore complied with the requirements of Article 5 § 1 (c) of the Convention.

258. They expressed the view that the national court had advanced relevant and sufficient reasons justifying that preventive measure, which had been based on the specific facts of the case and the documents in the case file. They noted, in particular, that the court had referred to the risk of her absconding or hindering the investigation as the reasons for the applicant’s detention. It had discerned corroboration of the existence of those risks in the applicant’s refusals to inform the court about her place of residence, under the pretext that that information was in the case file. Furthermore, the court had noted that its letters previously sent to the applicant’s address as indicated by her had been returned to it by the post office. In addition, in the course of the court hearing on 5 August 2011 the applicant had refused to give a signed statement indicating that she had been informed of the date, time and venue of the following court hearing. Lastly, she had been late for the hearing on 5 August 2011 without any valid reason.

259. The Government next pointed out that the applicant had been suspected of a serious crime and had failed to show respect for the court and the trial participants by ignoring the instructions of the presiding judge and obstructing the questioning of witnesses.

260. The Government also emphasised that, before ordering the applicant’s detention, the court had duly examined her and her lawyer’s arguments against that preventive measure.

261. They also noted that the overall period of her pre-trial detention had been relatively short.

(b) The Court’s assessment

(i) General principles

262. The Court emphasises that Article 5 of the Convention enshrines a fundamental human right, namely, the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). The list of exceptions to this right secured in Article 5 § 1 is an exhaustive one and only their narrow interpretation is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Labita, cited above, § 170).

263. In assessing the lawfulness of any deprivation of liberty, the Court is not confined to the declared, ostensible purposes of the arrest or detention in question, but also looks at the real intent and purposes behind it (see Bozano v. France, 18 December 1986, § 60, Series A no. 111, and Khodorkovskiy v. Russia, no. 5829/04, § 142, 31 May 2011).

264. The Court has also held in its case-law that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail (see, among other authorities, Medvedyev and Others v. France [GC], no. 3394/03, § 80, ECHR 2010, with further references).

265. Furthermore, in order for deprivation of liberty to be considered free from arbitrariness within the meaning of Article 5 § 1 of the Convention, it does not suffice that the measure be executed in conformity with national law meeting the aforementioned standards; it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007, and Khayredinov v. Ukraine, no. 38717/04, §§ 27-28, 14 October 2010).

266. Lastly, the Court emphasises that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004, and Castravet v. Moldova, no. 23393/05, § 33, 13 March 2007).

(ii) Application of the principles to the present case

267. The Court notes that the applicant’s detention was ordered for an indefinite period of time, which in itself runs contrary to the lawfulness requirement enshrined in Article 5 of the Convention (see, e.g., Yeloyev v. Ukraine, no. 17283/02, §§ 52-55, 6 November 2008; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, § 59, 27 November 2008; and Doronin v. Ukraine, no. 16505/02, § 59, 19 February 2009). Moreover, the Court has concluded that this has been a recurrent issue in the case-law against Ukraine stemming from legislative lacunae (see Kharchenko, cited above, § 98).

268. The Court considers that the present case discloses a number of other serious issues as regards the lawfulness of the applicant’s pre-trial detention which merit further examination.

269. It observes that the detention order of 5 August 2011 did not refer to any breaches by the applicant of the obligation not to leave town which had been applied to her as a preventive measure for the four preceding months. While noting that she had refused to sign the notices informing her of scheduled hearings, the judge did not assert that she had been absent from any of those hearings. The same holds true regarding the supposed failure of the post office to deliver some of the court’s letters to her: it was not contended that this had prevented her from complying with her procedural obligations. Neither did the applicant’s refusal to announce her address at the hearing appear to have had any negative impact on her participation in the proceedings as required, given that her address was already in the case file. As to her being a few minutes late for the hearing on 5 August 2011, there were no reasons to regard this as a lack of cooperation on her part. Accordingly, no risk of the applicant’s absconding is discernable from the accusations against her which were advanced among the reasons for her detention.

270. As transpires from the detention order, as well as the prosecutor’s application for this measure and its factual context, the main justification for the applicant’s detention was her supposed hindering of the proceedings and contemptuous behaviour. This reason is not included in those which would justify deprivation of liberty under Article 5 § 1 (c) of the Convention. Moreover, it remains unclear for the Court how the replacement of the applicant’s obligation not to leave town by her detention was a more appropriate preventive measure in the circumstances.

271. Given that the reasons for, and therefore the purpose of, the applicant’s pre-trial detention remained the same until her conviction, the Court considers that its entire period was arbitrary and unlawful.

272. It follows that there has been a violation of Article 5 § 1 of the Convention in this respect.

2. Article 5 § 4 of the Convention

(a) The parties’ submissions

273. The applicant contended that she had not had a legal remedy with which to challenge the detention order of 5 August 2011. Moreover, all her requests for release had been dismissed in a formalistic manner, without any regard to her arguments.

274. The Government contended that even though the detention order of 5 August 2011 had indeed not been amenable to appeal, the initial judicial review of the lawfulness of her detention had already been incorporated in that decision.

275. They further submitted that the lawfulness of the applicant’s pre-trial detention had been repeatedly reviewed by the competent court on the basis of her and her lawyer’s requests for release. The Government maintained that each of those requests, and the arguments contained therein, had been scrutinised by the court in a separate procedural decision. The Pecherskyy Court had continuously upheld the preventive measure applied to the applicant on account of the persistence of the reasons mentioned in its initial detention order of 5 August 2011. In particular, the court had noted that there were no reasons for the change of preventive measure sought. The Government emphasised in this connection that the justification of the whole period of the applicant’s detention by the same reasons could not be regarded as contravening her rights under Article 5 of the Convention.

(b) The Court’s assessment

276. The Court reiterates that Article 5 § 4 of the Convention entitles arrested or detained persons to a review of the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of the deprivation of their liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002-II, and Solovey and Zozulya, cited above, § 70).

277. The Court has held that a further function of a reasoned decision is to demonstrate to the parties that they have been heard. While Article 5 of the Convention does not impose an obligation on a judge reviewing a person’s detention to address every argument contained in the appellant’s submissions, its guarantees would be deprived of their substance if the judge, relying on domestic law and practice, could treat as irrelevant, or disregard, concrete facts relied upon by the detainee which would be capable of casting doubt on the “lawfulness” of the deprivation of liberty (see Ignatenco v. Moldova, no. 36988/07, §§ 77-78, 8 February 2011, with further references).

278. The Court notes that in the present case the lawfulness of the applicant’s detention was reviewed by the domestic courts on several occasions. However, the relevant court decisions do not satisfy the requirements of Article 5 § 4, being confined in their reasoning to mere statement that no appeal lay against a ruling on change of a preventive measure delivered during the judicial examination of a case, reiterating the initially applied – and, as noted above, deficient – reasoning (see paragraphs 31-32 and 35-36 above).

279. The Court observes that in her numerous applications for release the applicant advanced specific and pertinent arguments in favour of her release, such as her unfailing compliance with the obligation not to leave town before her remand in custody and the fact that she had made no attempt to abscond or obstruct the investigation. Furthermore, many respected public figures submitted letters of personal guarantee seeking her release. In addition, a proposal of bail was made. However, the court dismissed all those requests without any indication of consideration having been given to any of these arguments, apparently treating them as irrelevant to the question of the lawfulness of the applicant’s pre-trial detention (see paragraphs 34-35 above).

280. The Court therefore concludes that the scope and nature of the judicial review afforded to the applicant by the Pecherskyy Court did not satisfy the requirements of Article 5 § 4 of the Convention.

281. The Court has already found that on the whole the domestic law does not provide for the procedure of review of the lawfulness of continued detention after the completion of pre-trial investigations satisfying the requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine, no. 2161/02, § 297).

282. There has therefore been a violation of Article 5 § 4 of the Convention.

3. Article 5 § 5 of the Convention

(a) The parties’ submissions

283. The applicant contended that she had not had an enforceable right to compensation in respect of the alleged breaches of Article 5.

284. The Government submitted that the applicant would have the right to redress in respect of her detention if it were found to be unlawful by the domestic courts.

(b) The Court’s assessment

285. The Court notes that the right to compensation under Article 5 § 5 of the Convention arises only if a breach of one of its other four paragraphs – Article 5 §§ 1 (a) and 4 of the Convention in the present case – has been established, directly or in substance, by the Court or by the domestic courts (see, for example, Svetoslav Dimitrov v. Bulgaria, no. 55861/00, § 76, 7 February 2008, and Çağdaş Şahin v. Turkey, no. 28137/02, § 34, 11 April 2006). In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, 17 January 2012, with further references).

286. The Court notes that the issue of compensation for unlawful detention in Ukraine is regulated by the State Compensation Act (see paragraph 182 above). The right to compensation arises, in particular, where the unlawfulness of the detention has been established by a judicial decision. There is no procedure in Ukrainian law for bringing proceedings to seek compensation for a deprivation of liberty found to be in breach of one of the other paragraphs of Article 5 by this Court.

287. The Court has already noted this lacuna in its case-law in other cases against Ukraine (see, e.g., Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 233, 21 April 2011). It remains pertinent in the present case.

288. It follows that there has been a violation of Article 5 § 5 of the Convention.

VII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5

289. The applicant complained that her detention had had ulterior motives. She complained, in particular, that her detention had been used by the authorities to exclude her from political life and to prevent her standing in the parliamentary elections of 28 October 2012. She relied on Article 18 of the Convention taken in conjunction with Article 5, which provides as follows:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

A. Admissibility

290. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

291. The applicant emphasised that she was the strongest opposition leader. She maintained that the real purpose of her detention had been to preclude her from standing in the parliamentary elections in Ukraine held on 28 October 2012 and to remove her from the political arena altogether. She referred in this connection to numerous reports of domestic and international observers concerning the prosecution of members of the opposition by those in power in Ukraine. The applicant further noted a number of other criminal cases which had been instituted against her, allegedly without reason. Lastly, in the context of her other complaints and submissions before the Court, she expressed doubt as to the competence and good faith of Judge K., who had been dealing with her case in the first-instance court and who had ordered her detention as a preventive measure pending trial. According to her, by having resorted to this measure, Judge K. had punished her for nothing more than her lack of respect towards him, whereas she did not consider that any such respect had been due.

292. The Government noted that the applicant had occupied the post of Prime Minister of Ukraine for a long period of time and that she remained the leader of an opposition party enjoying widespread support among the population. Therefore, her activities, as well as any events with her involvement, had always attracted attention and had been the focus of discussions, both in the media and in Ukrainian and foreign official circles. Nonetheless, the Government emphasised the political character of those discussions, which were to be distinguished from judicial proceedings. They referred in this connection to the court’s finding in the case of Khodorkovskiy (cited above, § 259) that the “political process and adjudicative process are fundamentally different”. Accordingly, they contended that the public significance of the applicant’s criminal prosecution and detention could not be regarded as proof of prejudice against her.

293. The Government also expressed the view that, apart from the applicant’s reference to her intensive political activity, she had failed to provide any evidence in substantiation of her allegation that she had been deprived of her liberty for purposes other than those prescribed by Article 5 of the Convention. Lastly, the Government contended that the applicant’s detention had been determined solely by her behaviour in the course of the consideration of her case by the court, that it had pursued a legitimate aim and that it had complied with the requirements laid down in Article 5 § 1 (c) of the Convention.

2. The Court’s assessment

294. The Court emphasises that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention (see Gusinskiy v. Russia, no. 70726/01, § 75, 19 May 2004). As it has previously held in its case-law, the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable. However, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed or which could be reasonably inferred from the context. A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached (see Khodorkovskiy, cited above, § 255).

295. When an allegation under Article 18 of the Convention is made, the Court applies a very exacting standard of proof. As a consequence, there are only a few cases where a breach of that Convention provision has been found. Thus, in Gusinsky (cited above, §§ 73-78), the Court accepted that the applicant’s liberty had been restricted, inter alia, for a purpose other than those mentioned in Article 5. It based its findings on an agreement signed between the detainee and a federal Minister for the Press, from which it was clear that the applicant’s detention had been applied in order to make him sell his media company to the State. In Cebotari v. Moldova (no. 35615/16, §§ 46 et seq., 13 November 2007) the Court found a violation of Article 18 of the Convention in circumstances where the applicant’s arrest was visibly linked to an application pending before the Court. However, such cases remain rare (see, a contrario, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 129, ECHR 2007-II, and Khodorkovskiy, cited above, § 261).

296. Turning to the present case, the Court notes the overall similarity of its circumstances to those examined in the case of Lutsenko v. Ukraine (no. 6492/11, § 104, 3 July 2012). Like in the cited case, soon after the change of power, the applicant, who was the former Prime Minister and the leader of the strongest opposition party, was accused of abuse of power and prosecuted. Many national and international observers, including various non-governmental organisations, media outlets, those in diplomatic circles and individual public figures, considered these events to be part of the politically motivated prosecution of opposition leaders in Ukraine.

297. As to the applicant’s complaints under Article 18 of the Convention in the present case, the Court notes that they are twofold: taken in conjunction with Article 5 as regards the actual purpose of her pre-trial detention; and taken in conjunction with Article 6 as regards the fairness of the applicant’s criminal prosecution and its allegedly ulterior motives[2]. Accordingly, the Court will confine its examination here to the applicant’s complaint under Article 18 taken in conjunction with Article 5 concerning her pre-trial detention.

298. As the Court held in the case of Lutsenko, cited above, when it comes to allegations of political or other ulterior motives in the context of criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention has been ordered (§ 108). However, like in the cited case, the Court discerns a number of specific features of the applicant’s pre-trial detention which allow it to look into the matter separately from the more general context of the allegedly politically motivated prosecution of the applicant as an opposition leader by instigating several criminal charges after the change of power and before the Parliamentary elections.

299. The Court has already established that, although the applicant’s detention was formally effected for the purposes envisaged by Article 5 § 1 (c) of the Convention, both the factual context and the reasoning advanced by the authorities (see paragraphs 269-270 above) suggest that the actual purpose of this measure was to punish the applicant for a lack of respect towards the court which it was claimed she had been manifesting by her behaviour during the proceedings.

300. In the light of these considerations and using a similar approach to the one which it has applied to the legal interpretation of the comparable circumstances in the Lutsenko case, the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5 § 1 (c) was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.

301. The Court considers this sufficient basis for finding a violation of Article 18 of the Convention taken in conjunction with Article 5.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

302. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

303. The applicant did not submit any claims in respect of damage or costs and expenses.

304. Accordingly, no award is made under those heads.

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaint under Article 3 of the Convention concerning the applicant’s alleged ill-treatment during her transfer to the hospital on 20 April 2012 and its investigation, as well as the complaints under Articles 5 and 18 of the Convention, admissible and the remainder of the application inadmissible;

2. Holds by 4 votes to 3 that there has been no violation of Article 3 of the Convention in respect of the applicant’s complaint concerning her alleged ill-treatment during her transfer to the hospital on 20 April 2012 and the effectiveness of the domestic investigation;

3. Holds unanimously that there has been a violation of Article 5 § 1 of the Convention;

4. Holds unanimously that there has been a violation of Article 5 § 4 of the Convention;

5. Holds unanimously that there has been a violation of Article 5 § 5 of the Convention;

6. Holds unanimously that there has been a violation of Article 18 of the Convention taken together with Article 5 of the Convention.

Done in English, and delivered at a public hearing on 30 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips              Dean Spielmann               Deputy Registrar              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint concurring opinion of Judges Jungwiert, Nußberger and Potocki;

(b) joint dissenting of Judges Spielmann, Villiger and Nußberger.

D.S. J.S.P.

JOINT CONCURRING OPINION OF JUDGES JUNGWIERT, NUSSBERGER AND POTOCKI

We agree that there has been a violation of Article 18 read in conjunction with Article 5 of the Convention in this case. However, we consider that the reasoning of the majority does not address the applicant’s main complaint, which concerns the link between human rights violations and democracy, namely that her detention has been used by the authorities to exclude her from political life and to prevent her standing in the parliamentary elections of 28 October 2012 (see paragraph 289).

The entire philosophy of the Convention rests on the assumption that public authorities in the member States act in good faith. Any public policy or individual measure may, however, have a “hidden agenda” and serve other purposes than those officially declared. This is especially disturbing if penal law is used for purposes other than bringing to justice those who have committed a crime or a wrongful act. In such cases, finding (only) violations of those human rights guaranteed under Article 5 and Article 6 of the Convention would not be sufficient, as this would not uncover and target the real problem, namely the intentional misuse of State power.

An applicant’s allegation of a violation of Article 18 of the Convention must therefore be taken very seriously. At the same time, a mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention cannot be sufficient to prove that Article 18 was breached. Thus, the Court rightly applies a very exacting standard of proof (see Khodorkovskiy, cited above, §§ 255-256). This requirement must not, however, be such as to render it impossible for the applicant to prove a violation of Article 18. Concerning the assessment of evidence in respect of a violation of Article 18, several factors have to be taken into account.

First, the wording of Article 18 contains the word “purpose”, which necessarily refers to a subjective intention which can be revealed only by the person or persons holding it, unless it is – accidentally – documented in some way (compare, for example, the case of Gusinskiy, cited above, §§ 73‑78, in which the authorities’ intention was clear from an agreement signed between the detainee and a federal Minister for Press and Mass Communications). Generally, knowledge about what the Court calls a “hidden agenda” is within the sphere of the authorities and is thus not accessible to an applicant. It is therefore necessary to accept evidence of the authorities’ improper motives which relies on inferences drawn from the concrete circumstances and the context of the case. Otherwise the protection granted by Article 18 would be ineffective in practice.

Second, when relying on the circumstances and the context of a case the Court must nevertheless not apply double standards and accept more easily a violation of Article 18 in conjunction with Article 5 or 6 in the case of applicants holding specific prominent positions in society. As the Court stated in the case of Khodorkovskiy v. Russia, “high political status does not grant immunity” (see Khodorkovskiy, cited above, § 258). At the same time, in interpreting Article 18 of the Convention the direct link between human rights protection and democracy must be taken into account. If the human rights of politically active persons are restricted for the purpose of hindering or making impossible their participation in the political life of a country, democracy is in danger.

Third, Article 18 refers to the “restrictions permitted under this Convention to the said rights and freedoms”. Under this explicit wording, therefore, this provision not only prohibits “misus[ing] the whole legal machinery of the respondent State ab initio” and “act[ing] with bad faith and in blatant disregard of the Convention from the beginning to the end” (see Khodorkovskiy, cited above, § 260), but also prohibits the use of specific restrictive measures such as pre-trial detention for improper purposes (see Lutsenko, cited above, § 109).

Fourth, it is true that the political process and adjudicative process are fundamentally different. In establishing that the authorities had improper motives in restricting a politician’s human rights, the Court cannot accept as evidence the opinions and resolutions of political institutions or NGOs, or statements by other public figures (see Khodorkovskiy, cited above, § 259). It must base its finding of a violation of Article 18 of the Convention only on the concrete facts of the case.

Fifth, the Court has held that the burden of proof should rest with the applicant even where a prima facie case of improper motive is established (see Khodorkovskiy, cited above § 256). Nevertheless, that cannot mean that in cases where the authorities cannot advance any “proper motive” it would not be possible to consider an “improper motive” to be proven.

In the light of these considerations we hold that in the present case there was a violation of Article 18 not only – as the majority has held – because pre-trial detention was ordered to punish the applicant for a lack of respect towards the court (see paragraph 299), but for ulterior motives.

We take as a starting-point that the Court in the present case found that the reasons given by the trial court for the applicant’s pre-trial detention were not compatible with the requirements of Article 5 § 1 of the Convention. This means that the detention of the applicant on 5 August 2011 for an unlimited period of time was arbitrary under the Convention.

The decisive question is therefore whether, despite its arbitrariness, the detention was nevertheless ordered in good faith or whether the real aim of the authorities in seeking and imposing such a measure was different from that stated and was motivated by an ulterior intention which can be proven according to the standards required by the Convention. In order to answer this question the Court has to situate the restrictions on the applicant’s rights, especially the ordering of indefinite pre-trial detention on 5 August 2011, in the broader context and to take into account such factors as the point in time when it was ordered, the status of the applicant, and the way in which the authorities acted.

In this context, we consider that it is not possible to dissociate entirely this issue from the nature of the criminal proceedings brought against the applicant, although the Court’s examination of the complaint under Article 18 of the Convention in the present case does not relate to the trial as such[3]. In our view, the decision to detain the applicant must be seen in the broader context of those proceedings and of the position and status of the applicant herself at the time the proceedings were initiated. Only one year before her arrest the applicant was the main political opponent of the current President of Ukraine and obtained 45.47% of the popular vote (see paragraph 12). Even more importantly, the applicant’s party had made clear its intention to participate, with the applicant as its leader, in the parliamentary elections which were to take place in October 2012 – in other words, within a time-frame that made it necessary to start preparations for the election campaign at the time of the applicant’s pre-trial detention.

We further note that the charges brought against the applicant in the present case do not concern offences of corruption or fraud or offences in which it was alleged that she had sought to make personal financial gain. On the contrary, the abuse of power with which she was charged related exclusively to the circumstances of the political decision, taken by her as Prime Minister of Ukraine, to sign an international gas agreement on terms which were subsequently claimed to have been unfavourable to the country.

Moreover, it is necessary to take into account the manner in which the investigation was conducted. Although it is well-known that criminal investigations in Ukraine often last for many years, in the extremely complex case involving the applicant they were conducted with remarkable speed, namely between 11 April 2011 and 25 May 2011, that is, within less than six weeks. Of even greater significance is the fact that the investigations were conducted in such a way that the applicant was completely hindered from continuing her political activity. Thus, she was given fifteen working days to read a case file which comprised more than 4,000 pages and was called almost daily to attend the GPO’s premises for questioning (see paragraph 15); after the trial started hearings were held on an almost daily basis (see paragraph 27).

It should also be noted that criminal charges were brought not only against the applicant, but also against more than eight high-level members of her Government, for abuse of office and/or misuse of State funds during their tenure. The Government’s allegation that the prosecutions did not target the opposition and that there were many ongoing investigations of members of the governing party was proven not to be true as, with only a few exceptions, the latter concerned only low-level career officials (see paragraph 187). In the case of the former Minister of the Interior Lutsenko, the Court has already found violations of Articles 5 § 1, 5 § 2, 5 § 3, 5 § 4 and Article 5 in conjunction with Article 18 of the Convention (Lutsenko v. Ukraine, cited above); other cases are pending.

The detention order against the applicant, which was made on 5 August 2011 after 16 hearings, did not refer to any breaches by the applicant of the obligation not to leave town, a measure with which she had fully complied. Nor was it suggested that she had been absent from any of the court hearings. The fact that the applicant had on one occasion been a few minutes late for a hearing and that she had failed to state her address, which was already in the court file, did not provide arguable grounds for finding a lack of cooperation on her part, thus justifying her indefinite pre-trial detention.

Taking into account the lack of any acceptable reason for ordering indefinite pre-trial detention and these very particular circumstances of the case, we consider it as proven on the basis of the standard required by Article 18 of the Convention that the reasons given for seeking and issuing a detention order against the applicant were not only insufficient in terms of Article 5 § 1 of the Convention but were not the only reasons, and that there were other ulterior motives underlying the action of the relevant authorities which were not related to the proper conduct of the criminal proceedings per se, but rather to the applicant’s identity and influence as a leading opposition politician in Ukraine.

These are our reasons for concluding that there has been a violation of Article 18 of the Convention, read in conjunction with Article 5 § 1 of the Convention, in respect of the applicant’s pre-trial detention.
JOINT DISSENTING OPINION OF JUDGES SPIELMANN, VILLIGER AND NUSSBERGER

We are unable to agree with the Court’s finding that there has been no violation of Article 3 of the Convention on account of the ill-treatment of the applicant during her transfer to the Central Clinical Hospital of 20 April 2012.

The applicant’s complaints concern both the substantive and procedural aspects of Article 3 of the Convention. As regards the former aspect, we note that it is common ground between the parties that the injuries complained of, in particular the bruises on the applicant’s body, appeared after the applicant’s involuntary transfer to the hospital. Thus, the applicant’s complaint of ill-treatment during her transfer to the hospital, which she duly raised at the domestic level, was prima facie arguable and, given the Court’s settled case-law on the matter, the authorities were required to conduct an effective official investigation.

We recall that the Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. Therefore, we consider it appropriate to examine first whether the applicant’s complaint was adequately investigated by the authorities and subsequently to turn to the question of whether the alleged ill-treatment took place, regard being had to the relevant domestic findings.

We reiterate that Article 3 of the Convention requires that an investigation into arguable allegations of ill-treatment must be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions in order to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to obtain evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu, cited above, §§ 104 et seq., and Gül, cited above, § 89).

The investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102, and Labita, cited above, § 131).

We further recall that for an investigation into torture or ill-treatment by agents of the State to be regarded as effective, the general rule is that the persons responsible for making inquiries and those conducting the investigation should be independent hierarchically and institutionally of anyone implicated in the events, in other words that the investigations should be independent in practice (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 135, ECHR 2004-IV (extracts)).

On 23 April 2012 the applicant filed a complaint with the Kharkiv Regional Prosecutor’s Office complaining of her forced transfer to the hospital and of ill-treatment during the course of the transfer on 20 April 2012. She was first examined on 24 April 2012, when she showed her bruises to the colony medical officers despite the fact that she had already asked for a medical examination on the previous day. According to the examination report, minor bodily injuries in the form of bruises were found to have resulted from a compressive blow by or contact with a blunt object one or two days prior to the applicant’s examination. The report established that the apparent age of the bruises did not, however, coincide with the time of the ill-treatment indicated by the applicant. Moreover, on the same date a forensic medical expert was invited to examine the applicant but she refused to allow such an examination.

Later on the same date the head of the investigative department of the Kharkiv Regional Prosecutor’s Office, having closed the one-day investigation of the event, refused to institute criminal proceedings against colony staff in the absence of evidence that they had caused her bodily injuries. Following the quashing of that decision on 25 April 2012, a further investigation was ordered.

On 3 May 2012 the investigator at the prosecutor’s office again refused to institute criminal proceedings against any member of the colony staff, in the absence of any indication of criminal conduct on their part. In his decision, reliance was placed on the refusal of the applicant to undergo a forensic medical examination on two occasions, on 24 and 26 April. According to the Government, evidence had been collected by the investigator from the members of colony staff involved, the medical workers and the ambulance driver who had been on duty on 20 April 2012, members of the medical panel, hospital employees and other individuals who had witnessed the transfer of the applicant to the hospital and who stated that the applicant had not complained of the infliction of any injuries on her and that they had seen no signs of injuries on her.

We note however that it does not appear from the material in the file that any explanation was sought by the investigator as to why the transfer of the applicant had been carried out in a hasty manner very late in the evening since there was nothing in the applicant’s previous medical records to suggest that her health condition necessitated an urgent transfer which could not wait until the next morning. Moreover, the investigator does not appear to have questioned why the applicant’s co-inmate has been removed from the cell at around 9 pm on 20 April 2012 (see paragraph 160), i.e, immediately before the prison guards came to take the applicant to the hospital. The investigator has not sought an explanation for such an unusual event, which is all the more remarkable as thus the only neutral witness not integrated in the prison hierarchy and not linked to the authorities was removed.

Of even greater significance is the fact that, whatever the evidence of those associated with the applicant’s transfer to hospital on 20 April 2012, the applicant while in custody had sustained bruising which was found both in the examination report of 24 April and the Ombudsman’s report of 25 April to have resulted from the use of compressive force. This required in our view a more searching inquiry as to the cause of the injuries, going beyond merely questioning those who had been directly involved in the transfer to hospital. We do not find on the evidence before us that such a thorough examination was carried out. In particular, in the report of 24 April it was indicated that the apparent age of the bruising did not coincide with the time indicated by the applicant and that the localisation of the injuries was such that they could have been self-inflicted. However, there is nothing to suggest that the investigator took any steps to establish precisely when the injuries were likely to have been sustained in the view of the colony medical staff or of the head of the Kharkiv Medical Academy department of forensic medicine, who had confirmed that view in his report of 26 April. Nor does it appear that the suggestion that the applicant’s injuries may have been self-inflicted, if such a suggestion was treated as credible, was pursued by the investigator either with the applicant herself or with the staff of the colony where, according to the authorities, she had been kept under continuous video surveillance. Further, there is no indication that the theory, first put forward in the report of 26 April 2012, that the applicant’s bruising was not caused by a compressive blow, as had previously been found, but was related to a condition linked to the applicant’s vascular and circulatory system, was followed up in the investigation. In particular, it does not seem that any attempt was made to examine the applicant’s medical records to which reference was made in the report or to establish the likelihood that the bruising in question had no external cause.

It is true that the investigation was hampered by the applicant’s refusal to undergo a forensic medical examination on two occasions, as noted in the decision of 3 May 2012. However, we cannot overlook the fact that the history of the applicant’s detention was characterised by her mistrust of the State authorities, including medical staff and experts who worked under the authority of the State and were not seen by her to enjoy the necessary independence. In these circumstances, we do not find unreasonable the applicant’s wish, in a case in which she alleged an assault by members of the prison administration, to be examined by an expert seen by her to be entirely independent of the State authorities. We note in this connection that under Ukrainian law individuals do not have a direct access to forensic medical examinations without an investigator’s or judge’s authorisation. In any event, whether or not her refusal can be regarded as reasonable, it did not exonerate the prosecuting authorities from taking such steps as were open to them to establish the nature and cause of the recent bruising which had unquestionably occurred while the applicant was detained in custody. For the reasons given above, we do not find any evidence that the necessary steps were taken.

Given the shortcomings found, we find that the investigation was not thorough and thus fell short of the requirements of Article 3 of the Convention.

We note that the applicant complains also of the lack of an independent investigation of the matter. The investigation was entrusted to the investigator of the Kharkiv Prosecutor Regional Office. The head of the investigative department of the Kharkiv Regional Prosecutor’s Office had twice refused to institute criminal proceedings against colony staff due to the absence of any indication of a criminal conduct. Having regard to our opinion that the investigation did not in any event satisfy the requirements of thoroughness in the present case, we do not consider it necessary finally to determine whether the investigation also lacked the requirement of independence. In our opinion, there has been a violation of the procedural requirements of Article 3 of the Convention.

Turning to the substantive aspect of the applicant’s complaint, we observe that in the present case there is no conclusive evidence concerning the circumstances in which the applicant was injured and in particular concerning the exact nature and degree of force used against her. Nevertheless, we consider that the bruising which was established on the applicant’s body was consistent with the account given by her of an assault by one or more members of the staff of the colony at the time of her transfer to hospital. Moreover, it is in any event beyond dispute that the bruising occurred while the applicant was in detention, thereby imposing on the Government the burden of advancing a plausible explanation as to how the bruising had occurred which did not involve the use of force on the applicant by members of the staff of the colony (see Ribitsch, cited above, § 34, and Salman v. Turkey [GC], no. 21986/93, §100, ECHR 2000-VII). It cannot be considered sufficient to advance hypotheses without making any effort to prove their veracity. In view of the inadequacies of the investigation into the circumstances of the bruising which are noted above, we are of the opinion that the Government have failed to advance any plausible explanation for the injuries of the applicants while in detention. Accordingly, in our opinion Article 3 of the Convention was violated also in its substantive aspect.


[1] Tymoshenko in the hospital.

[2] The scope of the second-mentioned issue is covered by application no. 65656/12.

[3] That issue forms part of application no. 65656/12.

Siberia – a new destination for tourists

Tourism and Russia – this was mainly restricted to some big cities like Moscow or St. Petersburg. Other regions never played a big role. This may soon change. In the beginning of April 2013, the Russian State University for Trade and Economy (RSUTE) in Omsk, who runs there a successful branch for this university anchored in 27 cities and with a long history of transferring know-how in business already in Tsarist times, organised a conference on „Sustainable Development of the Region“. The region is, for example, Omsk Oblast, with approx. 2 million population of which 1,1 live in the city of Omsk. This means that the rest of the large Oblast does not include too many bigger towns and is thinly populated.

It is due to the efficiency of the Rector of RSUTE Omsk, Prof. Sergey Metelev, and his deputy, Prof. Svetlana Bolotova, and the Head of Humanities, Prof. Svetlana Efimova, that the „2. Manikinskiy Readings“ took this spin, and the conference was a great success: Many speakers focussed on different kinds of tourism, and it was impressing what the Omsk Oblast has to offer. From a town which has archeological diggings, to a untouched nature where many fur animals or birds can be watched, to many witnesses e.g. of a German-related history (where in the years after 1730 „Forposts“, in German: Vorposten, have been built by a Prussian army officer on behalf of the Russian Tsar). Still today one can find a surprising high quota of German speaking people (besides English), and many names in the population seem to have German origins. European individual or small group tourists may be at ease in Siberia in summer (when it can become hotter than in Europe!), but also in winter, when it is cold of course, but in a continental-dry version. Of course the relatively short summer season may be more interesting. And the fact that now the „Governors“ are elected by the citizens of the regions themselves and are not anymore imposed by the Kremlin may contribute to a more citizen-oriented policy.

There are many guest houses needed, or small hotels and this also in more remote areas – but this can be managed, and there is already an infrastructure. Also with the help of foreign direct investment, maybe together in joint ventures with locals (for e.g. a hotel, or a guest house). The other endeavors can be managed by the local business alone, i. e. car or bicycle rentals (the European affection to cycling in flat areas must still be made conscient), guided tours, photo safaris, historical tours etc. There are many museums there in the province, and I believe it will be not a too big problem to cope with e.g. the English language for many objects, maps, pictures etc., but also with guided tours. So this will be also an important task to the Siberians. Now it lacks only the offers, via European tour organisers, or via Siberian ones directly. This is now the vacuum to fill – and one can start modestly.

How a region can be developed is visible in many websites, e.g. of the OECD, of tourism regions, of the EU. In Russia, the development of regions by tourism is only at a certain start. Tourism is a unique job machine. The people are hospitable, with a sound intellectual curiosity, and the investment should be welcome, as oil and gas are not everything, and Russia needs a diversification.

One can bet that in 5 – 10 -15 years, tourism will be a stable and visible element in the region’s statistical figures. Mr. Metelev, who masters the art of networking in an excellent way, is an economist!

Hans-Jürgen Zahorka

„Alternative for Germany“ – „Alternative für Deutschland“. The New German Anti-Euro Party

There is a self-declared „Alternative for Germany“ now, with the main focus on the German withdrawal from the European currency, in view of the next Federal Parliament (Bundestag) elections in Serptember 2013. This party (which in French would be qualified as „groupuscule“, not more) is right-wing populist, it is totally unclear from which background the party operates (there are former CDU and FDP members, but also others – it was whole-heartedly welcomed by the neo-nazi NPD), it is a „single purpose movement“ only – namely with the central point of Germany stepping out of the Euro and returning to the old German Mark. The founding meeting on 13./14.4.2013 was endlessly blaming  Greece, Cyprus, Ireland etc. They were all said „to be paid by Germany“ – which is absolutely untrue. And the bashing of EU partner countries who buy, by the way, lots of German goods & services is deeply unfair and unjust.

The Bundestag election programme of altogether 4 pages was adopted by acclamation, without discussion, and any changes were promised to do „later“. A look in the statutes shows that any changes can be made by a 75% majority only. This kind of practice was the usual method of the former East German communist party SED.

This party is mainly composed by university macro-economists who have gone lost of the reality of life (and who only in a minority might have seen a company from the inside). And there is no answer to their central objective, the scrapping of the Euro for Germany: Undoubtedly there would be, in this case, a high increase of the Deutsche Mark (which should be reestablished) external value, and subsequently the danger of less exports, the danger for Germany to lose its role as European engine for the economy, the German competitivity and the job level in this country. In short: The „Alternative for Germany“ would be an alternative in the direction of desaster. The typical member of this party is over 50 years, male and potentially attentive to right-wing or right-extremist sounds.

This party also says endlessly that they are no anti-Europeans, and that they just want to withdraw Germany from the Euro. The European Monetary Union is in the core of European integration, and it is part of the European Single Market. We do not need less Europe, we need more Europe, to adjust some of the deficits which were in the responsibility of the EU Member States when the Euro was introduced – not in the responsibiity of the EU institutions like European Parliament, European Commission or the European Central Bank. The EU has managed a lot of things in this respect, but it is not yet enough. We also had deficits in national policies, from which side whatsoever. But a unilateral withdrawal of Germany from the Euro is just „ga-ga“, and I do hope that the German voters will forward this groupuscule where it belongs to: in the trash bin of German history.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

OSCE 2013: Welcome Mongolia, and Ukraine: Attention, You Will be Watched

The OSCE is not the easiest organisation, but it has proven to follow a solid policy in the sense of the majority of its member states, i. e. pro Human Rights, democracy, freedom of press etc.

In this context it may be useful if it is pointed out that some weeks ago, the OSCE has a 57th member state – Mongolia. This signalizes a political choice of a country surrounded by states like China, Russia, Kazakhstan. So welcome, Mongolia, and it can be considered a choice of confidence. In my opinion, Mongolia will be a non-problematic member of the OSCE.

Another member state has taken over today the presidency of the 57: Ukraine. This country is more problematic. This has to do with its demands to herself, like joining sooner or later the European Union. Nothing against this at all; enlargement is always the most successful aspect of any EU foreign policy, and welcome to the Ukrainians! But a country close to the EU wanting to join the club is always under closer scrutiny than a country further away.

According to an OSCE press release from today’s 1st January 2013, the country „will seek to make progress on resolving
protracted conflicts, strengthening conventional arms control, combating human trafficking, reducing the environmental impact of energy-related activities, and protecting human rights and fundamental freedoms as OSCE Chair in 2013 the new OSCE Chairperson-in-Office, Ukraine’s Foreign Minister Leonid Kozhara, said…“. It is correct when the Minister underlined „his country’s role and experience as a co-mediator and guarantor in the Transdniestrian settlement process and
welcomed the momentum achieved in these talks over the past year. He stressed the need to continue to make progress in this and other protracted conflicts in the region.“ This is correct, and maybe the Ukrainian chairmanship can change something to the positive in Transdniestria, Abkhazia, Nagorno-Karabakh and South Ossetia. He should be wished all the best when he says; „We must re-energize negotiations within the existing formats and prevent any escalation in tensions. The resolution of protracted conflicts must remain the highest priority for the OSCE and all participating States”.

This sounds after all very well and is also realistic, together with some other accents on arms control and confidence-building measures, the OSCE Chairperson-in-Office stated, as a way of strengthening security and military stability.

But there is another wish to Ukraine, too: Strengthening democracy at home, a correct handling of human rights, of elections (about which some weeks ago the OSCE election observers issued a devastating assessment), of the non-interference in the judiciary – and all this in an evident, uncomplicated, uncontested way. I have often heard the argument that some CIS countries, like Ukraine, cannot achieve within 20 years what other states – e.g. in Western Europe – have achieved since World War II (Germany), since 1789 (France) or since the 13th century (Great Britain with the habeas corpus act). Come on please, information today is global, education too, discussion too, and of course nobody would blame Ukraine for details in this field, but in general today we all live in an era with common goals, to which the preservation of power does not belong. So nobody in Ukraine lives still on the back of the moon.

The European Union Member States have just been witness of an OSCE chairmanship by Kazakhstan, not either the yolk of an egg. But it was good to go there and discuss openly, and perhaps it could contribute to an open-minded and free mass media there in the future (not during and right after te OSCE year of the country). As soon as Ukraine will have a system which is not anymore determined by corruption, by political trials, by full fundamental freedoms, then nobody in the EU will have anything against „the“ agreement EU-Ukraine. This must be taken into account by the Kiev government. The OSCE press release from today says „Emphasizing that protecting human rights and fundamental freedoms and implementation of existing OSCE commitments in this area remain an important integral part of the OSCE’s concept of comprehensive security, Leonid
Kozhara said that Ukraine’s Chairmanship would promote fight against human trafficking, support media freedom and encourage meaningful steps in a number of human dimension issues.“ Great what he wants to achieve. But has he the freedom to do so by his own government, apart from human trafficking? There are a lot of doubts, and they are permitted. And if he wants to get rid of FEMEN, the fancy female movement which has brought a new, drastic, colourful demonstration culture to Ukraine (like „Pussy Riots“ to Russia) – then, Minister, it is very easy: Just change a couple of things within Ukraine, and then FEMEN will be obsolete. But at present they are necessary in your country.

Let’s wait until 17. January 2013. Then the Minister will present Ukraine’s priorities to the OSCE Permanent
Council in Vienna. Let’s wait if it will be an apparatchik’s speech, or something which can bring Ukraine closer to the European Union, as its citizens desire it (and please do not forget: The EU cannot be blackmailed with a possible approach to Russia!). What you say, Minister, may upgrade your country as valuable interface to Russia, why not!

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

Macedonia vs. Greece, and now also Bulgaria

The result of the last European Council in December 2012 has hardly been taken note of outside of the concerned countries, what concerns the Macedonia accession to the EU. The European Council has for the 4th time consecutively denied the opening of accession negotiation, against a clear recommendation by the EU Commission for the 4th time. This shows that the veto at least at this stage is a totally outdated instrument.

The European Council decision was due to the traditional veto by Greece because of the name of Macedonia, but there are some hints in the air that the name issue might be settled (or pre-settled) between Macedonia and Greece in the next months, by an exchange of notes or other diplomatic documents between the both, and the good services of a (US) special envoy acting on behalf of the United Nations. The unblocking of the name issue will also lift the Greek veto against Macedonia’s accession to NATO which has been blocked by Greece as well (and this against a decision of the International Court of Justice). However, Greece was not really in the position to develop policies during the last months, for elections, a difficult change of government, and urgent legislation reasons – this of course everyone has to understand.

But what was new for the December decision was a de-facto veto for the Macedonian EU negotiations by Bulgaria. This was hardly perceived among the EU citizens.

Not enough that Greece so far has failed to quote any legal or qualified political arguments regarding the name of Macedonia (and of course some Macedonians are taking their mouth a bit full, too, in the best Yugoslav way) which may soon be changed. Macedonia’s recognised name is the „Former Yugoslav Republic of Macedonia (FYROM)“. The country would prefer the simple name of „Macedonia“, however this is the name of a province in northern Greece. In Belgium there is also a province with the name „Luxembourg“. Maybe a compulsory „Republic of Macedonia“ might be possible?

But Bulgaria has argued – through its Prime Minister Boyko Borissov – that parts of „its history have been stolen“ by Macedonia and that Bulgaria has been badmouthed (see among many other sources: http://www.euractiv.com/enlargement/bulgaria-vetoes-macedonia-eu-acc-news-515809). Background is an exchange of letters between the Presidents, started by Bulgaria, which can only be considered as stupid, and where Bulgaria has advocated to commit a holiday together with Macedonia. Nothing against this, but a common commitment can only be proposed for uncontested holidays.

Dear fellow Bulgarians, the European Union is not a nationalist event! And that your President qualified Macedonia „not ready for accession negotiations“ is clearly contradictory to the recommendations of the EU Commission which four times during the last four years has recommended to start negotiations with Macedonia. At first, had someone of the previous EU Member States said this, Bulgaria would not be a member of the EU27, and it cannot have to do with the perspective that the EU Commission may impose an extraordinary monitoring report on the Bulgarian judicial system, which however seems very justified.

Also Macedonia should of course refrain from setting up monuments which easily can be considered as nationalist. But one has fully to endorse EU Commissioner Stefan Füle (who is one of the pillars of the Commission) who said towards Sofia “… it is not good to leave our partners waiting before the door for too long. I believe that integration is the best means for coping with nationalism, and I am convinced that isolation boosts nationalism.” In this context, Macedonia merits indeed now a fast start of negotiations, though many negotiation chapters can be cleared in advance. Macedonia has a certain fragile structure, with a big Albanian minority, an armed internal conflict in 2001, a Roma population which is partly de facto discriminated, and above all a country which has no further grave problems whatsoever with its neighbouring countries. The country merits now a stringent further approximation towards the EU – but no unfriendly fire from Bulgaria, which by the way is not contested by many opposition politicians there.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

Kazakhstan – and Free Access to Information …

Recently, at the end of November 2012, I spent a week in Kazakhstan. I wanted to write (something nice) about this country in this very blog, in http://libertasblogs.wordpress.com, from my hotel in Astana, the country’s capital. Despite several attempts, there was no access to the blog. Before the n-th attempt, I had the the idea of a Google search action. „WordPress blog Kazakhstan“ were the keywords.

And what had I to find? Evidently, this blog is blocked in Kazakhstan. Among the many thoughts flashing through my mind in this moment, there was also the memory that last year the country had the presidency of the OSCE.

Kazakhstan is considered a free country in general, taking into account the Soviet system still prevailing 20 years ago, and it has a „wise man“ as President who provided for a clever governance, in general and regarding his immediate influence. Does the country not have the sovereignty to abstain from blocking blogs?

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal 
 
 
Remark from 22.8.2013:
Since the appearance of this blog contribution, there seems – at least sometimes – to be some movement. Evidently, the Kazakh Government (which had so far repeatedly court sententes to refer to) has allowed the access to WordPress, at least sometimes. We had in the meantime European witnesses who were in the country and who told us they could not access to our blog, but on the other hand we have got several objective signs for access. We do not know exactly what leads to this situation – technical or political reasons.
 
 
 
 
 
 

Have a Look at Catalonia!

Today the official election campaign for Catalonia’s regional election has started. It would be good if the Europeans follow this campaign as close as possible. If Prime Minister Mas wins, then Catalonia would be one step closer to independence from Spain – by the way an option which would for sure not require new EU accession  negotiations, as the citizens there are since 25 years in the European Union, want to remain there, want to continue to pay with the Euro, and want gto preserve the whole acquis of the EU (what has been achieved so far). So no reason to send them behind any accession candidate; this is just a new discussion for the EU, without precedent.

It is also useful to observe Catalonia as this shows the erosion of national states in the EU. Since years I have predicted an approach movement between the EU (supranational) and regional (subnational) levels to the detriment of the national ones. This is evident:

1. The national state was rather centralist and not able to integrate the regional demands for being heard and above all financially considered. These was no real federalist structure, up to now. There are now calls for Spanish federalism (or call it whatever you want), mainly by some of those opposing independence, but I fear this is too late, and it is also unclear if the Spanish central state will react positively to these proposals.

2. There is a Europe-wide tendency to regionalism, where there are centralist systems. Not in France which has managed a certain decentralisation, involving many politicians on the regional level, between the échelon départemental and the national level. There is an element of post-material thinking hidden in this, where „Heimat“, or the smallest possible level also for a state, (re-?)gains momentum. This again is due to the effect of „hi tech – hi touch“, a reflection of the highly technicised world in which we live, with communication tools, Internet, robots  etc.  Exactly the same leads lawyers, engineers, surgeons, PR experts etc. to work a season as a shepard in the Alps – in a functional variation. ´This notion of „Heimat“, however, is not anymore linked to „Blut & Boden“ („blood and land“ – god thanks not anymore!), but to an overseeable state, to a fiction of a community without sorrows, to an „idyllic“ narrowness, however one where openness can be preserved. This is exactly the same emotion which leads many people to appreciate to be on an island (often as a visitor) – a territory with finality.

3. There are also functional reasons, defined by taxation feedback deficits, home rule deficits and above all many infractions of the subsidiarity principle. Even the official European Union has now the Committee of Regions which can be a forum where one can find counterpart elements against state centralism.

In Germany people think mostly federalist, i. e. they are accustomed to federalism, since many generatons, with the interruption of 12 years all over Germany and 45 more years in the East [but there has been information  from the West, on which the fast switch could be based]. This word „federalism“ is e.g. in France, the UK etc. something un-wanted, due to historically different definition. Call it decentalisation, function sharing, devolution or whatever … In Germany (and also in Austria) the Slovakia secession was taken note of only. We also see the Catalonian (and Scottish) movement either with a certain sympathy, as a real German federalist is always, in case of doubt, sympathetic to the regional level, or at least indifferent.

Both sides – the „Spanish“ and the „Catalonian“ one – should make extensive use of the German experience in federalism. About what should be made – and what not. If everyone wants to remain in the EU, and this is the case, then it does not matter, if we have 1, 2 or 3 or so Spains or UKs. We said the same around the turn into the 1990s, when East Germany faded away as a state. At that time one coukl find many politicians who said it does not matter how many parts of Germany there would be, provided they had a democratic, human rights-based system, a social market economy, and open borders. But this was never in serious discussion, as the whole country looked back on a very long experience in federalism.

After all, hoping that BOTH sides are discussing calmly the pros and cons, the Catalonia election will be an interesting showdown example.

Hans-Jürgen Zahorka

Scotland (or Catalonia) Does Not Need New EU Membership Negotiations

There is a new situation in the European Union. In several Member States parts of these states have the intention to become proper states themselves – Scotland from the UK, Catalonia from Spain.

We had this sitution already, but before the membership in the EU, between the Czech Republic and Slovakia, and in a negative sense, when the former German Democratic Republic finished as part of Germany in 1990. There it was an addition to the present EU and no split-off.

The question is now, should these possible new states have to negotiate a new accession to the European Union, or could this be „implied“ more automatically? In this light, the President of the EU Commission, Mr. Barroso, declared some weeks ago that new negotiations would have to be undertaken.

This may have been said in error, if this had been said indeed. There are ways and means of an „automatic“ succession to the EU membership, and above all this should be excluded from any discussions. It is interesting that the argument of new negotiations is mostly applied by those who oppose the „secession“. In the background there sounds a threat to veto then the possible membership. This would mean a new form of political hostage-takiing with the means of EU membership, and this is totally unacceptable.

It has to be borne in mind that the EU has never seen such a secession and the consequences of being in the EU furtheron or not – this is just simply not known, and there is no prejudice, treaty article or case law. Only Greenland left in 1985 the EU, but not the Danish umbrella. This came partly only much later, and it is a completely different case.

As a German who was born into this country’s federalism and thinks automatically federalist, it was not easy to understand why „federalism“ is used in the United Kingdom as a word equivalent to devil, bad ghost, witchcraft (or worse expressions). The official Great Britain always saw things as they had always have been seen by some of their elites, and thus expressed a kind of structural conservatism which ended in a kind of intellectual explosion according to the core-periphery principle at the periphery, i. e. in Scotland. In France, since Pompidou every Président contributed in reforms to decentralise the country. Although in the UK „devolution“ ended in own parliaments for Scotland and Wales, this was not enough, as there is still an existing antipathy in Scotland (and Catalonia) against the capital and its „arrogance“. One can discuss now if the inverted commas should be deleted or not, but it does not help. Whatever the result of the Scottish referendum will be, once they will succeed to go independent – and the more the core or centre or the capital works against this, the more decided Scotland will work in the future for its independence. If London would have had a true „federalist“ approach to Scotland, its oil, its other issues related to the referendum (including Europe as an issue), from the beginning, i. e. from the 1970s or 1980s, we would not know this discussion we see now. Scotland would have perhaps a relationship towards England and Wales similar to a German Land towards other Länder. But the United Kingdom unfortunately never managed to follow the needs of a modern state to decentralise.

Why now Mr. Barroso was wrong when indeed saying that there must be new negotiations if Scotland wanted to remain in the EU?

First, Scotland (and Catalonia) is integral part of the European Union and therefore can not accede to it. New negotiations are, however, only reserved to states who want to become Member States. Scotland (and Catalonia) are already part of a Member State, and they evidently do not intend to change this. They want to keep the whole acquis. If this is the case – and it is, evidently – to hold new membership negotiations would be a legal abuse. It is clear that the referendum question will not concern to withdraw from the EU, but only from the UK. Article 49 EU Treaty (Lisbon I), like the predecessing treaties, says that every new state who wants to come to the EU can do this (not directly, but indirectly, of course, as this case never has been thought of). It is evident from the whole context that this does not refer to today’s regions who may be tomorrow’s states but are already in the EU. In the EU a constellation like Scotland / UK has never been observed before, and in this context art. 49 ECT cannot be applied according to its present wording.

Second, the whole EU acquis (what has been achieved by the EU so far) will be taken over as such – without any changes except editorial issues or concerning the representation in EU institutions.

Third, East Germany was not split off from any country but joined as such the Federal Republic, which means there was an „inverse Scotland effect“. Indeed, in 1990 the whole GDR – later the five East German Länder – „glissed“ into the EU – „ohne Beitrittsverfahren, ohne Vorbedingungen, ohne Vertragsänderungen“, – „without an accession procedure, without conditions, without Treaty changes“ as it can be read by the words of Carlo Trojan, the relevant Commission official who took part in the negotiations (http://www.euractiv.de/europa-2020-und-reformen/artikel/wie-die-ddr-lautlos-in-die-eu-flutschte-003717) [in German ;)].

Fourth, the so-called state succession in international public law does normally not deal with a modern integration like the EU and parts of one of its Member States who want to go independently. The so–calld „universal succession“ cannot be applied here, as it does not concern the membership in a partly supranational body like the European Union. There are in the international public law literature many sources where in case of doubt this would be possible, however.

The consequence is that it has to be considered under political aspects – nothing more, nothing less. My modest football knowledge tells me that Great Brritain will after all not treat Scotland in an unfair way, otherwise and in case the independence would be denied, this will ricochete. Also Mr. Barroso will have to concede that this procedure will have to be seen under political aspects.

And one of these aspects is the self-determination of countries. This is an absolute value, a true value of modern Europe and for the EuropeanUnion. If therefore one, two or even three or maybe four new coutries would emerge – the Europeans are so sovereign to accept this, why not?, and for the citizens nothing substantial will change as well, as there are the Four Freedoms in economy, the Union Citizenship in the EU, the Schengen Agreement (well, not for UK yet) and the full free movement for persons – one of the Four Freedoms – in the whole EU.

But the more nationalist, backwards-looking, non-caring, them-and-us-thinking, provincial and constipated the present British government parties will think, at least the bigger one, the more they will give arguments to the Scottish people to vote in a positive referendum.  If not in 2014, then in 2018 or 2022. And the European Union again will shake its head about their British partners who lose more and more influence among the EU – and this in a time when all others go closer together.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal (www.eufaj.eu)

Public-Private Partnerships (PPP) for Kosovo Educational Institutions

After just having returned from Kosovo, I am allowed to point out to one of the country’s major problems: the education situation and the brain drain. This country has one of Europe’s youngest population – this is evident if one just walks the streets. However, what they need now urgently is education. The country does what it can deliver, and the new Ministry of Education in the busy center of the capital Prishtine may be a visible sign for this ministry’s prominence. There is still a lack in long-term secondary education, especially vocational training. Otherwise the country’s workforce will not be as able as they could be to welcome substantial foreign investment, what is urgently needed, and furthermore the brain drain will not dry out. This does not hinder the impression that many very well educated people have returned (or have come for the first time in their life permanently to Kosovo).

In this context, I had given the first courses already in 2005 in Kosovo on Public-Private Partnerships, also in education (see also [in English] http://www.libertas-institut.com/de/Mittel-Osteuropa/PPP_Workshop_01.08.05-Pristina_en.pdf, [in Albanian] http://www.libertas-institut.com/de/Mittel-Osteuropa/PPP_Workshop_01.08.05-Pristina_alb.pdf, or see a newspaper dossier in „Express“, in Albanian: http://www.libertas-institut.com/de/Mittel-Osteuropa/Kosovo%20Express%2017.8.05.pdf). Until now, there has been no possibility in the country to realize this principle. PPP as a principle is perfect, if the state does not have the investment and operation funds, but private capital would be available. However, one has to take care of several criteria and risks, but in general education institutions are in many countries possible and recognized.

Also in Kosovo the Ministry of Education is very interested, and banking institutions confirm that there is not yet any PPP financing in Kosovo. The project in discussion is, among others, a vocational school for hotel & catering professions (cooks, waiters, hotel personnel etc.). This does not mean that owls are carried to Athens, as everybody in Kosovo knows how to roast meat, how to cook vegetables etc. It is just the overall hospitality effort which will be strengthened, and the side effect will be to provide some young people with serious professional perspectives. 7 years after the first government workshops on PPP, it is now time that something is done. The educational system of Kosovo will after all be happy, and the involved people as well.

Hans-Jürgen Zahorka
Chief Editor, European Union Foreign Affairs Journal

In This Autumn, Decisions Ahead for the European Union

Wednesday, 12.9.2012

In Summer 2010 I gave conferences on a Summer School of the European Law Students Association (ELSA) in Marbella, Spain, about the new Lisbon Treaty of the EU. I had predicted a far-reaching discussion about this treaty and the needs for a new treaty right after the one from Lisbon: the Euro, public finances, the economy, social subjects, EU foreign & defence policy, future enlargements and the principle of unanimity in general, just to name some catch words.

In my opinion the present EU, and also as it was and is growing, cannot survive or develop with the slowest boat determining the speed of the whole fleet, what makes a „Europe à la carte“ inavoidable – unfortunately! In this context a new EU Treaty must come, this was evident from the day the Lisbon Treaty was in power. All outcries when this was discussed were just appeasement to the „public opinion“, not taking into account the silent majority.

This autumn will be a hot one for the EU, as we will nosedive into a new treaty discussion. Unlike with other treaties, this time we have a real discussion about the real future of the EU. EU Commission President Barroso has articulated in his State of the Union Address from today that this Europe will be federal, wil be „more Europe“ than ever. We will come – finally! – into interesting, even thrilling times for the whole EU.

So we will not have only a clear decision for the continuation of the Euro among its present partners, but there will also come the next new Member States into this system. Not today,not tomorrow, but after tomorrow; however they have to take the right tracks already now, and this definitely. In addition, we will have a more democratic EU with stronger institutions, and after these discussions there will be a decisionmaking. Maybe even by a public referendum among all the participating EU Member States. And who does not approve what will be elaborated, will be left behind. Period.

Indeed, the next European Parliament elections in 2014 will be an important milestone. The general unanimous approval to the EU will be sometimes and in some countries in controversial discussion. But the EU (about which is said „TINA – There Is No Alternative“, but this is not enough) as a principle of a political get together will make it.

This will go now hand in hand with EU steps to settle the so-called financial crisis. We have now a first cornerstone with the so called fiscal union, with the future banking supervision by the ECB, and by the new policy of the ECB to buy, if necessary, state bonds in an unlimited quantity. That this was declared was absolutely right – every limitation would be an invitation to speculators to test the possibility of not-anymore-reactions.

This we know since the old European Monetary System when in the 1980s the bandwidth of 2,25% for the old ECU was enlarged to 12,5%, and all of a sudden the speculations against the 2,25% limit were over. By the way, one of the speculators who then forced the UK to leave the ECU, in a crtain way the predecessor of the Euro, was Hungary-born George Soros who only these days in an interview of DER SPIEGEL recommended to Germany to leave the Euro. This would have inevitably a spiral turn upwards for the old/new Deutsche Mark as consequence, very welcome for speculators who then can bet again huge amounts on these movements. 

It is evident that any solution of the financial crisis can only be implemented under clear social balances. These have to differ from Member State to MS, even from region to region. This is a lever for a multi-level approach, according to the subsidiarity principle which implies that as much as possible has to be done at the level which is closest to the citizen.

So the discussion about the future of Europe has just started – today, Wednesday, 12.9.2012. With the speech of Barroso on the State of the Union before the European Parliament, and with the decision of the German Constitutional Court about the compliance of the German legislation with the EU 500 bn. ESM (European Stability Mechanism) umbrella and the fiscal union. This time the silent majority (or the „elites“ as often pronounced) should not remain silent but lead the discussion.

Hans-Jürgen Zahorka,
Chief Editor, European Union Foreign Affairs Journal