The night when Ukraine almost lost its visa-free regime with the EU

 

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Article by: Serhiy Sydorenko

Just yesterday, Ukraine could have crossed the red line in its relations with the EU, sliding back to Yanukovych’s times. An unprecedented attack of Ukraine’s law enforcement agencies against the National Anticorruption Bureau, considered to be the only independent investigative body in Ukraine was deflected thanks to intensive overnight negotiations by Ukraine’s foreign partners. During them, the EU even thought about using its “nuclear weapon” against Ukraine. This adapted piece based on Serhiy Sydorenko’s article in Yevropeiska Pravda, translated by the Ukrainian Crisis Media Center, sheds light on what happened that night .

On December 5, the European Union officially accused Ukraine’s Office of the Prosecutor General of undermining the work of the National Anticorruption Bureau (NABU). One day earlier, the US expressed doubts as to whether Ukraine actually wants to combat corruption. One would think it is impossible to miss hints that obvious, however, official Kyiv managed to do that: in the night between Wednesday, December 6 and Thursday, December 7 Ukraine almost crossed the red line in its relations with Brussels.

What on earth is happening in Kyiv?

The “war of the anticorruptionaries,” which culminated in Ukraine’s Security Service and Prosecutor General’s office compromising NABU’s undercover agents, reached its peak on Wednesday evening, December 6.

The Verkhovna Rada (Ukraine’s Parliament) published the draft law no.7362 on its website with the rather abstract title “On amending the laws on parliamentary control.” According to it, Ukrainian MPs would have received the right to dismiss the heads of Ukraine’s anti-corruption agencies set up after the Euromaidan revolution to help eradicate corruption.

Namely, the NABU director, head of the Specialized Anti-Corruption Prosecutor’s Office (SAPO), any member of the National Agency for Corruption Prevention, and director of the newly established State Investigation Bureau could be sacked with a simple majority of votes, with no justification, audit, or court decision required.

Thus, all the anti-corruption agencies would become fully controlled by the parliamentary coalition and could be easily turned into political instruments. Under such conditions, investigating corruption in the Parliament would become, in principle, impossible.

The draft law was co-introduced by Artur Herasimov, head of Petro Poroshenko’s Bloc, and until recently, the President’s representative in the Verkhovna Rada, and Maksym Burbak, head of the Narodnyi Front faction. This level of co-authorship happens only when the document has been agreed by the ruling coalition and by the Presidential Administration and is to be adopted as soon as possible – as soon as enough votes are found.

The draft law would have expanded the Parliament’s powers, making positive votes were easy to find. To speed up the voting, the draft law was registered with the non-competent but loyal parliamentary committee on state construction. This allowed registering the draft law for the consideration for the next morning, December 7.

This document, while pleasing many Ukrainian politicians, without exaggeration shocked Ukraine’s foreign partners. The President’s Administration and a number of influential MPs received unequivocal warnings: “Wake up! You have too much at stake.”

What does visa-free travel have to do with this?

It may seem unobvious, but there is a direct link between NABU activities and Ukraine’s visa-free travel with the EU.

The EU waived visas for Ukrainian citizens only after Kyiv implemented the Visa Liberalization Action Plan, in which the most complicated requirements were the anti-corruption ones. Years passed before they were implemented. One of these was to set up the system of independent anti-corruption institutions (including NABU) to investigate high-level corruption. Together with granting the visa-free regime, the European Union approved a new mechanism allowing to suspend it. The European Commission has to report to the European Parliament and to the Council of the European Union at least once a year until 2024 on how Ukraine is implementing its visa-free commitments. If even one of the criteria is not properly met, the EU must start the procedure for suspending the visa-free regime.

“We are not currently ready to publicly speak about suspending the visa-free travel but in conversations with our Ukrainian colleagues, we have given that signal. The issue is already on the table,” said one of Yevropeiska Pravda’s sources in EU institutions.

Pressuring with money

“The visa-free lever” is called “nuclear weapons” in Brussels, and it really is. The Ukrainian politician which make the country lose one of its few signs of European integration would quickly become history.

However, the West has other levers, both political and financial, and they used them that night as well.

Yevropeiska Pravda has no information as to whether the details of a new tranche of the EU macro-financial assistance were discussed during the night-time negotiations, but they will be definitely in focus on Friday during the meeting of the Ukraine-EU Association Council. After the “anticorruption coup” attempt,there are no doubts Brussels will draw clear anti-corruption conditions for Ukraine to get the money.

The IMF has already made it crystal clear: Kyiv has to stop the attack on NABU and set up the anti-corruption court in order to continue the program of cooperation with the institution.

The White House refrained from statements last night, but the general mood was well transmitted by Michael Carpenter, former advisor to Joe Biden and one of the key experts on Ukraine.

The part referring to security assistance deserves particular attention as the fight against corruption is not just a condition of the EU or the US. It is one of the key criteria defining the depth of the Ukraine-NATO cooperation.

Why did this happen?

Possibly because the actual Ukrainian authorities are twice more competent compared to its predecessors when it comes to international negotiations.

Every time a critical situation arises, Poroshenko somehow manages to convince the international leaders that Kyiv is committed to reforms, it is just the divided Parliament and Russian army that prevent Ukraine from moving forward. The recent situation with the EU’s macro-financial assistance serves as a vivid example. Before Poroshenko’s visit, the European Commission was discontent with Kyiv losing 600 mn euro because of reform back-pedaling,  after meeting the President, it was agreed to balance this loss with a new program allocating about two billion euros.

Such achievements seem to have given Kyiv a false sense of permissiveness. This resulted in the coalition draft law which would have destroyed NABU’s independence.

Negotiations between foreign diplomats and Ukrainian politicians on this matter continued until the morning. Direct calls to suspend support programs for Ukraine appeared, as well as a discussion within the EU to put the suspension of the visa-free regime on the agenda.

On the night of 6-7 December, Ukraine’s internal actors together with external pressure, helped prevent the country from making a step into the abyss. By morning, the ruling coalition realized the possible consequences of their initiative, and the draft law was excluded from the parliamentary agenda for Thursday.

In the morning, international partners received phone calls from the President’s Administration claiming that the opinion of the West had been heard and the draft law had been canceled.

The “corruption coup” was defeated, although the evening before there was no certainty at all as to whether it could be prevented. However, it is very important to make sure that such an idea does reappear once again in a new form.

Making sure this doesn’t repeat

Narodnyi Front, the party led by ex-Prime Minister Yatsenyuk, now insists that the draft law was initiated by the President’s Administration; but it is Narodnyi Front who was the most active in promoting it.

On Wednesday evening, Arseniy Yatsenyuk announced the decision to vote for the draft law on the so-called “parliamentary control.” His post was immediately shared by the de-facto second leader of Narodnyi Front, Interior Minister Arsen Avakov.

The situation changed after the coalition was made give up the notorious law. Narodnyi Front publicly promised to support the creation of an anti-corruption court and appointing independent auditors for NABU, which are the next points of contention surrounding Ukraine’s anti-corruption efforts.

So why not keep demanding that they implement their promises?

sydorenko

Serhiy Sydorenko is an editor at Yevropeiska Pravda

 

 

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