The EU accession to the European Convention on Human Rights – one step back

Katarzyna Stachyra

It was believed that after entering into force of the Lisbon Treaty the accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) will be obvious. The Lisbon Treaty made accession admissible thanks to granting legal capacity to the EU. What is more, it even imposed obligation on EU to become party to the Convention. Negotiations, which have been conducted since 2010 by the European Commission and the Steering Committee for Human Rights Ad Hoc Negotiation Group, resulted in adoption of the draft agreement on accession[1]. This document was examined by the European Court of Justice (hereinafter: ECJ) and its opinion about compliance with the Treaties, released on 18 December 2014 (C-2/13)[2], is significantly negative. ECJ said that ‘the devil is, however, as so often, in the detail’ and pointed out legal issues which have to be solved in order to access to the Convention. Some of these problems are presented below.

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The Convention and its influence on relation between ECJ and ECHR

After the accession, the Convention will become part of EU law. It means that the EU, namely all of its institutions as well as Member States, will be bound by provisions of the Convention. Therefore, actions of institutions could be controlled according to measures contained in the Convention. In other words, they would be under jurisdiction of the European Court of Human Rights (hereinafter: ECHR). In this light arises serious question concerning relation between ECJ and ECHR. Accession to the Convention will allow ECHR to assess judicial actions of ECJ or to impose interpretation of the law. Firstly, it is worth emphasizing that judicial independence is the most important feature of courts and tribunals. Secondly, as art. 2 of Protocol no 8[3] reads, ‘accession of the Union shall not affect the competences of the Union or the powers of its institutions’. ECJ as one of the EU institutions has its specific competences. Above all, ECJ has exclusive jurisdiction in disputes between Member States or Member States and institutions, related with interpretation or application of the Treaties. Hence ECJ stated, that possible jurisdiction of ECHR in mentioned matters should be distinctly excluded. Otherwise there is evident incompliance with EU law.

Coordination between the Convention and Charter of Fundamental Rights

The Convention and Charter of Fundamental Rights contain a catalogue of rights and freedoms. Despite the similarities between these catalogues, there are still certain differences which occur in provisions, as well as in interpretations given by ECJ and ECHR. Problem of coordination those two legal acts has significant meaning from the perspective of the level of human rights protection. It is necessary to avoid existing two different standards, because it could violate principle of primacy of the EU law. Because the Convention allows states to introduce higher standards than it presents itself it may lead to establishment of larger scope of protection than it is provided by Charter of Fundamental Rights. As a result, there would be a risk that Charter of Fundamental Rights would be ineffective, which would mean undermining the principle of the primacy of the EU law. According to ECJ opinion, agreement on accession shall include provisions which would prevent indicated situation.

Protocol no 16 – threat to the autonomy of the EU law

Problems with autonomy and primacy may occur after entering into force of Protocol no 16 to the Convention. This protocol introduces new function in ECHR system – advisory opinions, which may be given by ECHR at the request of highest courts and tribunals of state parties to the Convention. Generally speaking, advisory opinions may be compared to preliminary ruling given by ECJ, however they are not binding to national courts. Advisory opinions may infringe the autonomy of the procedure of request for preliminary ruling – use of the first solution may lead to resignation from the second one and, as a result, may constitute circumvention of the law. ECJ expressed in its opinion the concern about relation between those two procedures. It is on position that agreement on accession should clearly eliminate uncertainties in the application of those mechanisms.

Problems with control in the Common Foreign and Security Policy

Under provisions of draft agreement on accession, ECHR would be allowed to examine legal acts released in association with the Common Foreign and Security Policy (hereinafter: CFSP). Certainly, this examination would be conducted in the light of respecting fundamental rights. Since ECJ has no jurisdiction in certain matters related with CFSP, which results from EU law, after the accession to the Convention this jurisdiction will be granted to ECHR. ECJ emphasized that organ, which is not institution of EU, will be able to decide whether acts adopted in CFSP are in compliance with fundamental rights. In addition, it demonstrates that agreement does not follow the most important condition of accession, namely preserving the specific characteristics of the Union and Union law.

ECJ’s position – rationality or excessive precaution?

Undoubtedly we are witnesses of unprecedented event – as ECJ stated in opinion – ‘in which an international, supranational organisation — the EU — submits to the control of another international organisation — the Council of Europe — as regards compliance with basic standards of fundamental rights.’ Uniqueness lies in the fact that the EU is not a state but is pursuing to become the party to the Convention which is intended and formulated for states. Therefore there are various issues how to adjust legal mechanisms, suitable for states, for supranational organization. Opinion released by ECJ is very cautious. In certain aspects – too wary, for instance as regards of Protocol no 16. Draft agreement of accession does not contain provision concerning including this protocol in EU legal system – it would be possible in the future. Furthermore, Protocol no 16 has not even entered into force yet. However, general concern of ECJ about preserving features of the EU and its law is understandable. It is true that draft agreement on accession does not deal with all problems mentioned by ECJ. It seems that negative position of ECJ is intended to avoid confusion and uncertainty, which may occur after accession, if indicated issues will not be explained satisfactorily earlier. Problems with accession to the Convention, in the light of resistance against accession and duplication of similar systems of human rights protection, may provoke bold question – whether do we really need EU’s accession to the Convention?

[1]The full text of draft agreement is available on: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf
[2]The full text of opinion is available on: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160929&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=145591
[3]Protocol No 8 Relating To Article 6(2) Of The Treaty On European Union On The Accession Of The Union To The European Convention On The Protection Of Human Rights And Fundamental Freedoms.

Reklamy

Writing Competition – Results!

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Thank you for all articles that you’ve sent to us for the purpose of the competition. We are really grateful for your interest.

The Editorial Board has decided upon two students, the winners are:

1. Katarzyna Stachyra (MA in Law, 1st year student of MA in European Studies).

2. Magdalena Styrnik (Faculty of Law, 5th year).

Congratulations! The winning articles will be published soon.

 

As a result of the competition, this is our current Editorial Board:

Emil Wojtaluk – the Editor in Chief

Anita Weprzędz – Vice Editor in Chief

Adrianna Brzozowska

Kamil Augustyniak

Katarzyna Stachyra

Magdalena Styrnik

 

 

 

Writing Competition – „Find it! Like it! Write it!”

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EUROpens BLOG is a student initiative created in 2012 which already gained a lot of support within the country and abroad. In March we were invited by the European Commission to attend European Innovation Convention 2014. Now we face new challenges and that is why we announce the first Writing Competition.

Choose one of four topics and write an Article of 400-800 words:

  1. Ukrainian crisis (an opinion article concerning chosen events or the crisis in general).
  2. How EU funds have influenced your region?
  3. EU Erasmus Programme as your personal experience.
  4. Opinion on one of the latest ECJ judgments.

If you want to take part in the competition, please submit your entry till November 17, 2014 to europensblog@gmail.com.

Remember to add your full name, title, faculty and year of studies.

Try yourself and become the editor of EUROpens BLOG!

COMPETITION RULES: https://drive.google.com/file/d/0B-fSkFSNGXUPRUhGRDQzYTZ2Tk0/view

Facebook event: https://www.facebook.com/events/383127881834910/

 EDITORIAL BOARD

Press Review #3

Emil Wojtaluk

 

Welcome to our third Press Review, this time it will cover the last two weeks and only EU Observer news. Recently, one of dominating topics is the creation of a new College of Commissioners. Widely commented event was a rejection of Slovenian nominee for the post of commissioner and finally accepting a new one by the President of the European Commission. Now is the time for the last hearings before the European Parliament.

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EU enlargement heading into chilly period (EUobserver)

There is more skepticism in the enlargement of Western Balkans, EU is not recommending any further steps in the next 12 months. This region seems to be still too much filled with tensions and that is why the enlargement process is not so easy there. At the same time the European Commission seems to search for new instruments in talks with Turkey. What we know now is a quotations from Jean-Claude Juncker that “there will be no new EU countries during his term of office”. Here’s the full text: http://euobserver.com/enlargement/125961

Freedom of expression complicates EU law on ‚right to be forgotten’ (EUobserver)

The so-called “right to be forgotten” raised a lot of concerns among EU member states. On the one hand it gives us a new right, but on the other it can be a threat to freedom of expression and information. Check it here: http://euobserver.com/justice/126011

Ministers publish mandate for US trade talks (EUobserver)

The EU-US trade deal enters into another phase. EU governments have given the negotiation mandate for the European Commission to conduct talks on the free trade deal in June 2013 but published the official documents just recently. It was done so to avoid secrecy allegations – that the agreement is being made out of public. EU is optimistic that the negotiations will be finished before the end of 2015. For more on the current status of negotiations click here: http://euobserver.com/news/125994

Juncker approves new Slovenian commissioner (EUobserver)

Slovenia is in trouble after rejection of Alenka Bratusek, who nominated herself to be the next commissioner. Her hearing at the European Parliament was so terrible that MEP’s rejected her without any doubts. Now Slovenian PM nominated Violeta Bulc – known mostly as businesswoman. Jean-Claude Juncker is satisfied but we are curious if she will “survive” the hearings at the European Parliament. Read the news here: http://euobserver.com/political/126071

Farage’s eurosceptic EP group falls apart (EUobserver)

Nigel Farage, declared as strong eurosceptic is having significant problems. Today’s morning Latvian MEP, Iveta Grigule resigned from Europe for Freedom and Direct Democracy (EFDD) which led to the break-up of Farage’s faction. To have your own EP group it is required to have 25 MEP’s from at least 7 countries, currently Nigel Farage has 24 members in his group – unfortunately for him. As a consequence he will also lose a lot of funding allocated for political groups. Read a full commentary: http://euobserver.com/political/126106

Belgian government under fire in its first week (EUobserver)

Charles Michel is holding the office of Prime Minister of Belgium since a week, but he already has to fight with allegations over his new ministers. The issue is about justifying collaboration with the Nazis. Just read the full context: http://euobserver.com/news/126096

 If you have any comments or suggestions feel free to write us at europensblog@gmail.com, just use the title “Press Review” in your message.   

Press Review #2

Emil Wojtaluk

We invite our readers to see the second Press Review after holiday break. This time I will focus mainly on recent weeks. Having in mind constantly changing situation in Ukraine I focused only on some of the aspects. Since the last press review a lot has happened, including MH17 crash and as follows EU and US sanctions targeted on Russia. The time will show what will happen next. More extended opinion on it from us will appear soon. These are few things that dominated EU political agenda last days and weeks…

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Lithuanian FM: Ukraine will not attack Russian convoy ( EUobserver):

Linas Linkevicius has visited Ukraine where he met with President Poroshenko and Pavlo Klimkin( Ukrainian FM). As he stated: despite “illegal” and “provocative” nature of the Russian convoy Ukraine is not interested to complicate this situation any further and won’t attack the “aid” convoy. Linkevisius thinks that there is no real chance for any diplomatic solution, he also named Russian actions as a breach of international law. He is very much in favor of clear condemnation of Russian actions by the UN Security Council immediately. See it here: http://euobserver.com/foreign/125325

Poland demands WTO challenge over Russia food ban (EUobserver):

Another article, this time it’s connected with the results of reverse sanctions from Russia imposed on EU. The issue concerns a ban on food and vegetables. Poland has made an official request that the EU should take actions against Russia before the World Trade Organization to overturn the sanctions. A written request has been sent on Tuesday, August 19. According to the presented data the value of Poland’s trade with Russia last year was 1 billion €. Poland will be for sure one of the countries hit hardest by the ban, if not the most. The only measure that WTO has is to impose fines for breaches of trade rules. For more info check it here: http://euobserver.com/news/125295

Sanctions Will Hurt Russia’s Rearmament Plans (Independent.mk):

The article presents detailed data on why Russia’s rearmament plans may not be realized in time, the deadline is 2020. Check it here how the sanctions imposed by USA, EU, Australia and Japan will affect Russian defense industry:

http://www.independent.mk/articles/8238/Sanctions+Will+Hurt+Russia%27s+Rearmament+Plans

Sikorski Candidate for EU Foreign Policy Chief (Independent.mk):

On 31st of July Prime Minister of Poland, Donald Tusk has announced the official candidature of Polish FM, Radosław Sikorski for the position of High Representative of the Union for Foreign Affairs and Security Policy. For some member states politicians he is too “strong” towards Russa, for some too soft. Do you think he has a real chance to take this office? It will be decided on 30th of August, last EU summit didn’t bring any solution due to strong opposition toward Italian FM. This is how Independence.mk sees this:

http://www.independent.mk/articles/7896/Sikorski+Candidate+for+EU+Foreign+Policy+Chief

NATO’s Second-Class Members (New York Times):

An article from opinion writer, Sławomir Sierakowski on the importance of Baltic States for the NATO alliance. In his opinion those countries without any NATO bases are second-class members who, in case of aggression would wait for any moves from their allies for weeks or months. He strongly believe, the presence of such bases in Poland and Baltic States is necessary. You can read this interesting article here:

http://www.nytimes.com/2014/08/23/opinion/slawomir-sierakowski-natos-second-class-members.html?smid=tw-share&_r=1

If you have any comments or suggestions feel free to write us at europensblog@gmail.com, just use the title “Press Review” in your message.

Press Review #1

Emil Wojtaluk

 

A brand new series on EUROpens BLOG has just started. I’m Emil Wojtaluk and I’ll be preparing summaries of internet publications for you, focusing on most relevant information concerning EU in world media. My intention is to encourage you to read international press. If you don’t have enough of free time to search for articles alone you’ve come to the right place. I hope you will like it!

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  •  Slovenia’s convicted ex-PM: down but refusing to be out (EUobserver)

An akward situation from Slovenia. Former Prime Minister of this country sentenced for two years in prison for taking bribes but still wants to lead his party. 13th of July is a day for earlier parliamentary elections in Slovenia and Janez Jansa(ex-PM) wants to run for a seat. But he got a court order to go to prison on 20th of June. Slovenia has a problem because its laws do not have any measures in such situations. So despite being in prison Mr Jansa can become a prime minister and run for a seat in national parliament. At least strange, don’t you think? For more on this topic please visit EUobserver: http://euobserver.com/eu-elections/124569

  • EU and US voice concern on reports of Russian tanks in Ukraine (EUobserver)

Another disturbing news from Ukraine and looks like Russians wants to destabilize this region further. Tanks and artillery crossed Ukrainian border on 12th of June. These tanks and other military equipment are being used by Ukrainian rebels. A suggestion is that Russia wants to escalate the conflict because Ukraine and EU will sign a free trade treaty on 27th of June which excludes a possibility for Ukraine to became a member of Eurasian Union promoted by Russia. What’s next? Well, nothing new than threats about economic sanctions possible to impose on Russia which are not changing anything. Ukraine won’t be the only country to sign a trade deal with EU, they will do it along with Georgia and Moldova. And speaking about the last indicated country, Moldova is now being threatened of trade sanctions from Russia if it signs the agreement with European Union. Not surprising looking on Russian policy last months… Check out a full article here: http://euobserver.com/foreign/124597

 

  • The eurozone’s unemployment crisis: Winners and losers (CNN.com)

Ivanna Kottasovaa from CNN has prepared an interesting interactive map, showing “winners and losers” of economic crisis in the eurozone. Which countries suffered the most and which of them remained untouched by a crisis? I’ll leave that to you, you can find it here: http://edition.cnn.com/2014/06/10/business/eurozone-unemployment-interactive/index.html?hpt=hp_c3#index

 

  • Opinion: World is not ready for Google ‚right to be forgotten’ decision (CNN.com)

This opinion concerns a case which was described on EUROpens by our editor Kamil: https://europensblog.wordpress.com/2014/05/19/right-to-be-forgotten-google-case/ .

According to Jodie Ginsberg, CJEU decision is very unclear and leaves too much space for private corporations. A problem that she indicated is that these new laws leaves a decision on what information is considered as “irrelevant, outdated or otherwise inappropriate” to private corporations holding search engines. What is public interest or not is up to private bodies which is not a good decision. There’s also a problem with legal oversight of appeal process. For full opinion please visit: http://edition.cnn.com/2014/05/30/business/google-right-to-be-forgotten/index.html?iid=article_sidebar

  • We need a ‚right to be forgotten’ online (CNN.com)

Second Opinion on the same CJEU ruling as above, this time positive one by Marc Randazza. His main point concerns old information that with time can become “problematic” for people. Author compares United States and Europe, praising this new and very important decision wishing it could be binding in the US. A full opinion here: http://edition.cnn.com/2014/05/14/opinion/randazza-google-right-to-privacy/

If you have any suggestions on what articles or topics should be included in the next Press Review please feel free to inform! We are open for any suggestions, just use the title “Press Review” in your message. Please use our address: europensblog@gmail.com

 

From the Energy Union, to (possibly) better Europe?

Karol Panas

A very interesting matter has been adressed lately in the European Union. The Polish Prime Minister Donald Tusk decided to take voice and raise the matter of Russia – or to be more precise – the matter of Gazprom – the largest extractor of natural gas and one of the largest companies in the world. According to him, the European Union should become free from Russian gas suppy and create it’s own „Energy Union” to „secure its supply and reduce its dependence on Russian gas”. The blueprint he submitted, can be found in the latest Financial Times (22nd April) and as it says, it would establish a single European Union body that would buy gas for the Member States.

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As we can assume from Tusk’s speech, European Union is annoyed of the constant increase in gas prices imposed by Russians. What is more, there are countries who because of this increase feel deceived. A good example of it is Lithuania who not so long ago sued Russian Gazprom explaining that they are paying more or less 35% more then Germans. Also – last month, because of well known Crimean Crisis, already poor Ukrainians living in Kiev suffered from increase of gas price (the Ukraine unpaid gas bills to Russia in 2014 stood at about $1,7 billions). Taking those facts into account, we can clearly see – the desire for change is a major step to avoid their overpriced gas supply. Here it is worth to add that even though every country is negotiating to reach some kind of consensus on the gas price, not everyone of those will be accepted. Because of this this, as we saw in the example above, some countries are paying riddiculously higher prices than the others.

Gazprom is also under surveilance of European Commission since 4th September 2012 on the grounds of „abusing its dominant market position in upsteam gas supply markets”. Right now at least 10 of European Union countries are dependant on Russians on this matter and some of them (and also other European counties) does not even have a chance to change the gas supplier (for example Gazprom owns (or co-owns) 100% of pipes in Moldova).

Of course, like it is also – there are supporters and opponents of a given plan or idea. In this case the opponent was the bloc’s energy commissioner – Gunther Oettinger. In his answer he stated that „gas deals between EU countries and Russia will not be affected even if economic sanctions are imposed on Moscow because of its role in destabilising Ukraine”. He also added that he is against scaling back or even cutting the gas links with Russia in the uncoming years.

Talking about gas, we certainly do not want to forget about the shale gas. Even Donald Tusk, in his blueprint gave a special call to the European Union countries, to as quoted „exploit existing supplies of fossil fuels and the so-far untapped resources of shale gas”. However this raises a very important question – will this be enough to become free from the Gazprom ? In my opinion, no. What is more we still do not really know about the scale of supplies of the shale gas in Europe, so right now it is hard to discuss on this matter. Nevertheless – it is still an option.

To conclude, the idea presented by the Polish Prime Minister is cerainly a good idea to start. As a Pole, I am really glad to know that some major steps are being made – even on such inicial steps as ‚idea’. I really hope to see it blooming in the nearest future – hopefully into something more then just a sketch.

Ukraine – from temporary success to further tensions

Emil Wojtaluk

Maybe you think there have been said enough about Ukrainian situation but I want to look at this problem from another perspective. Since a few months when Ukrainian protests begun we did not think it would develop this way. Recent weeks all world’s media were concentrated on using excessive means of force against the protesters by Ukrainian police at Kiev’s Maidan. I propose you a brief repetition and analysis of Polish contribution to the so called “peace agreement”.

Trigger – the need to integrate with the EU

The crisis has begun in November 2013 when Ukrainian president Victor Yanukovych has rejected the trade deal with the European Union that would put Ukraine on the route of integration. Moreover, Ukrainians had enough of high level of corruption and arrogance of their country’s high authorities. Ukrainian economy needs EU funds and being a part of trade agreement would be the first step to improve its situation. If we look at Polish and Ukrainian economies, there is a significant difference.

 The economy of Poland is now 3 times bigger than Ukrainian. From the moment of Polish political transformation that has started in 1989 this country could derive from Western experiences but Ukraine was left alone under Russian influence area. And Russia is the key player to destabilize the region. Russian foreign policy is aimed at frighten its neighbour and it is time to answer this aggressive policy by reasonable means like strong European statement along with the US President who is like hidden in the shadow without expected reaction. Recent weeks thousands of people have walked on the streets in Ukrainian cities, but the main stage of actions was Kiev. Extremely incomprehensible events took place, police started to shoot to protesters at Maidan with live-ammunition. The final result is about 100 people dead and 200 missing. President Yanukovych was claiming that police forces has nothing to do with that. Take a look at this these horrifying scenes from CNN coverage(viewer discretion advised):

http://www.youtube.com/watch?v=rakmvsVHr-M

Ukrainian Peace Deal” and the role of Polish Diplomacy

Night from 20th to 21st of February was a decisive turn in the crisis. High Representative of the Union, Catherine Ashton has sent three EU foreign ministers to negotiate with the government and the opposition. Foreign ministers of Poland (Radosław Sikorski), France (Laurent Fabius) and Germany (Frank- Walter Steinmeier) came to Ukraine to report the situation and negotiate. But the most important negotiators were Sikorski and Steinmeier because French FM went to China for some planned meeting. On 21st February they announced that the agreement has been reached. What were the points of the agreement? The first point was about restoring Ukrainian Constitution of 2004 and forming National Unity Government. The second about balancing the powers of the President, the government and the Parliament till September 2014(constitutional reform). Then third point was about the presidential election that have to be conducted no later than December 2014. Another point considered taking care of investigation on acts of violence that took place, monitored by the authorities, the opposition and the Council of Europe. Further parts contained many declarations from both sides like: not to impose the state of emergency by the authorities, both parties should refrain from the use of violence, another amnesty adopted by the government, handing over all illegal weapons in 24 hours. The last point of the agreement was a call from Foreign Ministers o Poland, Germany and France to end all violence and confrontation immediately. The whole text of the agreement has been published on Polish Foreign Ministry website(link below the text). Take a look at CNN Interview with Polish FM after negotiations:

What was the result? Violence has ended indeed, no one was killed after signing the agreement but something more has been done. Ukrainian Parliament has impeached President Viktor Yanukovych and new temporary government lead by Arseniy Yatsenyuk has been created. Yulia Tymoschenko has been released from prison. Ukraine shall have early election this year. The Constitution of 2004 has been restored. The efforts of EU Ministers including Minister Sikorski have paid off but just for a few days…

Russian Threat

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On 1 March 2014 the President of Russia requested sending troops to Ukrainian Crimea to “protect the interests of Russia and Russian people living there”. Of course Russian Parliament unanimously approved Putin’s demand to send its troops to Ukraine. Russian presence in Ukraine is illegal, it is a breach of international law and sovereignty of this country. Russian troops are not shooting but started to occupy administrative buildings. Ukrainian government mobilized its troops and called military reservists on Saturday(March 1). Fortunately, at present there is no open confrontation.

But what can the International Community do? Economic sanctions could be imposed by the EU which is also a threat to EU economy. European Union and Russia are economically interdependent and that would cause big problems also to Russia. UN Security Council was ineffective because Russia has the right to veto all resolutions and used that once again. There is also another possibility like Poland’s request to secure its borders by NATO, answering by the same military pressure like President Putin. International Community cannot stay untouched, it is time to show that Russia cannot threat anyone this way again. It is a common tactic when Russia do not have strong enough arguments they go so far as to military intervention. What Ukrainian government should do is to reinstate act respecting of language minorities – Russia invoke the abolishion of this act by Ukrainian Parliament. The World cannot let Ukraine to became the next Georgia where Russia could perform military actions without strong enough reaction of International Political Scene. USA, EU and NATO should act decidedly, I hope without involvement of military actions, though I am afraid words will not be enough. We cannot let Ukraine to be alone!

Read more:

Ukrainian Agreement” of Feb 21, 2014 published on Polish Foreign Ministry website:

http://www.msz.gov.pl/resource/1c430b04-742e-4e3f-83be-a675d3ba2d7d:JCR

Reuters on Polish Diplomacy:

http://uk.reuters.com/article/2014/02/24/uk-ukraine-crisis-poland-idUKBREA1N1BY20140224