“Prava Ludiny” (human rights) monthly bulletin, 2006, #03

The aim of this article is to demonstrate how electoral legislation and the way it is being applied are seriously violating freedom of expression. The freedom to engage in political discussion is a crucial prerequisite for making considered and well-founded political decisions on any public issues. During election campaigns freedom of political debate is in special need of protection..  Yet in Ukraine the situation has become quite the opposite. This freedom has been so significantly narrowed that, in my view, the election campaign has become sterile, bland and quite simply boring.

Section 8 of the Law on the Elections vs. Article 34 of the Constitution: Total victory

A motley array of political parties hoping to get into parliament or into local councils is trying to inveigle voters with promises they may never keep.  Yet it turns out to be impossible to freely discuss the question of confidence in these parties, their previous actions, ideology, programs, and specific personal qualities of members of their candidate lists.  In wishing to protect journalists and the mass media from the pressure from aggressive participants in the elections which we saw in full measure during the 2004 Presidential Elections, the legislators have hurtled to the opposite extreme.  They have banned any campaigning for or against parties (blocs) and the candidates for deputy put forward, in material and broadcasts not agreed with those parties (blocs),  as well as prohibiting the circulation of any information which has features of political advertising, whether free of charge or for a fee, from sources not set down in the law.

As a result, any text or video clip which shows the party or members of candidate lists is subject to strict censorship in case it could be considered to be pre-election campaigning.  Indeed, when media outlets circulate information with critical content about parties or members of their candidate lists, they risk ending up with law suits demanding their closure until the end of the elections. For this reason articles in newspapers and television programs teem with reserve clauses: “This is not campaigning!  This is not campaigning!”  Recently a young woman from one of the Kharkiv production studios who had just prepared a clip on the arrival in Kharkiv for a concert of Poplavsky[1] contacted me.  The young woman with a good musical background could not conceal her ironic attitude to the “singing rector”. There wasn’t a word about the elections. Yet no Kharkiv television or radio company was prepared to accept the story, fearing that it could be considered anti-advertising.  And what can you say? I advised the journalist to not lose heart but to wait it out until after the election campaign, since for all that I saw the absurdity of the situation, you can understand the TV companies.  The newspaper “Chornomorska” was almost closed, and the reason was quite trivial, while the Sumy newspaper “Hromadyany Ukrainy” [“Citizens of Ukraine”] did actually get closed: on 17 February the Sumy Regional Appeal Court suspended its issue until after the elections. The reason given was “a flagrant violation of the law on the elections” which consisted of publishing in one of its issues the first five candidates for the local council and for the office of mayor from the Christian Republican Party with a call to support them at the elections. The publication was indeed not paid for out of the election funds of this party. The founder of the newspaper, the head of the local branch of the Christian Republican Party, tried in this way to help the party and was severely punished.  Was the infringement so very grave that it required the suspension of issue of the newspaper?  Would it not have been possible, for example, to have settled for a warning?  It is impossible not to note that such limitation on freedom of expression would be better termed its flagrant violation.

Two Resolutions from the Central Election Commission are highly revealing for our theme. These were No 716 from 23 February and No. 793 from 2 March based on complaints from the electoral bloc “NE TAK!” [“NOT YES!”]  regarding the actions of the newspaper “Silski visti” [“Rural news”] and Petro Poroshenko. In both cases the claimant alleged violation of its rights and legitimate interests. The Central Election Commission (CEC) considered the question of affiliation of the claimant and the respondents, its authority to consider the claim, the periods for the claim, and then reviewed the merits of the claim confining its review exclusively to electoral law.

The complaint lodged by the electoral bloc “NE TAK!” against the newspaper “Silski visti” was over an article: “Wishing you happiness in the noble cause of serving the Ukrainian people”, printed in No. 18 from 14 February. The CEC states in its Resolution: “the article contains value judgements in the form of political rhetoric, critical, polemic and sarcastic comments aimed at some participants in the electoral process, specifically:

“...Ukraine remembers those who tried to crush “Silski visti” – Leonid Kravchuk (1986) … who cynically trampled on human rights by banning subscription to “Silski visti” on territory in their control… While Leonid Kravchuk, obviously, in the role of sergeant-major of the suppression corps, or maybe to mark the 20th anniversary since the first waving of sabres above the head of the leader of the “Silski visti” staff, I. Spodarenko, began a new assault on  “Silski visti”, announcing a protest campaign against the Presidential Decree No. 60 from 23 January 2006 which honoured Ivan Vasylyovych Spodarenko with the title of Hero of Ukraine.

One can understand the  ex-Communist Party of Ukraine ideologist: the Party henchman doesn’t want the newspaper and its leader, through their very existence in this world, to be a reminder of his dark past. Yet what a banner he raises above himself: the honour of Ukraine!

…The newspaper “Silski visti” really weighs down upon Mr Kravchuk.  It’s clear that if he was lying in his grave, he’d turn in it”.

„…It is you, Mr Kravchuk, who are the leading actor and at the same time the director of the theatre of the absurd.  And the point is not that you are transforming yourself from the role of militant blasphemer to that of God’s Anointed, nor that you are so concerned about the memory of the victims of the Holocaust, but banned the very mention of Holodomor [the Famine of 1932-1933[2]] in Ukraine. At the end of the day you don’t care what you use to trade with, you once went with your image as the first president of Ukraine trying the Cossack card to a candidate for the office of Kyiv Mayor who suited you but wasn’t wanted at all by the people of Kyiv. However that is from the area of morals. Although, what morals?. You when you were President of Ukraine squandered the world’s largest (at the time) Black Sea Fleet.  As President of Ukraine you diddled away up to one and a half billion of people’s savings, casting your own people into abject poverty, unemployment, and also crushing inflation. And you, through Kuchma’s bounty, are “Hero of Ukraine!”

That really is a theatre of the absurd. And you are now trying the card of anti-Semitism and xenophobia, as if forgetting that it’s been beaten and is lying in the rubbish heap, of any use only to down-and-outs who live from such rubbish containers and sometimes even sell things they find.

You, Mr Kravchuk, who are always flaunting your knowledge of the law, supposedly a legal know-it-all. Do you really not know that the accusation against “Silski visti” , initiated by Rabynovych and fabricated by Saprykina, of anti-Semitism, xenophobia and stirring up inter-ethnic antagonism was revoked by the Kyiv Appeal Court?

Your political companions, Viktor Medvedchuk[3] and Viktor Yanukovych, the main pillars of the Kuchma regime, have also got involved in the case. Here, then, it’s all clear.

However at the bottom of the letter which began the campaign against “Silski visti”, and at the same time – on the pre-election wave – against the President of Ukraine Viktor Yushchenko, there are 13 other signatures. …”

The CEC decided that the article contained characteristics of pre-election campaigning and that it had been printed without prior agreement with a participant in the electoral process, and allowed this part of the claim made by the bloc “NE TAK!”  As regards the opinion of the claimant that the article “published some knowingly untruthful and libellous information about the participant in the electoral process – the candidate for the post of State Deputy Leonid Kravchuk”, the CEC did not agree with this assertion, stating that “the claimant has not submitted to the Central Election Commission any proof of the contention that the information which he considers to be knowingly untrue and libellous is such. Therefore this part of the claim is not accepted”.

The CEC ordered the newspaper “Silski visti” to “refrain in future from committing infringements of the Law on the Elections”. Such a decision in my opinion will act like a great “cold shower” and will obstruct the will to freely discuss the qualities of participants in the election process.

In Resolution №793 from 2 March the CEC considered the claim brought by the bloc “Ne tak!” against the actions of Petro Poroshenko. The claim states:

On 21 February 2006  at 19.40 during a meeting with the public of Kherson which was broadcast on the television channel “SKIFIYA” the respondent of the claim, P.O. Poroshenko stated the following: ”There is no alternative – and this is a true political reform. Not the empty waffle initiated by the communists, Medvedchuk, the Regions and Kuchma”.

During this meeting,  P.O. Poroshenko expressed the following opinions with regard to N.I. Shufrych[4]:   “I’m sorry, but I think he’s a clown. I’m pleased that this is already seen by the entire country’s population, and I consider that the political faction that he is leader of is … the one thing that I am ashamed of, that the first President of our country, Mr Kravchuk is at the head of a list which is demanding the abolition of Ukrainian as the state language pr the introduction of Russian, which … well he should be ashamed of himself. And all the others there are clowns. Their time has already passed.  Think of who Medvedchuk was a year ago, or a year and a half ago. He was the lord of the state. Look how he was blown off the scene as soon as real representatives of the people came. Look at what the level of support today is for that political force “NE TAK!” – without any rigging, without bans on speaking out on television – he’s nobody …”

As proof of these circumstances, the claim was armed with a videocassette and compact disk with recordings of P.O. Poroshenko’s addresses. However the CEC decided that the video recording did not contain the opinions given above, and it was not possible to establish that the video material recorded on the compact disk had been broadcast on the television channel “SKIFIYA”.  The candidate for State Deputy of Ukraine, Petro Poroshenko does not belong to the exclusive list of individuals who, according to part one of Article 71, are prohibited from taking part in pre-election campaigning.  His participation, therefore, in pre-election campaigning is not in contravention of the regulations of the Law on the elections. On this basis, the CEC has decided to reject the claim of the bloc “NE TAK!”   

It looks as though the television channel “SKIFIYA” in its coverage of Poroshenko’s meeting with the public of Kherson simply cut out his critical remarks about his opponents, and in this way saved themselves from the sanctions they could have faced, even closure.

We thus find that the Law on the elections, and its practical application as this is developing present the following picture: candidates for the office of Deputy have the opportunity to freely discuss election issues, while journalists and the mass media may only provide coverage of these debates on the basis of agreements with the political parties (blocs), that is, representing their interests. They themselves are not able to freely express their opinions, since any critical comments are treated as pre-election campaigning.  They are therefore forced either to abandon any coverage of the election campaign or resort to serious self-censorship.

Of course the CEC did not consider the regulation by the Law on the elections of pre-election campaigning within the context of observance of human rights and fundamental freedoms. We however will attempt to look at the issue from this angle. In accordance with Article 34 of the Constitution the exercise of freedom of expression “may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice”.

We would note that in this list there is no mention of such an aim for such restriction as “the prohibition of pre-election campaigning without making an agreement with the participants in the election process”< while this aim, in my opinion, cannot be extrapolated from any of the above listed constitutional objectives for limiting freedom of expression.  At the same time, according to Article 64 of the Constitution, constitutional rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine. Section 8 of the Law on the elections therefore contravenes the Constitution. This conclusion should have been reached by the Constitutional Court, however the Verkhovna Rada has done everything it could to block the Court’s work (one would mention in parentheses that there is a temptation to deem all rulings of parliament issued in the absence of the Constitutional Court as illegitimate). 

Article 10 of the European Convention on Human Rights and Fundamental Freedoms which defends freedom of expression contains the same list of restrictions as in Article 34 of the Constitution, but stipulates that they must be necessary in a democratic society.  In order to consider the question of whether the regulation of pre-election campaigning is in keeping with international standards defending freedom of expression, one must consider the principles which have been formulated by the European Court of Human Rights when reviewing claims involving violation of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.[5].

1. Freedom of expression constitutes one of the essential bases of a democratic society and one of the main conditions for both its progress and the self-fulfilment of each individual. Taking into consideration Paragraph 2 of Article 10, acceptable must be deemed not only “information” or “ideas” which are favourably received or considered inoffensive or received with indifference, but also those which offend, shock or irritate.  These are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.

2. The sphere of restrictions, in accordance with Paragraph 2 of Article 10 of the Convention, with regard to political speeches and debates on issues of public concern is not wide. Moreover, the limits of acceptable criticism are broader in relation to the government than they are towards individuals who do not hold public office or, even towards a politician.  In a democratic system the behaviour or mistakes of the government should be subjected to detailed scrutiny not only by legislative and judicial bodies, but also from public opinion.

3. Politicians, of course, have the right to defend their reputation even when they are not acting in a private capacity, however the demands for such defence should be measured against the interests of open debate on political issues since exclusions to freedom of expression must be interpreted narrowly. The boundaries of acceptable criticism are therefore wider with regard to politicians who are appearing in their public capacity than where they concern a private individual. The former inevitably and consciously make themselves available for thorough scrutiny of each word or act, both by journalists and from the entire public, and they should demonstrate the highest level of tolerance, especially when they themselves make public statements which readily lend themselves open to criticism.

4. The principle according to which freedom of expression also embraces information or ideas which can offend, shock or irritate is of course of particular importance in relation to the press. While the press should not overstep the limits established among others “for the protection of the reputation of others”,  its task is, nonetheless to pass on information and ideas on political issues and with regard to other issues which are of general concern.  The press performs a vital role in democratic society, and this is a factor of particular importance for rulings of the Court. The Court has due regard for the fact that journalists’ freedom can include the possibility of resorting to exaggeration or even provocation.  It is for this reason that the national yardstick for understanding this is determined by the interests of democratic society in providing the opportunity for the press to carry out their proper role as of right of “watchdogs of society” in circulating information which reflects serious public concerns. It may be unacceptable in the case of journalists to deprive them via court rulings of the possibility of expressing critical assessments, regardless of whether they can prove that they are correct.

5. In accordance with Article 10 of the Convention the restriction of freedom of expression should be that necessary in a democratic society.  Moreover the adjective “necessary” in the sense used in Article 10 has in mind the existence of “urgent public need”.

In the light of the principles presented above, it would in my view be evident to the European Court that the regulation of the running of pre-election campaigning in the Ukrainian Law on the parliamentary elections is a disproportionate interference with freedom of expression and violates international standards for observing this. While the practice of reviewing electoral disputes entirely disregards the need to adhere to the right of freedom of expression.

Let us assume that the requirement to come to an agreement with the participants of the election process will be removed, and that it will then be possible to hold political discussion without fearing that your media outlet will be closed.  However the discussion will have real substance if its participants are well-informed, that meaning that they receive access to information about political parties and blocs. Since in Ukraine political factions are at the present time perceived largely through the personalities of the politicians who represent them, another question arises which is of importance to our present topic..

Can journalists provide personal information about candidates for the office of Deputy?

At first glance this question could seem rhetorical: they not only can, but they must. The main duty of journalists is after all to keep voters informed as to the course of the election campaign, about the programs offered by participants in the election process, about the personal qualities of candidates. Voters have the right to know everything about those who are standing for office in order to make an informed choice. However this is only at first glance.

According to Article 34 of the Constitution, the exercise of the right to information may be restricted by law, among other reasons, with the purpose of protecting the reputation or rights of other persons or preventing the publication of information received confidentially. .

Article 32 of the Constitution guarantees the right of each person to non-interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine. It also prohibits the collection, storage, use and dissemination of confidential information about a person without his or her consent, except in cases determined by law.  We thus have conflict between two fundamental values, two natural rights – the right to information and the right to privacy. How then is this conflict resolved?

Let us begin with a little about two fundamental principles regarding freedom of information. The first is the principle of maximum disclosure: all information is subject to disclosure, with exceptions being only for a very limiting number of instances. The second principle concerns requirements concerning limitations:  information which is not openly available must be clear, defined narrowly and must allow for checks in accordance with the three-tier test. The latter stipulates: information must concern a legitimate objective; its disclosure would cause significant harm to this objective; the harm from divulging this information must outweigh the public interest in having the information. In the given case,  the legitimate objective is to protect personal information about candidates for the office of deputy.  What is more important here: public interest in receiving the information about the private life of candidates to the post of deputy, or the interest of these deputies in keeping their private life secret?  What harm is more significant – that caused the public by the lack of information about candidates, or that which candidates whose personal data is divulged suffer?

We would reiterate that the adjective “necessary” in the sense of Article 10 of the Convention means the existence of “an urgent public need”.  What would be the urgent public need in keeping secret personal information about candidates for deputy? In my opinion, in the given instance, there is no such need, and one must unconditionally give greater weight to the public interest in knowing as much as possible about candidates for the office of deputy. All limitations on access to information about an individual should be waived when this individual is standing for elected office. Only then will voters be able to receive full information about candidates and make a well-thought out choice. Strictly speaking this means that a public individual who wants to be elected, loses his or her privacy, and must be ready for any facts of his or her biography and private life to be disclosed.  The Law “On information” therefore could do with an article containing, say, the following:

Information about an individual who is standing for elected state office, holds such office or previously held it, does not constitute a state secret or any other type of secret envisaged by law, cannot be categorized as confidential information and may be made public in any instance.

However, Ukrainian legislation contains nothing of this kind, and to move further in our review, it is necessary to address the next question: How is information about an individual (personal data) defined?

Usually laws on protection personal information divide the latter into data of a general nature (last name, first name and patronymic, date and place of birth, citizenship, place of residence) and sensitive personal information (information about ones state of health and medical records, diagnoses, etc, ethnic origin, religious identification, identification codes or numbers, personal symbols, signature, fingerprints, voice recording, photographs, information about salary or other legal income, about investments and banks accounts, real estate, tax status, credit history, criminal records or information about any other criminal, administrative or disciplinary charges brought against the individual, results of exams, professional and other tests, etc). It is forbidden by law to collect, store, use and disseminate specifically this sensitive personal information about an individual without the latter’s consent.

In Ukraine there is no law protecting personal information. Such information is partially defined in Article 23 of the Law “On information”, according to which information about an individual is the collection of documented or publicly announced information about an individual, the main elements of which being nationality, education, marital status, religion, state of health, as well as address, date and place of birth. It is clear that this list of items of personal information is not exhaustive however legislation does not provide any further more precise specification of the concept of personal information.  Article 23 prohibits the collection of information about an individual without the latter’s prior consent, with the exception of cases allowed fro by law. The Ruling of the Constitutional Court of Ukraine from 30.10.1997 No. 5-zp (on the case of Kostyantyn Ustymenko) specified this norm: “Part four of Article 23 of the Law of Ukraine “On information” should be understand as prohibiting not only the collection, but also the storage, use and dissemination of information about an individual without his or her prior consent, aside from cases allowed fro by law, and solely in the interests of national security, economic well-being and human rights and freedoms. Confidential information, in particular, includes information about an individual (education, marital status, religion, state of health, date and place of birth, property owned and other personal data)”.

Thus Ukrainian legislation lacks any clear and unambiguous definition of personal information. We can observe the ensuing clash between the right to information and the right to privacy.  Article 47 of the Law “On information” envisages liability for the use and dissemination of information about the personal life of an individual without the latter’s consent by a person who is the holder of the relevant information by virtue of fulfilling his or her official duties. Article 3 of the Law on the Press directly prohibits the use of printed mass media sources to “intrude in citizens’ personal lives”.  The law in fact does not give a definition of this concept. The Law “On television and radio broadcasting” makes it illegal for  television and radio broadcasting organizations to publish information about the private lives of individuals without their consent if the said information is not publicly necessary (paragraph and Article 59). The concept “publicly necessary information” is also not defined by the law, and disputes as to whether the circulated information is in fact publicly necessary are adjudicated by the courts.

In accordance with Article 182 of the Criminal Code, punishment in the form of up to three years limitation of liberty is envisaged for the illegal collection, storage, use or dissemination of confidential information about an individual without the latter’s consent or the disclosure of this information in a public speech, a work which is publicly demonstrated, or in the mass media.  Recently the State Deputy, Stepan Havrysh, put forward a draft law which would introduce amendments to the Criminal and Criminal Procedure Codes, as well as the Administrative Offences Code.  In particular it was suggested that criminal liability under Article 182 should be increased to three years deprivation of liberty, and a second part of the Article was introduced where the same acts were carried out by an official either again, or with the prior conspiracy of a group of people.  Here the maximum penalty was deprivation of liberty for up to 12 years, and Parliament even passed this law on 12 January this year, however the President used his power of veto.  The actual crime under Article 182 is not defined clearly and exactly, and it is not necessary to have a doctorate in law to see this. In my opinion, the amendment to Article 182 of the Criminal Code is calculated specifically to avoid journalist investigation into the abuses committed by candidates for the office of deputy when they occupied high-ranking state positions in Kuchma’s regime. If this Article came into force, it would put serious obstructions in the way of exercising freedom of expression since the main perpetrators of this crime could be “inconvenient” journalist who, in connection with their professional activity, collected information for their publications.

The question as to whether the right of the public to have information about a public individual outweighs the right of the given individual to keep information about his or her private life secret, is decided by the court.  The three-tier test is partially reflected in Part 11 of Article 30 of the law “On information”: “Information on restricted access may be disseminated with the consent of its owner if the information is of public significance, that is, if it is the subject of public concern and if the right of the public to know this information overrides the right of the owner to its protection”.  However we are not aware of any occasions where the courts have made use of this norm.

It is thus possible to draw the conclusion that Ukrainian legislation and practice do not correspond well with European norms. For example, the CEC considers information from declarations about property and income of candidates and members of their families submitted to the CEC along with other documents for registration to be confidential, although it is manifestly clear that this information is needed by the public. It is interesting that in this question there is a significant different in the laws on the elections to parliament and to local councils. The Law on the elections to local councils binds candidates to these councils or candidates for the office of village, settlement and city heads to submit to the electoral commissions declarations on their property and income for the past year, as well as information about the property and income of members of their families. The Law on parliamentary elections, however, only demands that the candidates themselves provide such declarations about their property and income, and members of their families are not mentioned.

Access to the dossiers on candidates for the office of deputy is inseparably linked with confidence in these candidates. In illustration of the importance of access to information about public political figures, I would give the following example. At an evening in memory of the poet Vasyl Stus in Kyiv on 5 September 2000 (15 years from the day Stus died in the Perm Special Regime Labour Camp No. 36), Yevhen Sverstyuk in his brilliant speech named Viktor Medvedchuk, who had been Stus’ lawyer at his final trial in 1980[6], a symbol of the KGB-style advocacy. I believe that Yevhen Oleksandrovych exaggerated in this. Medvedchuk was a typical puppet in that farce with its 100 percent predictable outcome. However another question arises, “question which we can’t hide from”. Lawyers appointed in political trials could not, as a rule, be connected with the KGB – a repressive punitive body which viciously persecuted human rights activists. Today, when the issue of politicians’ morals is acutely relevant, is it possible for us to trust Medvedchuk who held high-ranking posts and whose plans are no less ambitious? In my view, people who worked in that punitive body and persecuted dissidents or assisted in their persecution should get the hell out of all high-ranking positions. At the All-Ukrainian Civic Academic and Practical Conference “The Referendum and us: From a civic stand to civic actions” on 18 March 2000, one elderly man stated that he had worked in the KGB and that Medvedchuk had been his agent. This may have been the truth, or it may be true that this man deliberately lied in order to blacken the name of a political enemy.

We must, therefore, know everything about people who are standing for election to parliament or other elective bodies, and our political establishment needs to pass through such a purification process as checking on personal involvement in communist crimes.  We are not even talking of lustration proper, but rather of a checking of information, that Mr X did not personally take part in the persecution of dissidents, overt or secret.  Such a process of scrutiny was carried out in the majority of post-communist countries of Central and Eastern Europe, and it helped raise confidence in politicians and a mood of conciliation within society.  It is therefore necessary to create the mechanisms for access to the archives of the KGB and to receive information about the participation of this or that individual in political repression.  And Mr Medvedchuk should have the greatest interest in this (the presumption of innocence binds us to consider him innocent of any crimes unless the contrary is proven)., if after all the accusations are unfounded.

Similarly information regarding any criminal record of candidates or any criminal investigations  is not made public.  And when media outlets provide information about such matters, they risk being taken to court and demands being lodged that they be closed until the elections are over. This has been seen in the conflict over the publication by the Police of information about those people on the candidate lists who figure in criminal cases. .We need therefore to consider another question.

Can state officials provide details about the personal information of candidates for the office of deputy?

Article 3 of the Constitution declares the main duty of the state to be “to affirm and ensure human rights and freedoms”. Therefore such a duty is also to ensure the right to information guaranteed by Article 34, and in this way state officials are bound to make available information which is in their possession. Yet Article 71 of the Law on the elections unambiguously prohibits state officials and functionaries of state executive bodies and bodies of local self-government, law enforcement bodies and courts from taking part in re-election campaigning, except in those cases where the relevant state official or functionary is him or herself a candidate for the office of deputy. The appearance of such a norm was the outcome of the unfortunate practice of using administrative resources which we all witnessed during the last elections. Yet is the publishing of information about candidates for the office of deputy always pre-election campaigning?  Practical experience as of the present day indicates that the courts consider the publication of any negative information about candidates for the post of deputy to be pre-election campaigning and the ban on state officials carrying out pre-election campaigning overrides any considerations in favour of protecting freedom of expression.  It would appear that the Central Election Commission is also inclined to take the same point of view (cf. the above-mentioned Resolution of the CEC from 23 February 2006 No. 722 regarding the complaint lodged by the electoral bloc “NE TAK!”)  In my opinion this is an outcome of the consistent actions of the Minister of Internal Affairs, Yury Lutsenko and his staff, who have throughout the election campaign constantly and insistently made public information about the criminal records of any candidates for the office of deputy, as well as any criminal investigations regarding these people or cases where they are wanted by the Police for questioning, despite judgements issued to restrain them by the CEC and the courts.

Who then is right? The staff of the Ministry of Internal Affairs (MIA) or the candidates for the office of deputy from the candidate lists of a number of parties and blocs, or the courts who are allowing such claims brought against the actions of the police?  We will endeavour to answer this question.

On 27 December 2005 Yury Lutsenko during a chat session on the website “Ukrainska Pravda”, in answering a question from one of the participants, stated:

„ As a state official, and in accordance with the law on the elections, I do not have the right to campaign for or against any candidate list … I would therefore like to emphasise that I am informing the voter about the presence or absence of interest from our ministry to individuals who, in a manner which I had no connection with, were chosen for this or that candidate list. I would specifically inform people that in the candidate list for the Party of the Regions I found 24 names of interest from the first hundred. In the Lytvyn People’s Bloc – 16 out of one hundred, in the bloc “NE TAK!” – 16 out of fifty.  However I had particular joy from the candidate list of Natalya Mykhailivna Vitrenko: among her like-minded candidates there was practically the whole team of our grand – client Kurochkin[7] in full – his bodyguard, the ex-director of the market “Ozerka”, and the manager, and the members of the armed racket gang “Netrikha” (in 2000 a “Mukha” grenade discharger, automatic rifles, grenades and explosive plastid were confiscated from members of this gang).  This list also includes a person on the international wanted list, Vartsava (the ex-Chief of the Transcarpathian Police), two very colourful ex-chiefs of customs – Kaletnyk and Kozak, and any number of other individuals of interest to the MIA. In general, I suspect that after the publication of this list, for the brotherhood competition was created to the only party which is thus far close to them.”

In an interview for the newspaper “Fakty” he again named the same figures and stated the following:

“I don’t know how long I have in my present post, but I would like to take the Police through the elections without interference in the political process. To not let them be dragged into grubby games by politicians from any side. I reserve the right to inform the public about which parties and blocs have candidates who are of interest to the MIA” (“Fakty”, 6.1.2006).

On 10 February the Pechersky District Court in Kyiv allowed the claim brought by the bloc of Natalya Vitrenko “Narodna opozytsiya” [“People’s opposition”] and declared the actions of the Minister of Internal Affairs in carrying out pre-election campaigning in the form of discussing the political and personal qualities of the candidates from Natalya Vitrenko’s bloc unlawful.

One can see from the text of the court’s Resolution that it virtually did not consider the question of whether the information published by the internet websites “Ukrainska Pravda” and “Censor.NET”, and by the newspaper “Fakty” were true. In the concluding part of the Resolution there is not a word on this subject. In issuing the Resolution, the court was guided solely by the Law of Ukraine «On the election of State Deputies of Ukraine” and by the Code of Administrate Justice, and there was not even a mention of the normative acts of information legislation. It is typical that the concluding part does not contain the demands with relation to the third parties (the mass media) which the claimant had sought. The court thus confined itself exclusively to considering the question as to whether the statements made by Yury Lutsenko could be considered pre-election campaigning, and whether he as a person holding state office had the right to engage in this.

Stating  that Yury Lutsenko in his interviews “did effectively carry out pre-election campaigning through his public negative statements about the political, business and personal qualities of candidates for the office of State Deputy of Ukraine, included in the candidate lists of the electoral bloc of Natalya Vitrenko  “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”), the court relied on the Resolution of the Central Election Commission from 5.01.2006 № 73, “in which it declared that the above-mentioned actions contained elements of pre-election campaigning”.  However the relevant fragment of the Resolution of the CEC is somewhat different:

«The Central Election Commission considers that the above-mentioned statements by the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, contain some features of pre-election campaigning.

At the same time, as is clear from the text (online) of the press-conference in the Internet publication “Ukrainska Pravda” of the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, he answered a specific question “Why do you only criticize the candidate list of the Party of the Regions for the presence of clients of the MIA?”

From the text of the answer given by the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, to the question put to him, it is not possible to unambiguously conclude that pre-election campaigning was carried out for the purpose of encouraging voters to vote for or against particular participants in the electoral process.”

The CEC were thus not as categorical in their judgement of Lutsenko’s statements as the panel of judges of the Pechersky  District Court.  The panel of judges effectively repeated the first paragraph of the extract given here, leaving out the word “some”.  It should also be noted that Yury Lutsenko spoke about candidates for the office of deputy who had figured in criminal cases regardless of which party’s or bloc’s candidate lists they were on. It is therefore, I believe, incorrect to assert that Yury Lutsenko campaigned against certain political factions giving a negative assessment of the qualities of the candidates for deputy included in their lists. Moreover, in qualifying the actions of Lutsenko as pre-election campaigning, the court needed to prove that his intention had been to persuade voters to vote against the claimants. And as far as I can see, Lutsenko’s remarks did not have such an objective.

For these reasons I consider that the conclusion of the court that Lutsenko was engaging in pre-election campaigning in contravention of Article 71 of the Law on the elections was wrong.

In my opinion, Yury Lutsenko, as a state official was simply obliged to inform the voters about the involvement of candidates for the post of deputy in criminal cases which were being investigated, so that the voters could make an informed choice.  Without going into the issue of moral principles, he was forced to such a step by Article 3 of the Constitution, the demand to conscientiously fulfil his state duties (Article 5 of the law “On the Civil Service”), the obligation to avert crimes, to ascertain the reasons and conditions which encourage the committing of offences, to use, within the boundaries of his authority, measures to eliminate such causes (Article 10 of the Law “On the Police”). It is clear that people who figure in criminal cases under investigation may create a potential hazard if they are elected to the Verkhovna Rada of Ukraine and are protected by immunity status.  The Minister of Internal Affairs therefore simply had no choice but to warn voters about such candidates, and the assertion of the court that such actions are a violation of Article 10 of the Convention are, I believe, mistaken.

From all this it follows, in my view, that the court is violating the right to freedom of speech of Yury Lutsenko, and also the right to information of all voters by prohibiting Lutsenko from “discussing with the public the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the PSPU and the Party “Rusko-Ukrainian Union” (RUS”), nor to act as an expert on these issues”.  The Court entirely refrained from considering the issue of whether the published information about certain candidates for deputy being implicated in criminal cases was an intrusion into their private life, and how legitimate it was to publish through the mass media personal information about candidates.

On 17 February the Kyiv Appeal Court accepted the appeal lodged by Yury Lutsenko and revoked the Resolution of the Pechersky Court from 10 February.  At the same time it decided that the statements made by Lutsenko about the presence in the candidate list of the bloc of Natalya Vitrenko of people close to the Russian criminal figure Kurochkin are untrue.

During the last two weeks of February the Ministry of Internal Affairs provided more and more information regarding candidates for the office of State Deputy who figure in various criminal cases. For example, on 22 February the MIA issued information that 10 people on the candidate lists had current criminal records, 11 members of the lists of political factions are wanted for questioning by the Police, and 37 individuals have had criminal cases launched, where decisions have yet to be taken, while with regard to 41 other individuals criminal cases have been passed to the court.

Of the 37 criminal cases launched against candidates for State Deputy, 15 cases were brought by Internal Affairs agencies, and 22 by the Procurator.

According to information from the MIA, one candidate from each of the following candidate lists has a criminal record: the Opposition bloc “NE TAK!”, Natalya Vitrenko’s bloc, Yury Karmazin’s bloc, the bloc “Derzhava – Trudovy soyuz” [“The State – Labour Union”], the bloc of the parties “Za Soyuz” [“For the Union”], the bloc NDP [the National Democratic Party of Ukraine}, the party “Nova syla” [“New Force”], the all-Ukrainian association “Svoboda” [“Freedom”], and two candidates from the candidate list of Lazarenko’s bloc.

There are two candidates on each of the following candidate lists who are wanted for questioning by the Police: the Opposition bloc “NE TAK!”, Natalya Vitrenko’s bloc, the bloc “Derzhava – Trudovy soyuz”, and one from botth the bloc “Vlada narodu” [“Power to the people”] and the Party “Nova syla”.

Criminal cases where a decision has yet to be taken have been launched against 5 members of the candidate list of Yulia Tymoshenko’s Bloc (BYuT), and 5 from the bloc “NE TAK!”  There are 3 in each of the following: Lytvyn’s Bloc, “PORA-PRP” [the coalition of the civic party PORA [It’s time] and the Reform and Order Party], and “Sontse” [“Sun”]; two each in Lazarenko’s bloc, Yury Karmazin’s bloc and the Party for Environmental Rescue “Eko +25%".  There is also one candidate in each of the following: the Party of the Regions, the bloc “Nasha Ukraina” [“Our Ukraine”, the bloc “Yevhen Marchuk – Unity”, the Communist Party, the Party “Vidrodzhennya”, the bloc “Derzhava – Trudovy soyuz”, the Liberal Party, the Party “Nova syla”, the bloc “Patriots of Ukraine”, “the Union. Chernobyl. Ukraine”, the Party “Tretya syla” and the Party “Trudova Ukraina” [“Working Ukraine”].  

Criminal cases have been passed to the courts against three people from the candidate lists of BYuT, Lytvyn’s Bloc, the bloc “NE TAK!”, Lazarenko’s Bloc, the Party  “Tretya syla” ; against 2 from the Party of the Regions, the bloc “Nasha Ukraina”, Vitrenko’s bloc the bloc “Derzhava – Trudovy soyuz”, the Party “Nova syla”, “Selyanska partiya” [“The Rural Party”], the Ukrainian Conservative Party; against 1 each from the bloc of the parties of Boris Oliynyk and Mykhailo Syrota, the Communist Party, the Green Party, the Yury Karmazin Bloc, the Party "Эко+25%", the Party "Zelena planeta" [“Green planet”], the Ukrainian People’s Bloc of Kostenko and Plyushch, the Party of Pensioners, the Party of Putin’s Policy, the bloc “PORA-PRP”, the bloc of non-party affiliated candidates  “Sontse”, the Christian-Social Party.

Thus according to information from the MIA candidate lists with the largest number of candidates having problems with the law are  the Opposition bloc “NE TAK!” (11), The Bloc of Yulia Tymoshenko (8), Lazarenko’s bloc (7), Lytvyn’s People’s Bloc (6), the bloc “Derzhava – Trudovy soyuz” (6), The Party of the Regions (5), Vitrenko’s Bloc (5), the Party “Nova syla” (5), the Yury Karmazin Bloc (4), , the bloc “PORA-PRP” (4), the bloc of non-party affiliated candidates  “Sontse” (4), the Party  “Tretya syla”  (4).

The law enforcement bodies have no issues with members of the candidate lists  of the Socialist Party, the Party “Vpered, Ukraino” [“Forward, Ukraine”], the Party “European Capital”, the All-Ukrainian Party of People’s Trust”, the Party of Patriotic Forces, the Party of Social Defence, the Popular Movement for Unity, the Ukrainian Party of honour, the struggle with corruption and organized crime, the Party “Viche”, the Party of National and Economic Development and the Ukrainian National Assembly.

When asked why no candidates had been found in the Socialist Party to which the Minister is close, he replied that he had carried out the monitoring of the list before registration and had recommended excluding questionable individuals from the list. However when information of this kind reached the local level, then socialists appeared and the number of candidates to local Councils about whom the MIA had concerns, increased significantly, and the number of law suits to the Minister rose.

In my opinion, the above details strengthen the argument against the Minister having had any aim of making voters voter “for” or “against” any particular participant in the election process, that being the necessary condition for qualifying his actions as pre-election campaigning. Indeed as far as identifying potential criminal elements in the candidate lists, all parties (blocs) were equal for the MIA. However the position of the CEC in assessing the actions of the Minister of Internal Affairs changed in another direction.

In the Resolution No. 722 from 23 February, the CEC, having punctiliously presented the grounds on which the Police have the duty to inform voters, the grounds for limiting the publicizing of information about an individual, having mentioned the special features involved in disseminating information about individuals standing for office as State Deputy, came to the conclusion that the Police within the bounds of their competence have the right to disseminate information about an individual without the consent of its own in cases where this information is of public significance, however they should act at the same time bearing in mind the special limitations envisaged by legislation on the elections.  And since the CEC considers the dissemination of such information to be pre-election campaigning, it partly satisfied the claim of the bloc “NE TAK!” and bound the Minister to refrain from infringing current electoral legislation and violating the rights of participants in the election process.

Thus the CEC recognized a clash between the ban on state officials carrying out pre-election campaigning and their duty to ensure the right of voters to information, but decided in favour of the ban on pre-election campaigning. In my view, this decision was wrong in that it runs counter to both the Constitution and international standards. And therefore, if before the elections on 26 March Yury Lutsenko loses the next civil suits lodged by political factions against his activities in both general and appeal courts, I would advise him to turn to the European Court of Human Rights. It will be an interesting case when the Minister of Internal Affairs complains that the state is violating his rights!

[1]  Mykhailo Poplavsky was a popular singer. He is now a State Deputy in the Verkhovna Rada and the Honorary Rector of the Kyiv National University of Culture and Art.  (Most definitely not campaigning! – translator’s note)

[2]  Holodomor was a deliberately induced  famine which killed between 5 and 10 million people. It was largely ignored in the West, and consistently denied throughout the Soviet period.  (translator’s note)

[3]  Viktor Medvedchuk was Head of the Presidential Administration in Kuchma’s regime and wielded considerable power. (translator’s note )

[4]  Nestor Shufrych is a member of the Social Democrat Party of Ukraine (United), which is one of the parties in the opposition bloc “NE TAK!”.  He is no. 4 on the candidate list below ex-President Kravchuk and ex-Head of Kuchma’s Administration, Viktor Medvedchuk  (translator’s note ).

[5] More details can be found in: Wolfgang Pickert: European standards on freedom of expression (the reference here is to the Ukrainian translation).

[6]  It is worth remembering that Medvedchuk was appointed by the state against the wishes of Vasyl Stus.  Yevhen Sverstyuk says that Medvedchuk, rather than defending Stus, spoke against him.  (translator’s note )

[7]  Maxim Kurochkin is a Russian businessman with highly questionable connections. He actively helped Yanukovych during the 2004 Presidential elections and was executive director of the Russian Club, connected with Gleb Pavlovsky, the Kremlin political technologist, another figure active in helping the pro-Kuchma candidate.  Kurochkin is now living in Moscow. (translator’s note )

The Nation should know who is behind the mass media

Viktor Yushchenko

(from a speech at the First Congress of “The People’s Union Our Ukraine” political party

Clearly the desire to know who owns leading television channels is entirely natural, particularly in the light of the coming elections. Ten years ago when I was writing my thesis in the Institute of Journalism, the word “propaganda” was already considered a shameful relic of the Soviet era (although the concept itself never dies).  A euphemism had to be used – “The influence of publicist television programs on the formation of public opinion”.  No other means of mass information can compare in its powers of persuasion to television with words and images both working to achieve a common goal. The people who have influence on a channel’s position do not necessarily even need to break the law by giving more broadcasting time to one political faction or another. If, for example, during an interview with a candidate from “the other side”, you simply place the camera 30 centimetres below his or her head, then s/he will be looking down on the voter, and will appear arrogant and supercilious. Yet no monitoring team will record any infringement of candidates’ equal chances. No need already to mention the legendary 25th shot[1]. 

In order to assure myself that there were no dubious individuals capable of such tricks among the founders of our television companies, I decided to find out who has established whom in our television and radio broadcasting realm. And not only to satisfy my personal curiosity, but also for the readers of my own bulletin “Prava Ludyny” [“Human rights”.

This type of information cannot be found just lying about on the street. Our legislators, following some strange logic only they can understand, have only bound the printed mass media to inform their readers about their publisher, founder, address and other such intimate details.  Whereas television companies are required only to show their viewers their logotype, and even there, only on programs they themselves have produced.

Anyway, my search for founders began in July 2005.  In order not to pester each television and radio company (TRC), it was logical to first of all approach the National Television and Broadcasting Council of Ukraine which issues all broadcasting licences.  However, the Executive Secretary, V. Lyasovsky, politely explained that they keep only copies of the founding documents of broadcasters which may differ from the originals, and that therefore it would be better to approach the TRC themselves for more accurate information.  I was, of course, silently bemused as to how, given such discrepancies, the National Council could perform its direct duty, this being to oversee, for example, the percentage of foreign investment in the statutory capital of the said TRC.  However I went where I was told to go …

I sent courteous letters which effectively boiled down to the formula: “Gjulchatai, reveal your face!”[2] to  «1+1», «ERA», «Inter», «Novy kanal» [“New Channel”], «CTB», «ICTV» and to both broadcasters of “5 kanal” – “Express-inform” and “NBM”.  My main rationale was the interest of my readers and of society as a whole.

And I even received a few replies. Y. Morozov on behalf of «1+1» sent me back to where I had come from – to the National Council, as well as to the Ministry of Statistics. However I did not go to the latter since there has not been such a ministry in Ukraine since 1997.  The Director of “Express-inforrm” (“5 kanal”, I. Rayevsky, replied that I was not a regulatory, nor a law enforcement body, and that they were therefore not obliged to inform me who their founders were.  He also explained that in actual fact neither my readers nor society as a whole would be at all interested in knowing such details.

However the most original response was sent by the Closed Joint Stock Company “Ukrainian Independent TV-corporation” (Channel “Inter”).  The Manager of the general department, T. Y. Chystyakova, asked me to confirm my intention of paying, according to current hourly rates, for the work of the lawyers’ firm “Konnov and Sozanovsky” which on behalf of the TRC would prepare a legally correct response to my request for information.  Following receipt of my written agreement, Tetyana Yurivna even kindly provided me with the address of this lawyers’ firm where I would be given a bill for such services.  Unfortunately, however, there has been no reply from the first itself, and I have been waiting already for two months.

It is possible that the management of “Era”, “Novy kanal” «STB», «ICTV», «NBM» also told me where to go, but if so, they did this verbally since I received no written response to my journalist’s request for information.

At my law faculty, while I was writing my Master’s thesis on the topic «Guarantees for safeguarding citizens’ constitutional right to information”, at the theoretical level the mechanisms for these safeguards seemed almost perfect.  Actual reality, unfortunately, very often did not even stand near the theory.

The Kyiv City Department of Statistics silently ignored my lawyer’s request for information regarding the founders of three television and radio companies, although my right as a legal counsel to make such requests is clearly guaranteed by Article 6 by the Law “On the Bar”.  It would have been possible, of course, to hurl the new Code of Administrative Justice of Ukraine at this department – as a preventive lesson to stop them violating civil rights, in particular, the rights of lawyers, however another opportunity arose to gain practice in the subtleties of the administrative process.

The Law of Ukraine “On the State registration of legal entities and individuals engaged in business activities”  came into effect on 1 July 2004.  This law introduces truly revolutionary innovations. In particular, according to Article 20, anyone can make an approach in the manner set out to any executive committee (district administration) and within 5 days for a certain fee receive a copy of the relevant extract from the Single State Register relating to any legal entity whatsoever.  The single failing of this law is that responsibility for its implementation is placed with the State Committee of Ukraine on regulatory policy and business activity.  The Committee is to approve the form of the extract and the fee payable for its issue. Almost a year and a half since the Law came into force the Committee has finally managed to prepare the relevant Order, but is so far still agreeing it in the recesses of the Cabinet of Ministers, and perhaps in the Ministry of Finance.  Certainly such lack of haste by bureaucrats cannot serve as grounds for violating the right to receive information (an extract) guaranteed by the above-mentioned law, since after all, according to Article 19 of the Constitution of Ukraine bodies of state power and their officials are obliged to act only on the grounds and in the manner envisaged by the Constitution and the laws of Ukraine (and this Law, I would repeat, has been in force since 1 July 2004).  Having paid, at my own discretion, 17 UH for my requests to issue an extract about each of the three TRC and having received rejections, I have since then been talking about my rights to the bureaucrats of three district administrations in three courts. In the last few days, at the regular session of the Pechersky District Court, the representative of the State Committee on Business Activities promised that the system would really be working within 3-4 weeks.  To be on the safe side, of course, it would be better to double this period, that is, right before the elections when it will already be late to find out which legal entities or individuals stood on the other side of the screen, helping voters make a correct choice or manipulating our consciousness.

Therefore, unfortunately, as so often happens in this country, I was forced to use unofficial access to the Single State Register. Out of gratitude to those readers who have read about my trials and tribulations up to this point, I present details of the founders of the main TRC as of 20 January 2006 (all founders are residents of Ukraine, unless stated otherwise in the brackets).

1. The Closed Joint Stock Company “Ukrainska Nezalezhna TV-korporatsiya” [“Ukrainian Independent TV-Corporation”

 - Russian Public Television [ORT] (Russia),

 - The Ukrainian Association for Economic Cooperation and Development “Dilovy svit” [“Business world”] ,

 - The Limited Liability Company «Pegas telebachennya»

2. “The television studio - limited liability company “Studio 1+1”

 - Oleksandr Rodnyansky,

 - “Inozemne pidpryemstvo [the foreign enterprise] “Inter Media” (resident of Ukraine).

3. The Limited Liability Company “International commercial television and radio company” (ICTV):

 - The foreign investment enterprise «Royal Capital»,

 - The Limited Liability Company «Tsentralny Moskovsky depositary” [“Central Moscow Depositary” (Russia),

 - A subsidiary company “Promidiya”,

 - A subsidiary company «Agency of information technologies»,

 - The small innovative enterprise «Interpipe».

4. The Closed Joint Stock Company «Novy kanal» [New channel]:

 - The foreign investment enterprise «INNOTEX»,

 - The Closed Joint Stock Company «NK-HOLDING».

5. The Closed Joint Stock Company «International Media Centre – STB»:

 - The Closed Joint Stock Company «International Media Centre”,

 - The Company “Shachar Enterprises” (USA),

 - The corporation “Internews netyouron “k” (USA).

6. The Closed Joint Stock Company «Telekompaniya TET»:

 - Ihor Surkis,

 - The Limited Liability Company «Investprojekt»,

 - The Added Liability Company «ОМЕТА private»,

 - The Company «Suniflеon Holding Limited»,

 -  The Company «Shonest Investments Limited»

(the latter two are registered at the same address on the Island of Tortola (The British Virgins Islanand).

7. The Limited Liability Company «Television and radio company “Express-inform” – “5 kanal” [“Channel 5”]

 - The Closed Joint Stock Company «Ukrainian Industrial and Investment Concern”,

 - A subsidiary company «Expressinform-studio».

8. The foreign investment enterprise – limited liability company «Television and radio company «NBM» – “5 kanal”:

 - The private company “Cocoa and sugar international” (Belgium),

 - The Limited Liability Company «Transat-Brok».

9. The Limited Liability Company «Television Studio «Sluzhba informatsiyi” [“Information Service”] – channel NTN:

 - The Limited Liability Company «Kapitalinvest»,

 - An unnamed legal entity with the identification code 32727508

10. The Closed Joint Stock Company “Nashe radio” [“Our radio”]:

 - The company «INTERUKY HOLDINGS LIMITED» (Cyprus),!

 -  Andriy Olehovych Volkov,

 -  The Closed Joint Stock Company “Alpha Capital”.

The present author was also able to establish the shares of each of the above-mentioned founders in the relevant statutory capital , however let us train the founders of TRC to be open in gradual steps …

Of course the majority of these names would say little to those not in the picture. Very often the buying and selling of television companies escapes the notice of the National Council or Statistics bodies – when it is not the actual legal entity – the holder of the licence being bought, but its founders (actually its beneficiaries). However when Article 20 of the Law on State Registration finally begins functioning, it will be possible quite officially to unravel the whole story right up to the specific and so familiar oligarchs or their offshore companies.  For example, the co-founder of the firm “Interpipe” which is listed among the owners of “ICTV” is Mykhailo Aronovych Pinchuk, father of  the State Deputy V. Pinchuk, who also happens to be the son-in-law of Leonid Kuchma.  The Deputy’s mother – Sophia Josypivna – is also not one of the small fry in “Interpipe”

The EU, incidentally, considers that control by politicians over the mass media seriously jeopardizes pluralism. It demands that member states prohibit such “special interests” (see, for example, the Resolution of the European parliament from 22.04.2004 “On the risks of violations in the EU … of freedom of expression and information»).

I would once again remind the reader that at the moment the information presented here is considered unofficial, and its accuracy depends directly on the quality of the cognac as the currency for payment. Although as a result of this epopee I gained what I had wanted to find, the legal mechanism clearly lost out to the cognac, which is not cheering.  After all, according to the supplement to the Recommendation of the Committee of Ministers of the Council of Europe № R(94)13 from 1994, the public should have access to key information about the mass media in order to formulate their opinion as to the quality of the information being provided (for example, it would have been useful for citizens of Ukraine back before the gas crisis to have know who really controlled the Ukrainian channel with the highest rating)[3] It was therefore suggested that member-states of the Council of Europe introduce amendments to national legislation ensuring the transparency of their mass media. Thus, the closed nature of information about national television and radio companies is one little detail which makes it impossible to call Ukraine a European state.

PS. If anyone has decided that I simply had nothing else to do with myself for the last 6 months, I would mention that the initiator of all the attempts, both those mentioned, and those omitted, to bring TRC into the open was the Ukrainian Helsinki Human Rights Union which was acted within the framework of a project for the Foundation of Strategy Issues in the defence of human rights and fundamental freedoms, which is financed by the International “Renaissance” Foundation.

[1]  This refers to so-called subliminal images and messages (translator’s note)

[2]  A famous line from the Soviet film classic “White desert sun”, where one of the heroes is searching for his lost harem. (translator’s note)

[3] Tthe Ukrainian channel with the highest rating -  “Inter” – is allegedly under the control of the Russian industrial group Evrazholding  (translator’s note)

The level of monitoring penetration by the Security Service of Ukraine (SSU) of the Internet at the present time is from 50 – 70 %.  These figures were given on Thursday at a press conference by member of the Board of the Internet Association of Ukraine, Oleksandr Olshansky.

“The list of formal interceptions - those which comply with norm of Order No. 122  and have the appropriate sanction – are given on the website of the State Committee for Communications. You can get on their site and take a look at who’s listening in, and who’s not listening.  Or at least, who’s openly stated that they’re doing so. Besides them, however, there are of course the ones who aren’t open about it”, Olshansky notes.

“I think if one tries to estimate the level of monitoring penetration by the SSU of the Internet, then at the moment it comes to somewhere around 50 or 60%, or even perhaps 70. 

This trend is especially pronounced in the regions, where the figure can rise to 90%  It’s because clearly small companies in small regions can’t provide the same resistance as big organizations”.

At the same time, according to the Chairperson of the Board of the International human rights association “International League for the Defence of the Rights of Ukrainian citizens”, Edward Bahirov, as well as the SSU, other state bodies also have the authority to check, monitor and  intercept communications on the Internet, namely the Ministry of Internal Affairs, the State Border Guard, the Customs Service, the Tax Service and others.

The experts also point out that the information obtained through the course of such undertakings is not always used exclusively in the interests of the state.

«You go onto the “black market” and look at how much confidential information is being sold there, maybe commercial information about a company if this could be of interest to another company it competes with, its supplier or others”, the Chairperson of the Committee on Issues involving Telecommunications for the Ukrainian Association of Industrialists and Businesspeople, Valery Pekar commented.

The Order of the State Committee for Communications from 17 June 2002 No. 122 approved the procedure for making up and keeping a list of operators who provide access to global networks passing on information to state executive bodies and other state bodies, businesses, institutions and organizations.

In accordance with the procedure, one of the conditions for providers being included on the said list or register was the installation of monitoring equipment for the SSU to monitor all information passing through the channels of these companies.

At the present time the list of such operators contains 11 companies. Among there five companies have the right to provide Internet access services to state structures in Kyiv (the open stock company “Ukrtelekom”, the limited liability company (LLC) “Adamant”, the LLC “Lucky Net”, the LLC “Optima Special Communications” and the open stock company “Maket”) and 6 companies over the entire territory of Ukraine (the LLC “Global Ukraine”, the joint LLC “Infocom”, the open stock company “Ukrainian satellite systems”, the LLC “Information centre: “Elektronni visti”, the open stock company “City Net”, the state enterprise – scientific telecommunications centre “Ukrainian academic and research network of the Academy of Sciences of the Ukraine).

The Internet community has on many occasions called for the abolition of the above-mentioned Order due to the fact that the installation of such equipment makes it possible to carry out unsanctioned interception of personal correspondence of individuals and confidential commercial information of businesses, and is in contravention of Article 31 of the Constitution of Ukraine, Articles 27 and 30 of the Law of Ukraine “On business enterprise in Ukraine” and Article 15 of the Law of Ukraine “On business activities”, as well as other Ukrainian normative legal acts.

proUA / 30.03.2006 

Oleh Rybachuk, Head of the President’s Administration, has admitted that the deportation of 10 Uzbek citizens from the territory of Ukraine on 14 February was carried out with infringements of procedure in that the Uzbeks were not allowed 7 days in which to appeal the decision of the court to extradite them.

At the same time, in an interview given to the newspaper “Sevodnya” [“Today”], published on Wednesday, he claimed that the extradition itself had been correct.

“They belonged to a radical Islamic group, the name of which unfortunately I can’t say”, Rybachuk stated, referring to information received from the Head of the Security Service of Ukraine (SSU), Ihor Drizhchany.

He also said that he had said the “so-called credit history” of those Uzbeks and there had been grounds for deporting them. Rybachuk also directly confirmed that the extradition of the Uzbek citizens had been requested by the government of Islam Karimov.

When asked whether the law had after all been broken, Rybachuk answered that the point was possibly in the fact that the Head of the Crimean SSU, Major General Viktor Kozhelyanko, had not had time to fully come to grips with his position and had made a hasty decision.

Kozhelyanko was previously in charge of a special subdivision of the SSU on fighting terrorism, and he officially took up his position on 7 February, when he was formally presented by the Head of the SSU,  Ihor Drizhchany. 

In this interview, Rybachuk also complained that over the story with the deportation of the Uzbek citizens,Ukraine had simply lost the information war, and that the criticism of the US State Department was unfair.

15.03.2006

http://pravda.com.ua

This line from an old poem from 1974 by Natalya Gorbanevskaya emerged from the past and took hold, probably because it so totally conveys the feeling one has with regard to the recent case where ten Uzbek citizens were handed over by the Ukrainian authorities to Uzbekistan. Betrayal because these people had sought refuge and shelter in Ukraine, and they were handed over to face torture, ill-treatment and years of torment in Uzbek camps.  Betrayal because the authorities speak of their commitment to democracy, about human rights, about the European choice, and they themselves shamelessly abandoned these values. Betrayal because a significant part of Ukrainian society justifies such actions, because the argument goes, one needs to make compromises in the name of Ukraine’s national interests. And we could continue with “because”. As a result the country has landed headfirst in a stinking bog, has still not noticed and is not even thinking of trying to wash itself clean!

Let us, however, consider everything in order

On 7 February at around 6 a.m. a group of armed and masked spetsnaz [special forces] officers burst into an Uzbek café at the Nizhnegorsk Market and forcibly detained four Uzbeks. Another two employees of the café were detained while getting onto a train for Kyiv where they were intending to apply for political asylum.

On the same day, at about 2 p.m., five Uzbeks working in an Uzbek café at Belogorsk were detained as they were returning from an interview in the local immigration office. On 9 February armed Special Forces officers from Simferopol carried out a search of a home in Belogorsk where a small bakery was held. According to the owner of the café letting out the building, all the bags containing flour were ripped open, and the mattresses in the room where people slept were slit.

Those detained were held in custody in Simferopol. 9 of the 11 Uzbeks had from 1 – 6 February applied for political asylum to the Crimean Department of the State Committee for National Minorities and Immigration (hereafter the State Committee), as well as to the Kyiv Office of the UN High Commissioner on Refugees. The other two Uzbeks made their applications while in custody.

Relatives and friends of the detained men immediately turned to the UNHCR who on that same day, 7 February, submitted a note to the State Committee which said that the extradition to Uzbekistan of those detained would be a violation by Ukraine of its international commitments. The Head of the State Committee responded that there could be no question of deportation before procedures were concluded.

On 14 February the UNHCR again sent a note to the State Committee in which it expressed its concerned and received an answer that the issue was being studied in accordance with legislation. However, as it later transpired, on 13 February all those detained had been issued with a resolution from the Crimean Immigration Service turning down their applications for asylum.  On 14 February they were secretly transported to the Kyivsky District Court in Simferopol which supposedly took the decision to deport 10 of the 11 Uzbeks from the territory of Ukraine. The detained allegedly presented the court with written statements consenting to be returned to Uzbekistan. In the night between 14 and 15 February, they were taken by plane from Simferopol to Tashkent.

The fate of the 11th person detained is still not known. Apparently he escaped deportation and was released because he had a close relative in Ukraine. However there has no contact with him since this.

The UNHCR Kyiv found out about the Uzbeks’ deportation from the newspapers. The Head of the State Committee, Serhiy Rudyk, also claims that they heard the same way.

The Security Service of Ukraine (SSU) Press Centre informed Interfax that “as part of the struggle against illegal immigration, the SSU, as part of a joint operation with the Ministry of Internal Affairs of Ukraine on 7 February detained 10 citizens of Uzbekistan. “In connection with the fact that these individuals were illegally staying on Ukrainian territory, on 14 February the Kyivsky District Court in Simferopol ruled to have them deported”.

The Society of Uzbek Political Refugees in Ukraine asserts that Uzbekistan’s request for extradition stated that those detained had been involved in the Andijon events of 13 May 2005, when government forces opened fire and killed hundreds of civilians (different estimates range from 180 to 700 people killed). At the same time only three of the ten were witnesses of the events in Andijon, and the others had actually arrived in Ukraine in February and March last year.

In 2001, four political asylum seekers were deported from Ukraine to Uzbekistan. They were tortured and are still being held in prisons now. In August 2005, 18 members of the party “Byrlyk” were deported from Ukraine.  There have been reports that these people were subjected to torture. And now we have a new deportation.

The actions of the Ukrainian authorities were heavily criticized by such interstate institutions as the UNHCR and the Organization for Security and Cooperation in Europe (OSCE), the US State Department, the world-recognized international human rights organizations Human Rights Watch and Amnesty Internation, many Ukrainian and Russian human rights Organizations, including the Ukrainian Helsinki Human Rights Union, “Memorial”, the Moscow Helsinki Group and the Institute for Human Rights. All of them pointed to violations of the procedure when considering applications for political asylum set out in the UN Convention on the Status of Refugees and of the prohibition on extraditing people to countries where torture and cruel treatment are practiced imposed by the UN Convention on the Status of Refugees, the  UN Convention against Torture and Cruel Treatment and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The German human rights organization specifically concerned with the rights of refugees, Pro Asyl, called on the European Union and the Government of Germany to immediately suspend cooperation with Ukraine in this area.

The entire world community is aware of the nature of the dictatorial regime in Uzbekistan which has become even more repressive since the bloody events of 12 – 13 May in Andijon.  The mass use of torture and extra-judicial executions, the lack of an independent judiciary in the country have been commented upon by the UN High Commissioner for Human Rights, Louise Arbour, and the UN High Commissioner on Refugees, Antonio Guterres, Amnesty International and Human Rights Watch.  Last year a number of human rights organizations and independent media outlets, including the BBC, radio “Svoboda” [Radio “Liberty” and Freedom House were closed down. At the beginning of 2006 the prominent Uzbek human rights activist, Saidzakhon Zainabitdinov, was given a 7-year prison sentence. It was thanks to him that much of the information we have about the tragedy in Andijon was made known.

According to the Chairperson of the Democratic of the Democratic Forum of Uzbekistan, Izmail Dididzhanov, the attitude to Uzbeks in Ukraine has changed since the meeting on 30 January between the Presidents of Ukraine and Uzbekistan.  In his opinion, “Viktor Yushchenko traded the Uzbeks for gas”. According to information he holds, representatives of the Uzbek secret service came to Kyiv with a list of 51 names of people whom Uzbekistan wanted extradited.  And now the extradition of the first group of people from this list has been carried out.

The fierce criticism from western countries and from human rights activists forced an official response from Kyiv, but this was done extremely clumsily. The Head of the Press Service of the Ministry of Foreign Affairs, Vasyl Filipchuk on 21 February stated that the Uzbeks had been in Ukraine without organizing their legal status and had infringed the rules for being in the country.  He said that they had been refused political asylum since their applications had been unfounded, and that they had turned down their right to appeal the decision through the courts in writing.  He added that the Uzbeks were not covered by the Convention on the Status of Refugees since the latter only applied to people having refugee status, whereas the given case had involved the extradition of Uzbek citizens and a justified refusal to grant political asylum.  The last argument was repeated almost verbatim by the First Deputy of the Head of the President’s Secretariat, Anatoly Matviyenko. This argument is patent nonsense since according to the same Convention a person who has applied for political asylum has the same rights as those holding political refugee status, and remains under the protection of the UNHCR throughout the entire period that the application is under review. Procedure stipulates a 7-day period in which appeals may be lodged with the State Committee for National Minorities and Immigration against a refusal by a local immigration office to grant refugee status, then where a rejection is received from the State Committee, a year is allowed to appeal the decision in the courts. The waiving of their right to appeal and consent to being deported to Uzbekistan which Filipchuk refers to cannot be considered as having any legal force and does not cancel out the flagrant violation of procedure set down in the Constitution.

On 28 February a new explanation was presented for the deportation. It now appeared that the Uzbeks were members of an organization called the “Islamic Movement of Uzbekistan” (IMU), which is classified as a terrorist organization by the UN.  This version, without any proof whatsoever, was given on TV Channel 5 by the Press Secretary of the Security Service, Marina Ostapenko. It would appear at very least far-fetched given that the IMU is considered to have been crushed during the US-led military operation in Afghanistan.

Looking at the whole situation, one can conclude that this was a planned illegal extradition, carried out jointly by the Security Service of Ukraine, the Ministry of Internal Affairs, the State Committee for National Minorities and Immigration, the court and other departments. The Ukrainian authorities have at every step of this story allowed flagrant violations of domestic legislation and Ukraine’s international commitments.

It was illegal to hold the Uzbeks in custody in a temporary detention cell. All of those detained had passports on them, while 9 of the 11 were also carrying documents from the UNHCR Kyiv with photos and “green” papers from the immigration office, this meaning that their identity was not in question and there were therefore no grounds for holding them in such temporary detention units.  The remaining two applied for asylum after being detained, and the police submitted these applications to the immigration office which issued them too with the “green” papers. These people can therefore in no way be considered to have been illegal immigrants who were infringing the rules regarding foreign nationals living in Ukraine, There were no grounds for their detention which was illegal and carried out without court sanction.

It remains entirely unclear what happened to the detained Uzbeks in the temporary detention unit and how written consent to being returned to Uzbekistan was extracted. They had after all gone through a lot in order to escape persecution in their own country. They were seeking asylum in another country and could not have agreed of their own free will to return and face new torture and suffering. This suggests that they were forced to sign the documents, possibly with the use of physical violence.  In connection with this, one is disturbed by the strange release and subsequent disappearance of the eleventh Uzbek detained. It is still not known where he is. Therefore the possibility that he died under torture while refusing to sign a document consenting to being returned to Uzbekistan cannot be excluded, and must be thoroughly investigated. It is, in any case, necessary to carry out an official investigation into all the circumstances involving the detention and holding in custody of these people, to establish the role played by the SSU and the MIA and to determine whether there are any grounds for bringing criminal charges over the illegal actions of the enforcement bodies.

It is also crucial to establish what part in this was played by the State Committee for National Minorities and Immigration. It seems clear that this state committee tricked the UNHCR, and itself prepared the extradition. In any case it bears responsibility for the grave infringements of the procedure for gaining refugee status. The role of the court is unclear, including what ruling it actually passed in this case, and whether the Uzbeks were ensured the right to defence and other standards of a just legal system. In other words a check must be made of the court ruling, and for this to begin access must be obtained to the court ruling and the protocol records of the court hearing.

One of the factors which enable illegal actions is the absence in law of a procedure for court review of a question involving extradition or other forcible deportation of individuals to another state, with a stay placed on implementing any decision of an executive body under the ruling of the court has come into force. A law providing this procedure needs to be drawn up and submitted to parliament.

However, it is first of all vital to stop hiding our heads in the sand and to acknowledge that grave violations of human rights have been committed and to make the appropriate assessment of the actions of Ukrainian bodies of power. The haste with which the decision on extradition was taken, the unlawfulness of this decision, the fact that it was not possible to appeal it in contravention of international agreements are clear to everybody and must be recognized at the highest level. This is also crucial in order to prevent such cases occurring in the future. The vague commentary from the President in response to a request from journalists to explain the deportation of the Uzbeks (“Undoubtedly there needs to be a review of Ukraine’s foreign and domestic policy. Ukraine still needs to understand the democratic values obtained during the “orange revolution”. This is a road which needs to be taken”) can in no way be considered such an acknowledgement.

To the President of Ukraine, V.A. Yushchenko

Kyiv

Your Honour, Mr President!

As Uzbek political refugees in Ukraine, we are writing to you as President of Ukraine, the country of the Great Orange Revolution!

Ukraine is today at the centre of an international scandal. The United Nations, the Organization of Security and Cooperation in Europe, well-known human rights organizations and the US State Department have accused Kyiv of violating its international commitments as signatories to the UN Convention on the Status of Refugees and the Convention against Torture.

The incident arose as a result of the actions of the Security Service of Ukraine (SSU) which arrested 11 Uzbek refugees and handed them over to the bloodiest dictator of the modern world, the executioner Karimov. The fate of one of these refugees is to this day unclear.  The SSU is assiduously concealing the facts, trying to wash their hands stained by the blood of innocent refugees, and offering various stories. The SSU is attempting to mislead the world community, and at the same time the people of Ukraine.

Instead of explaining how people who had officially applied to the UNHCR for asylum could have been deported, and taking measures to ensure that anything similar happens in future, the Ukrainian authorities have taken a position which is unacceptable for a democratic country. Defending the honour of the uniform, they have declared that the deported refugees from Uzbekistan were members of the banned terrorist organization – IMU (Islamic Movement of Uzbekistan).

Prior to that the SSU had stated that the Uzbek refugees had violated the rules involving the period of stay on Ukrainian territory and for that reason had been deported. 15 days after Uzbekistan gratefully received these 10 poor refugees as a “present” from the SSU, it now transpires that they had not only infringed immigration rules, but were also members of the IMU!

Today any person who was directly or indirectly involved, or even simply a chance witness of the “Andijon uprising” of 13 May 2005, regardless of where they are, may be the target of persecution from the National Security Service of Uzbekistan (SNU).  These people are dangerous for Karimov’s regime as those who can spread the truth about the events of 13 May 2005 in Andijon. On that day the state forces, under the direct command of President Karimov, cold-bloodedly aimed at and shot demonstrators. Up to 1000 people were killed. We would mention that among those refugees deported, three were witnesses of the events of 13 May.

In order to easily arrest anybody the authorities don’t like, Uzbekistan uses standard, stock (falsified) charges. People are accused of taking part in any banned “REO” (religious extremist organization) like IMU, “Hizb ut-Tahrir” and so forth. The main thing is to get the person in prison and then experienced specialists on torture will force absolutely any “needed” statements from anybody at all.

In Uzbekistan there is no independent judiciary. Nor is there any just law enforcement system. It is a country where torture is systematically applied and where the death penalty has not been abolished.

The above has been recognized by the UN High Commission on Human Rights and the UN High Commission on Refugees.  It is also confirmed by experts from international human rights organizations like "Human Rights Watch", «Amnesty International», «Memorial», «the Moscow Helsinki Group», the “Civic Assistance” Committee and the organization “Pro Asyl" .

We would like to remind you that when the Czech authorities in Prague, on a request from Uzbekistan, arrested the well-known politician and leader of the opposition party “Erk”, Mr. Muhammed Solikh, they did not hurry to extradite him, but asked for the appropriate prosecution documents.  The Uzbek authorities could not prove his guilt, after which the Czech Republic apologized and released him.

In Russia, 14 Uzbeks opposing the regime have been held in custody in the pre-trial detention centre in Ivanovo since 18 June 2005, also at the request of the Prosecutor General of Uzbekistan.  It is well-known that Russian is the main supporter of the dictatorship in Uzbekistan. Yet even in this case, the Russian authorities have not violated their international commitments and have not handed these people over to the tyrant. Unfortunately, however, 13 of them are still languishing in the Ivanovo prison.

We are surprised that your officials should have so easily committed such violations. Most unfortunately this is not the first time, either. In 2001, under your premiership, four members of the Uzbek opposition from the party “Erk” were sent back to Uzbekistan at the latter’s request. These people are still in prison.  In August 2005 18 Uzbeks who were members of the party “Byryk” were deported.

Mr President, we hope that this action was not a calculated move to appease the dictator Karimov, but merely a mistake committed by your officials whose actions were ignorant  and who allowed violations in relation to the 11 Uzbek refugees.

We hope that you will draw the appropriate conclusions, and that those officials guilty of offences will be punished. We also hope that the relatives of the victims will hear from your lips words of apology for the actions of your officials.  Only strong individuals are capable of acknowledging their mistakes. The entire world knows you to be a strong person who was about to crush an authoritarian post-communist system without bloodshed.

You are the son of the Great Ukrainian People!

Mr President, the time has come to dispel the doubts of millions of people and show the entire world that Ukraine has not left that path which it chose through the Orange Revolution!

Yours respectfully,

The Head of the Democratic Forum of Uzbekistan

I.M. Dadazhanov   Tel: +380953947091, [email protected]

The Chairperson of the Ukrainian Section of the Party “Byrlyk”

A.A. Fayazov  Tel:  +380964541752, [email protected]

The Deputy Head of the Society of Uzbek Political Refugees in Ukraine

Unlike the problematical gas pipeline, the nonsense pipeline “Druzhba”[1] works in Ukraine without any bleeps. We devour billions of cubic metres of political nonsense.

There is nothing bad in protecting the mass media from the encroachment of administrative resources of various political shades. According to the Law of Ukraine «On the election of State Deputies of Ukraine”, a media outlet has the right to disseminate campaigning information only by agreement with a political faction, and only for payment from the said faction. In addition, editors must, if publishing advertisements for one political faction, print the advertisements of its opponents.  State officials are prohibited from publicising their opinion of candidates.

Yuri Lutsenko was the first victim of this regulation. Fulfilling his duty prescribed by the Law of Ukraine “On the Police”, he dared to communicate to his voters that there were individuals with still current criminal records (that is former criminals), individuals wanted for questioning by the Police, and individuals under investigation on the candidate lists of various political parties. The bloc “Nasha Natasha” immediately brought a suit against Lutsenko and won this case. The Pechersky Dstrict Court in Kyiv prohibited the Minister from making public such information.

Thank  God, the Appeal court reversed this decision. But… Let us imagine that some abstract political party puts forward as deputy of the Verkhovna Rada a notorious maniac, the murderer Onoprienko, who is as yet only suspected of having committed such crimes. According to the logic of the Pechersky court and the letter of the Law “On the election”, we have no right to know this confidential information. State Deputies care about our peace mind. As they say, a lot of knowledge creates a lot of problems. So, the officials conceal from us, voters, all possible information about deputies at all levels and from all parties.

Yet, if somebody is just itching to open their mouth or grab a pen to express their opinion about this or that deputy, party or bloc? (And fingers itch intolerably at the sight of the faces of deputies lamenting over the fate of the poor people!) You have no right to do so without an order from some political faction with an interest in your noble wrath. And if you do not want to deal with these factions or do not want to have such shady sponsors? Then be silent: nobody will publish your information and your opinion. Nonsense? Yes! Violation of your civil rights? Without a doubt! This is a violation of the fundamental right to freedom of speech and freedom of information. Yet, our former and future representatives have no time to think about that, because they are concerned for our good. It is so comfortable to be concerned for the modest salary of 18 thousand UH per month!

The Constitutional Court should check the legitimacy of our deprivation of the freedom of speech and information, and decide whether  Article 71 of the Law of Ukraine “On the election …” complies with the Constitution. However, our deputies, wearied by their love of the people, directly ignored their duty and “forgot” to swear in the judges of the Constitutional Court. And the President, being the guarantor of the Constitution, permits, for some reasons, free drifting away from the legal field. This drift could turn out to be too expensive for our country. Our citizens do not know who they are electing, they merely absorb the poisonous concentrate of the political drug.

The Law of Ukraine “On the election of state deputies” contains a delayed-reaction bomb which is much worse than one or two hundred criminals in the councils of all levels. This bomb is the party election to local councils plus deputies’ immunity. Such legal norms endanger the territorial integrity of Ukraine, can plunge it into chaos, into savage war between mayors and governors, especially in the eastern and southern regions of the country. Undoubtedly, it is the will of some political parties. But do those who state that there is only one Ukraine also want that? If not, then why are they so disgracefully inactive? If the deputies do not form the Constitutional Court before the election, I believe that it will not be possible to regard the election as legitimate at all. Representatives of the monitoring council of the Council of Europe have already hinted at the need to elect the Constitutional Court. Yet, nothing is done. We observe neither the Constitutional Court, nor the actions of the guarantor of the Constitution, nor the Constitution itself!

And  happiness was so close! A year ago it seemed that soon we would get to the clear waters of renewed legislation, reformed law enforcement and political systems. However, deputies of all levels and shades have had no time for that before the coming election. As a result, we have found ourselves on another legal reef. Will we survive again? Well  if it happens this time, and chaos and interethnic conflicts do not come to Ukraine, our salvation will depend not on officials of all branches of power, but on the common sense of Ukrainian citizens. So, dear compatriots let us disconnect ourselves from the nonsense pipeline and think again what country we want to live in: the country of victorious dictatorship or in a normal European state.

[1]  “Druzhba” [“Friendship”] is, in fact, the pipeline which runs from Russia through Ukraine (translator’s note)

These days I hesitate for a long time because switching on my TV set, because even the best film will inevitably be interrupted by political advertising. If you don’t manage to turn off the TV in time, you can be frightened into sleeplessness, despite plenty of Soviet experience in ignoring any political ravings.

The films and news go on as usual, and there are things to see, but the information bait is overwhelming, and then you’re lost.

In the middle of a love story you suddenly see a majestic Mona Lisa, above which for some reason “Ne tak!” [“Not so” or “wrong”] is written.  While trying to fathom what’s wrong with the Mona Lisa, you don’t turn the TV off in time. And then you see that everything is wrong with her. Her face twitches, she winks and begins to bellow in some kind of sepulchral tone that men cannot manage without women. And you feel as though this vampire apparition of La Gioconda will plunge her fangs into your throat. It’s only later that you realize that the political bloc “Ne tak!” is greeting women on International Women’s Day 8 March! God help us! Poor Leonardo da Vinci! Then some “regional” phantoms in black-and-white wander around the screen proving how we will simply die if we don’t elect the Party of Regions. Is this a new recipe for immortality? If, everything is so simple, then it’s baffling why others don’t use the recipe. Or maybe it’s very expensive for a civilized society to have such figures as Yanukovich and Kushnaryov in power.

After that some young veterans of goodness what regenerate goodness knows what, and some people’s blocs allege that they are “the closest to the people”. You begin to feel you’re losing it completely but keep trying to convince yourself: “Stay calm! Freedom of expression is paramount!”

True, but our political figures have serious problems with this expression. Nothing is comprehensible from the advertisments. “Nasha Ukraina” [“Our Ukraine”] enjoins us not to betray Maidan (and who then betrayed it?) and insists that there is only one Ukraine (we have seen maps). And not a word about  future economic and political steps.

The bloc “PRP-PORA” again promises that criminals will be put in prison (but how can they achieve this if those same criminals are trying to gain a seat in  Parliament and, as a result, deputy’s immunity?).

Look at the pure porn  from “Nasha Natasha” (Natalya Vitrenko’s bloc): for some reason in her advertisement some hunky men are chasing an orange hare which they then thrash. So what did the hare do to Vitrenko, and where are defenders of animals’ rights?

Another advertisement from the same bloc hints that the Ukrainian language is only good for latrines. Is this freedom of speech? Nothing of the kind!  In any democratic country the authors of such “masterpieces” would at least pay an enormous fine and be withdrawn from the electoral race, but our democracy is, seemingly, the most “advanced” and boundless. So boundless that it obviously needs some limits. Nobody should so flagrant insult the language of the country, trample on patriotic sentiments. I know many people who are deeply offended by these statements. A Ukrainian woman phoned me. One of her relatives was a Jew  who was tried in the  “case of  the doctors” – an anti-Semitic process of the last days of Stalin’s power. The woman said that in “democratic” Ukraine she felt like Jews during the anti-Semitic actions of Stalin’s totalitarian regime. I don’t think any commentary is required…

Here the question arises: why are prosecutor’s offices, the Central Election Committee and executive bodies ignoring this problem? Many people think like this woman. Moreover, many people (including me) have a sense of aesthetic shock. There is no place to hide from the wave of dirt and negative information. If you don’t  watch TV, you’ll hear it from somebody else, since everybody is effected…

Yet, this does not disturb our “multicolored” politicians. They have forgotten about their voters to the extent that they do not even try to pretend that they pay heed to people’s opinions. I see no other reasons for the total silence in pre-election advertisements about economic, political and social plans. It is even incomprehensible which parties are to the right and which to the left.

Probably, both “Regions” and “Our Ukraine” regard themselves as liberal parties, because they are endorsed by businessmen – owners of great enterprises. Yet, slogans of the Party of Regions are must more populist than those of the Communist party, “Our Ukraine” tells only about petty technical achievements in economics, and Yulia Timoshenko’s bloc (BYuT) is interested only in achieving justice. Although BYuT is closer to left-wing, socialistic ideas in its economic leanings, this is not reflected either in its slogans or the speeches of its leaders. In any democratic countries political parties openly declare their orientation, and it is always known in these countries, which parties are to the left, the right and which are centrist. Precisely social-economic features of the parties are the essence of competition among the participants in the election contest.

I believe that only the Socialist Party of Ukraine openly and consistently presents itself as a European centre-left political force with a distinct program. Besides, the People’s Rukh of Ukraine fairly definitely follows the right-wing liberal politics.

However, I have questions to socialists too, in spite of the clarity and transparency of their programs and slogans. It is they who are supporting the so-called “political reform” which is against the people, and the majority of them voted for immunity of deputies at all levels. They then are also guilty of today’s pre-election disgrace. And all these wild slogans, public and not public quarrels between deputies, etc. prove that deputies don’t care about the people. They need from us only a tick near their party or bloc. Yet, is it good to elect “a pig in a poke”?

The law “On election of people’s deputies of Ukraine” and the notorious political reform have rendered meaningless our participation in the pre-election races. Political parties see only each other and hear only themselves.

Thus, the access of citizens to power is so narrowed that what revolution can you even speak of? You see, revolution is a historical process which widens and simplifies the access of citizens to power.

Today, because of the actions of legislative power directly encouraged by the executive power, we are swiftly approaching some kind of neo-feudalism – the creation in the country of a deputy  “caste”, immune and absolutely irresponsible. These neo-feudals are going to govern the country through oligarchic clans, and they need only devotion and tribute from population.

All these slogans and the pre-election squabbles sometimes ressemble a fight between hungry dogs. And this is only the tip of the iceberg. Its foundation is the complete distancing of power from the interests of society, as it was in Soviet times (and maybe even worse!). So, the great Orwell, who revealed the real face of communism, has not lost his relevance. And now we, with our own hands, are building Orwell’s “animal farm”, where all animals are equal, but some are more equal than others.

Oh, sorry, the advertisements are beginning again, the orange hare is running away from those morons. Let’s see – maybe this time they won’t catch the poor thing.

Public Statement from the Ukrainian Helsinki Human Rights Union  (issued before the very latest events)

In Belarus persecution is continuing of those taking part in peaceful protest against election fraud during the Presidential elections. According to Belarusian human rights activists, around 400 people have already been arrested. People are detained while heading for the square where 35 tents have already been erected, or when they leave. The Belarusian Association of Journalists reports that between 14 and 23 March 20 journalists were charged with administrative offences, with the overwhelming majority being sentenced to periods of custodial arrest.

People are also being detained as they make their way to Minsk. They then face administrative prosecution. The trials are held both in the capital and in other cities. In Vitebsk on 22 March 12 activists were prosecuted, including a press photographer for the non-state newspaper “Vitebsky kuryer” [“Vitebsk Herald”].  For “taking part in unsanctioned actions” those detained have received custodial sentences of between 5 and 10 days, or have been fined. These same sentences were earlier passed down in Minsk.

Aleksandr Milinkevich’s Press Service reported that on Thursday morning the Deputy Head of Milinkevich’s headquarters was savagely beaten by two unidentified individuals while leaving his home. On 23 March the Belarusian Ministry of Internal Affairs stated that after the end of the opposition meeting in the centre of Minsk, those taking part would face administrative measures.

On 21 March Belarusian court officers made an inventory of the property of the human rights organization Belarusian Helsinki Committee (BHC), the last legal human rights organization in Belarus. The Deputy Head of the Organization, Garry Pogonyailo, says that the inventory was carried out on the eve of a court ruling expected to bind the Committee to pay taxes and economic fines to the figure of 155 million Belarusian roubles (approximately 72 thousand US dollars) on grants received from international donors. A criminal case related to this has been lauched against the Head of the Committee, Tatyana Protko, who could face between 2 and 7 years imprisonment.

The Belarusian authorities are flagrantly violating fundamental civil liberties, the right to freedom of expression, freedom of assembly and of association. These are rights which Belarus has agreed to honour as a signatory to the UN International Pact on Civil and Political Rights. Without observance of these rights, one cannot speak of fair and just elections.

We demand that the authorities put a stop to political repression in Belarus!

Commentary by Aleksandr Guryavov.

As already reported on this site, the Chief Military Prosecutor’s Office of the Russian Federation is refusing to recognize the Poles murdered at Katyń as victims of political repression. Several dozen Polish families whose relatives were shot at Katyń by the Soviet Union’s NKVD have addressed demands for such an acknowledgement to be made.

We publish a commentary from the Head of the Polish Commission of the International Historical, Educational, and Human Rights Association “Memorial”, Aleksandr Guryanov.

"... In Russian law there is no procedure for recognizing the status of a “victim of Stalin’s repression”. The Prosecutor’s Office deals with rehabilitation on the basis of a law from 1991, and following the application of individuals who suffered in Soviet times.  One may refer to their decision when approaching a Russian court. Those who were repressed have the right to small, basically symbolic, amounts of financial compensation.

Russian Prosecutors have over many years applied a narrow, strictly formal interpretation of the concept “rehabilitation”, taking it to be “the reinstatement of rights lost as the result of an unjust sentence”  passed by a court or other institution with the authority to pass sentences in Soviet times.

In Stalin’s USSR the right to pass sentences was held, in addition to usual courts and at various periods, special tribunals, military tribunals, special panels of judges under the NKVD, as well as the notorious “troika” , that is special courts made up of three people which Stalin used in 1937 – 1938 to carry out the major purges.

If somebody was issued a sentence by any of these bodies, the person may be “rehabilitated”.  In any other cases the Russian Prosecutor’s Office turns down application for rehabilitation.

During the time when the Katyń Massacre took place, in the Soviet Union sentences could only be passed, as well as in the courts,  by special panels of judges under the NKVD.  Yet the Polish Officers were shot on the basis of a decision taken by Stalin and the Politburo of the Central Committee of the All-Russian Communist Party (Bolshevik) from 5 March 1940.

This decision was in contravention even of the Soviet law of that period. From a formal point of view it was not a sentence, and therefore – according to the Russian Prosecutor’s Office – it cannot be annulled, i.e. the victims cannot be rehabilitated.

A few weeks ago the Prosecutor General used similar arguments in order to refuse to rehabilitate the family of Tsar Nikolai II, murdered by the Bolsheviks in 1918.

In the middle of the 1990s there was success in rehabilitating two Poles who had been interned during the Second World War. They had also been interned without a court sentence, but the Prosecutor’s Office did not interfere. Unfortunately, that case did not set a legal precedent for subsequent rulings. 

“Memorial” has for a long time been trying to bring about a change in the interpretation of the law on rehabilitation or a supplement to it in order to make an extremely limited and narrow reading impossible”.

Statement with regard to the Katyń Massacre and information regarding its investigation

6 March 2006

On 28.12.2006 Instytut Pamięci Narodowej [The Institute of National Remembrance] received via the Polish Embassy in Moscow the stated position of the Chief Military Prosecutor’s Office of the Russian Federation as of 18.01.2006 with regard to the possibility of victims of the Katyń Massacre being covered by the provisions of the Law of the Russian Federation of 18.10.1991 (amended on 22.12.1992) “On the Rehabilitation of Victims of Political Repression”.

Since the middle of the nineties, the Polish Embassy has registered dozens of applications from Polish citizens – relatives of the victims of the Katyń Massacre, to which the Russian side consistently responded that they could only be considered after the investigation being carried out by the Chief Military Prosecutor’s Office was concluded. The Russian investigation was terminated on 21.10.2004. Its results were not made available to Poland despite applications made in this case. The Russian Prosecutor justifies this by claiming that the majority of the more than 180 volumes of the investigation and the final resolution are covered under a secrecy clause.

In his letter of 23.11.2005 addressed to the Polish Ambassador, the Russian Prosecutor refused to allow the widow of a Polish Officer murdered at Katyń access to the final resolution on the conclusion of the investigation, then in the letter from 18.01.2006 outlined the reasons why this officer and “others cannot on the grounds mentioned be rehabilitated”.  This extraordinary stand is based on the assertion that the Law “On the Rehabilitation (of Victims of Political Repression)” allows for the rehabilitation of people who were subjected to repression for political reasons (underlined in the original).  The letter goes on to claim “whereas, in the course of the initial criminal investigation, unfortunately it was not established on the basis of which article of the Criminal Code of the RF (in the 1926 version) the said individuals were prosecuted, since the documentation was destroyed”.

The position of the Chief Military Prosecutor’s Office of the Russian Federation is at odds with the contents of the instructions from 05.03.1940 signed by Stalin and members of the Politburo, which were carried out in the Katyń Massacre. In these instructions it is stated that the Poles were held “in camps of the NKVD of the USSR for war prisoners and in prisons of the western part of Ukraine and Belorussia … are sworn enemies of the Soviet regime, filled with hatred for the Soviet system”.  For this reason it is instructed that the cases „of hardened and unreformed enemies of the Soviet regime ... both those of the 14700 individuals in prisoner of war camps, and the cases of 11000 individuals arrested and being held in prisons in the western part of Ukraine and Belorussia be considered in special sessions and the ultimate penalty – execution by firing squad be applied”.  It is instructed in this document that “the cases be considered without calling those arrested and without charges being brought, a decision on the conclusion of the investigation and document with the charge”.

The contents of these instructions from 05.03.1940 indicate unambiguously and without any doubt whatsoever that the Katyń Massacre was an act of the most terrible political repression. Consequently the argument of the Chief Military Prosecutor’s Office of the Russian Federation that in order to establish this it would be necessary to determine on the basis of which article of the Criminal Code of the RF (in the 1926 version) the murdered Poles „were prosecuted” is in logical contradiction with the above-mentioned instructions for carrying out the killings without presenting those sentenced to be shot with any charges based on the provisions of the Russian Criminal Code, and also without a decision on the conclusion of the investigation and document with the charge against them.

”The position of the Chief Military Prosecutor’s Office of the Russian Federation effectively closes the door to joint action by prosecutor’s offices and the Institute of National Remembrance on agreed settlements and legal assessments of the Katyń Massacre.  The refusal to apply the provisions of the Law “On Rehabilitation …” to the victims of the Katyń Massacre and the grounds given for such a position may however be viewed as dishonouring the memory of the Polish victims and distressing members of their families.  It is staggering that the documentation from the Russian investigation into the Katyń Massacre of 1940 should still remain secret in 2006.  The IPN is therefore calling on the Chief Military Prosecutor’s Office of the Russian Federation to make all documents from the investigations, as well as the final resolution, public.

With this state of affairs, the main aim of the Polish investigation, besides establishing all living members of the families of the victims who are entitled to the status of people who suffered through the Katyń Massacre, is to formulate and defend in detail both the historical and legal assessment of this terrible crime.

The assessment of the Katyń Massacre for Poland will always be the test of truth and good will in Polish-Russian relations.

Dr hab. Janusz Kurtyka  Prof. Witold Kulesza
Head of the IPN  Director GKŚZpNP

(translated from Polish) 

On the investigation into the Katyń Massacre

The decision to begin an investigation into the Katyń Massacre  was taken on 30.11.2004. The investigation was based on a general legal analysis of the facts, bearing in mind that the Massacre was a war crime, as well as a crime against humanity in its gravest form – that of genocide. Before the decision to undertake the Polish investigation was made, the position of the Chief Military Prosecutor’s Office of the Russian Federation was presented to the President and the Prosecutors of the Instytut Pamięci Narodowej  [Institute of National Remembrance] during talks held in Moscow on 4 August 2004.  The Russian Prosecutor’s Office did not recognize the criminal and legal assessment of the Katyń Massacre as presented by the Director of the Main Commission. It argued that after 17 September 1939, 240 thousand Pole were in Soviet captivity. Of this number, in accordance with the decision of 5 March 1940, signed by Stalin and members of the Politburo, 22 thousand Poles were murdered.  Such a number of victims could not therefore serve as justification for a criminal legal categorization of the crime as one of genocide.

At the same time it was stated that the concept of genocide had been first introduced into international criminal law in 1948 in the Convention on the Prevention and the Punishment of the Crime of Genocide, and that it could not therefore apply to actions committed earlier.

The Russian side did not provide any answer of substance to the statement of the Director of the Main Commission which noted that during the Nuremberg Trials the Russian Prosecutor, Y. Pokrovsky, in his address on 12.02.1946, presented the Katyń Massacre, then attributed to the Germans, as a crime worthy of condemnation on the basis of international criminal law, such as the Statute of the Nuremberg Tribunal.  In the prosecution conclusion, signed also by the Russian Prosecutor, in qualifying the mass murder committed against “Jews, Poles and Gypsies”, the term “ludobójstwo” [“genocide”] is used[1].

Other issues presented by the Polish side were also not touched upon, such as the legal classification of the Katyń Massacre, based on the results of the Russian investigation, as well as the issue of the influence of military orders and instructions from State authorities on criminal liability of the organizers and direct perpetrators of the crime.

It was on the contrary stated that it was “irrational” to expect that perpetrators of the crime still alive should be brought to justice.  At the same time the Russian side declared its readiness to present the Polish side with authorized copies of all volumes of the case, with one hundred and several dozen being promised (by the middle of the nineties the Poles had been handed unauthorized photocopies of 93 volumes).

Despite five appeals from the Institute of National Remembrance (INR), the said promise was not kept. Instead the INR from 10 – 21 October 2005 was given the opportunity to see 67 volumes of the case not classified as secret out of a total of over 180 volumes. They were not allowed to take copies of these documents.

The examination of the volumes presented did not increase our knowledge of the Katyń Massacre and of the results of the Russian investigation. Despite a repeated request, we were also not given the opportunity to see the contents of the Ruling from 21 October 2004 terminating the Russian investigation [the ruling was in fact from 21.09.2004 – translator]

Since the beginning of the Polish investigation, the testimony of 1497 witnesses has been gathered. This is primarily from family members of those murdered, however there is also some evidence from direct witnesses of the events – from an inmate of the Special Camp in Starobelsk, Jozef Lokuciewski, who was released from the camp in November 1939, inmate of the Kozielsk Camp, Bogdan Kowalski, freed at the beginning of December 1939, and also a prisoner of the Kozielsk Camp who survived, the priest  Zdzislaw Peszkowski.

In the first instance, witnesses are interviewed who are already very old – the wives of those murdered, the victims’ brothers and sisters, their children and other living relatives. It should be noted that a significant number of those interviewed are elderly people who have difficulty getting around. In such situations, their evidence is taken in their own homes.

The range of the investigation carried out also covers murders of the Polish citizens whose remains were discovered in a mass grave at plot 19 – 20 in the Dniprovsk district near the village of Bykovnya outside Kyiv, and also the murder of Polish citizens whose remains were found in 1988 during exhumation work in Kuropaty outside Minsk.

In February 2005 we received 77 pages of authorized copies of documents from the Prosecutor General of Ukraine. Among them was a protocol of the questioning of a witness, Leonid M., who confirmed that in July 1940, the Polish Military Prosecutor, General Stanislaw Lubodziecki, had been held in the Kyiv NKVD prison on Volodymyrska Street, and also that Polish officers and civilians had been kept in Lukyanov Prison in 1940.

The documents handed over there include also authorized extracts from two expert studies carried out within the framework of investigative activities of the Military Prosecutor’s Office of the Northern Region of Ukraine (number 50-0092), concerning mass executions of individuals from 1937-1941 whose bodies were then buried in mass graves at plot 19 – 20 in the Dniprovsk district near the village of Bykovnya outside Kyiv.  Access was obtained to the Political Archives of the German Ministry of Foreign Affairs in Berlin where the Prosecutors from INP from 19 – 22 July 2005 were able to study documents which had up till then been unknown, and received copies on microfiche. Responses are awaited from the Prosecutor General of Ukraine to the latest requests for information. The search for documents is also continuing in foreign archives.

6 March 2006

The original of this document is available on the website of Instytut Pamięci Narodowej under the title «Komunikat w sprawie Zbrodni Katynskiej oraz informacja o stanie sledztwa».

Reference information about the rehabilitation of victims of the Katyń Massacre

1. The Katyń Massacre refers to the mass execution from April to May 1940 of almost 22 thousand Polish citizens held in different labour camps and prisons.

The number includes:

14552 Officers of the Polish Army and police officers, seized in September 1939 by the Red Army and held in three special NKVD prisoner-of-war camps:  Kozielsk Camp: 4421 murdered and buried at Katyń; Ostashkov Camp:  6311 executed in Kalinin and buried in Mednoye; Starobelsk Camp: 3820 shot and buried in Kharkiv);

– 7305 people arrested and imprisoned in prisons of the in the western part of the Ukrainian and Byelorussian Soviet Republics.

2. Lists of names (name, patronymic and surname, date of birth and military rank) of the prisoners of war executed are held by the Main Department dealing with prisoners of war and individuals interned [Russian: GUPVI] of the NKVD and kept in the Special Archive in Moscow (now forming part of the Russian State Military Archive). In April 1990 copies of the lists were handed to the President of Poland, General Jaruzelsky, together with an official Soviet acknowledgement that the executions had been carried out by the NKVD of the USSR (TASS Report from 13 April 1990). The lists were soon published in Poland in both Polish and Russian.

Note: It is not stated on these documents that the people listed were shot. Formally speaking they are instructions for handing over groups of prisoners of war (each with about 100 – 300 people) from the Kozielsk Camp into the hands of the Chief of the Department of the NKVD for the Smolensk region; from the Ostashkov Camp – into the hands of the Chief of the Department of the NKVD for the Kalinin region, and also one single list of those being taken from the Starobelsk Camp. There is only indirect evidence that in reality these people were executed, although the evidence is convincing (official correspondence of the NKVD while the operation was being carried out with dates, numbers of instructions and statistical data about the fulfilment of these orders which coincide with the numbers of people on specific lists, the results of exhumation and the identification of remains at  Katyń in Spring 1943, and in the nineties, testimony of the former Chief of the Department of the NKVD for the Kalinin region, Soprunenko, and others).

3. In 1990 a criminal case was launched by the Prosecutor of the Kharkiv Region (First on 22 March with regard to the discovery of a mass burial in the forest park zone in Kharkiv, and on 20 August, in relation to Beriya, Merkulov, Soprunenko, Berezhkov and other NKVD officers, as well as by the Prosecutor’s Office of the Kalinin Region (on 6 June), with regard to the fate of the Polish prisoners of war held in the Ostashkov Camp who disappeared without trace in May 1940.  These cases (or only the case of the Kharkiv region Prosecutor?) were handed to the Chief Military Prosecutor of the USSR, and on 27 or 30 September were accepted for implementation.  The Chief Military Prosecutor set up an investigative group headed by A.V.Tretetsky.

4. On 14 October 1992 the Decision of the Politburo of the Central Committee of the All-Russian Communist Party (Bolshevik) from 5 March 1940  on the execution of the Polish prisoners, as well as other documents from “special package No. 1” were made public and passed to Poland. It became clear then for the first time that those executed had not only been prisoners of war, but also inmates of prisons in the western regions of the Ukrainian SSR and Byelorussian SSR.  The Decision of the Politburo from 5 March 1940 ordered the execution of 14700 prisoners of war and 11 thousand prisoners. From a note written to Khrushchev by Shelepin on 3 March 1959, it is clear that approximately this number of prisoners of war were shot, however of the number of prison inmates the number actually executed was 7305.  The reason for the “incomplete implementation” is not known.

5. On 5 May 1994, in Kyiv, the Deputy Head of the Security Service of Ukraine, General A. Khomich, handed the Deputy Prosecutor General of Poland, S. Snieżko, a copy of the list of names (name, patronymic and surname, date of birth and number of the execution order) of 3435 inmates of prisons in the western regions of the Ukrainian SSR (“Memorial” is in possession of a photocopy of this). The list was immediately published in Poland and became known as the “Ukrainian list”.

6. «The Belarusian list” has still not appeared.  If the “Shelepin” figures for the numbers of executed prisoners are correct, and if the “Ukrainian list” published is full, then the “Belarusian list” should contain 3870 people. At the present time we therefore have the personal information about 17987 victims of the Katyń Massacre, while 3870 victims (inmates of prisons on the western regions of the Belarusian SSR) can still not be named.  Only the places where the murdered prisoners of war were buried (Katyń, Mednoye and Kharkiv) are known, that is, the graves of 14552 people.

7.  On 13 June 1994 the Head of the investigative group of the Chief Military Prosecutor’s Office, A. Y. Yabloko (who succeeded A. V. Tretetsky), passed a decision to terminate the criminal case under Article 5, point 8 of the Criminal Procedure Code of the RSFSR (due to the death of the accused),  while in the decision Stalin, members of the Politburo Molotov, Voroshilov, Mikoyan, Kalinin Kaganovich, Beriya with other heads and employees of the NKVD and those who carried out the executions are declared guilty of crimes set down in Points “a”, “b”, and “c” of Article 6 of the Charter of the International Military Tribunal (IMT) at Nuremberg (crimes against peace, war crimes, crimes against humanity, respectively), and also of the genocide of Polish citizens. Specifically this classification was given by the Soviet Union in 1946 when submitting the Katyń case for review by the IMT which was then forced to refuse to include the Katyń case in its prosecution conclusion against the Nazis.

However the heads of the Chief Military Prosecutor’s Office and the Prosecutor General of the Russian Federation revoked Yablokov’s decision and instructed another prosecutor to make a further investigation.

8. In the year 2000 Polish-Ukrainian and Polish-Russian memorial complexes were established in the places known to hold the graves of victims of the  Katyń Massacre: on 17 June in Kharkiv (in the forest park zone), on 28 July 2000 – in Katyń, and on 2 September - in Mednoye.

9. On 21 September 2004 the criminal case under Point 4 of Part 1 of Article 24 of the Criminal Procedure Code of the Russian Federation was terminated by the Chief Military Prosecutor of the RF due to the death of the culprits.  A “number of specific high-ranking officials of the USSR” were declared guilty, their actions being classified under Point “b” of Article 193-17 of the Criminal Code of the RSFSR (exceeding the authority of those in charge of the Workers and Peasants’ Red Army having grave consequences under particularly aggravating circumstances.

On 11 March 2005, the Chief Military Prosecutor, Savenkov, gave a press conference at which he declared the list of those guilty to be a state secret. The decision to terminate the criminal case, and (some) documents mentioned in the 36 volumes of the criminal case bear  the stamps “secret” or “top secret”.  In 80 volumes one comes upon documents with the stamp “for official use only”, while in 67 volumes there are no stamps at all. It was these 67 volumes that the Polish Prosecutors were allowed to see (but not allowed to copy) in autumn 2005.

10. In November 2005 there was the first letter we know of from the Chief Military Prosecutor’s Office refusing to rehabilitate a specific victim of the Katyń Massacre. The grounds given for the refusal were that according to the law, rehabilitation is envisaged for individuals who suffered repression on political grounds, and the Article of the Criminal Code under which the said person had been charged had not been established.

[1]  The Polish used does indeed mean “genocide”, but I was unable to locate the original document.  What constitutes “genocide”, and what “mass murder” remains a very difficult area (translator’s note)

6 March 2006

On 28.12.2006 Instytut Pamięci Narodowej [The Institute of National Remembrance] received via the Polish Embassy in Moscow the stated position of the Chief Military Prosecutor’s Office of the Russian Federation as of 18.01.2006 with regard to the possibility of victims of the Katyń Massacre being covered by the provisions of the Law of the Russian Federation of 18.10.1991 (amended on 22.12.1992) “On the Rehabilitation of Victims of Political Repression”.

Since the middle of the nineties, the Polish Embassy has registered dozens of applications from Polish citizens – relatives of the victims of the Katyń Massacre, to which the Russian side consistently responded that they could only be considered after the investigation being carried out by the Chief Military Prosecutor’s Office was concluded. The Russian investigation was terminated on 21.10.2004. Its results were not made available to Poland despite applications made in this case. The Russian Prosecutor justifies this by claiming that the majority of the more than 180 volumes of the investigation and the final resolution are covered under a secrecy clause.

In his letter of 23.11.2005 addressed to the Polish Ambassador, the Russian Prosecutor refused to allow the widow of a Polish Officer murdered at Katyń access to the final resolution on the conclusion of the investigation, then in the letter from 18.01.2006 outlined the reasons why this officer and “others cannot on the grounds mentioned be rehabilitated”.  This extraordinary stand is based on the assertion that the Law “On the Rehabilitation (of Victims of Political Repression)” allows for the rehabilitation of people who were subjected to repression for political reasons (underlined in the original).  The letter goes on to claim “whereas, in the course of the initial criminal investigation, unfortunately it was not established on the basis of which article of the Criminal Code of the RF (in the 1926 version) the said individuals were prosecuted, since the documentation was destroyed”.

The position of the Chief Military Prosecutor’s Office of the Russian Federation is at odds with the contents of the instructions from 05.03.1940 signed by Stalin and members of the Politburo, which were carried out in the Katyń Massacre. In these instructions it is stated that the Poles were held “in camps of the NKVD of the USSR for war prisoners and in prisons of the western part of Ukraine and Belorussia … are sworn enemies of the Soviet regime, filled with hatred for the Soviet system”.  For this reason it is instructed that the cases „of hardened and unreformed enemies of the Soviet regime ... both those of the 14700 individuals in prisoner of war camps, and the cases of 11000 individuals arrested and being held in prisons in the western part of Ukraine and Belorussia be considered in special sessions and the ultimate penalty – execution by firing squad be applied”.  It is instructed in this document that “the cases be considered without calling those arrested and without charges being brought, a decision on the conclusion of the investigation and document with the charge”.

The contents of these instructions from 05.03.1940 indicate unambiguously and without any doubt whatsoever that the Katyń Massacre was an act of the most terrible political repression. Consequently the argument of the Chief Military Prosecutor’s Office of the Russian Federation that in order to establish this it would be necessary to determine on the basis of which article of the Criminal Code of the RF (in the 1926 version) the murdered Poles „were prosecuted” is in logical contradiction with the above-mentioned instructions for carrying out the killings without presenting those sentenced to be shot with any charges based on the provisions of the Russian Criminal Code, and also without a decision on the conclusion of the investigation and document with the charge against them.

”The position of the Chief Military Prosecutor’s Office of the Russian Federation effectively closes the door to joint action by prosecutor’s offices and the Institute of National Remembrance on agreed settlements and legal assessments of the Katyń Massacre.  The refusal to apply the provisions of the Law “On Rehabilitation …” to the victims of the Katyń Massacre and the grounds given for such a position may however be viewed as dishonouring the memory of the Polish victims and distressing members of their families.  It is staggering that the documentation from the Russian investigation into the Katyń Massacre of 1940 should still remain secret in 2006.  The IPN is therefore calling on the Chief Military Prosecutor’s Office of the Russian Federation to make all documents from the investigations, as well as the final resolution, public.

With this state of affairs, the main aim of the Polish investigation, besides establishing all living members of the families of the victims who are entitled to the status of people who suffered through the Katyń Massacre, is to formulate and defend in detail both the historical and legal assessment of this terrible crime.

The assessment of the Katyń Massacre for Poland will always be the test of truth and good will in Polish-Russian relations.

Dr hab. Janusz Kurtyka  Head of the IPN 

Prof. Witold Kulesza   Director GKŚZpNP