“Prava Ludiny” (human rights) monthly bulletin, 2006, #08

I am no lawyer to question the law passed by the Verkhovna Rada yesterday, and already (such haste!) signed by the President. On the other hand, neither are the vast majority of the people attempting to follow the way the country is being shuffled about between people who seem worryingly deft at whipping the odd card in unnoticed.

Equally lacking in legal expertise are the majority of Deputies of the present Verkhovna Rada as yesterday’s legislative sprint graphically demonstrates. 

My question, which I will attempt to provide the background for below, is therefore far removed from legal finesse: Put most primitively, how can the country’s legislative body prohibit the Constitutional Court from determining the constitutionality of laws passed on Ukrainian territory where the “Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it”.

The “Law” thus passed is deceptively short.  No, let me rephrase that: it is short and insidiously deceptive.  It seems to suggest that the new judges of the Constitutional Court must not touch an agreement made before they took office, which changed the Constitution they are now authorized to protect and interpret.  All might seem fair if one was dealing with some kind of civil contract between individuals or legal entities, where you establish the goalposts from the outset.  

The point is (to state the embarrassingly obvious that unfortunately some seem willing to ignore): the Constitution of Ukraine is no contract (and most certainly not a football!), and must not be used for manipulative behind-the-scenes political carving up of any cake, however tempting the pieces of power thus extracted may be.

Just one more observation before considering what is really at stake. Warning lights begin, figuratively speaking, to flash in the mind of even the most legally uninitiated when one considers the period of 9 – 10 months where the Constitutional Court was prevented from functioning.  Prevented, we hasten to add, not by any force majeure circumstances, but quite brutally blocked by the same legislative body which yesterday speeded through a “law” to impose restrictions on the Court empowered to interpret the highest Law of the land.

What was in question was the “political reform” – constitutional amendments introduced in a law from 8 December 2004 which came into effect on 1 January 2006.  These amendments effectively took a lot of power from the President and transferred it to the Verkhovna Rada, also introducing a system of total proportional representation.

There has been serious criticism of the substance of these changes from the Kharkiv Human Rights Group, other human rights organizations and many constitutional law experts. There have, however, also been questions raised as to the SHEER VALIDITY of the amendments given certain irregularities and the circumstances in which they were passed.  Very briefly, these involve the following:

i)  whether amendments to the highest Law of the land can be passed as part of a “package vote” involving changes to ordinary legislation, in this case, electoral law.  It should be added here that this “package vote” was the result of political negotiations, and the electoral changes agreed were crucial to ensure that the re-run of the voting in the Presidential elections was not marred by the same flagrant vote-rigging, as in the first two rounds;

ii)  the fact that the same law had been voted on and rejected 8 months earlier, and the Constitution stipulates that a year must pass before a draft law may be reconsidered;

iii)  the said constitutional amendments were introduced in early December 2004, at the peak of the revolutionary events we call the “Orange Revolution”.  Article 157 of the Constitution clearly states: “The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. Given the famous linguistic skills of some illustrious members of the present Verkhovna Rada, one would imagine it would be more appropriate for the Constitutional Court to consider whether or not this constitutional norm was breached back in December 2004.

These are just a few of the very many points which place the validity of the Law passed on 08.12.2004 No. 2222-IV “On introducing changes to the Constitution of Ukraine” in question.  The questions raised must be answered by the Constitutional Court of Ukraine. 

The events in the Verkhovna Rada on 4 August 2006 fill one with a grotesque sense of deja vue.  Certainly it had all happened before, and if the “package vote” was not so overt, the political deal was entirely clear: Yushchenko agrees to not query the “political reform”, if the judges of the Constitutional Court are sworn in, including the judge agreed by “Nasha Ukraina”, etc.  The above account is necessarily incomplete, but not through naivety: of course, the wheeling-dealing involved much more, but words like transparency, openness, not to speak of considering the will of the people, would seem to have been forgotten. And, frankly, it’s all too depressingly nauseating to rummage deeper.

Especially because of the grotesque aspect involved: in December 2004 people were considerably more tolerant of such behind-the-scenes agreements, because the stakes were so desperately high.  What were the stakes yesterday?

I would respectfully suggest that as a matter of the greatest urgency the requisite 45 State Deputies of the Verkhovna Rada of Ukraine put forward a submission to the Constitutional Court of Ukraine asking for the latter’s interpretation as to the constitutionality of

i) the Law of Ukraine No.79-V “On introducing amendments to Section IV  “Final and transitional provisions of the Law of Ukraine “On the Constitutional Court of Ukraine”, passed and signed by the President on 4 August 2006 and

ii) the Law passed on 08.12.2004 No. 2222-IV “On introducing changes to the Constitution of Ukraine”

I would also suggest that human rights and civic organizations put maximum effort into achieving such a review by the Constitutional Court of Ukraine..

see also:  http://khpg.org/1128443105;   http://khpg.org/1152198833=

A Ukrainian journalist has won his claim against Ukraine in the European Court of Human Rights. The Court in Strasbourg has ordered Ukraine to pay Oleh Lyasko 3 thousand Euros compensation. The Court found Ukraine guilty of having violated Mr Lyashko’s right to freedom of speech.

In 2001 Lyashko, then the Chief Editor of the newspaper “Politika” was given a two-year suspended sentence and prohibited from holding managerial positions in the mass media for two years in connection with the publication of four articles against the then Head of the Government Vasyl Durdynets.

Lyashko is presently Chief Editor of the newspaper “Svoboda” [“Liberty”] and a State Deputy from the Bloc of Yulia Tymoshenko (BYuT).

A number of online information sites, including Ukrainska Pravda, Madan and others have today reported information which first appeared in Friday’s “Komersant Ukraina”.  According to the latter source, the Ministry of Justice has cancelled the Order of the State Committee on Communications regarding mandatory monitoring of Internet traffic by Internet providers whose services are used by state bodies (Order of the State Committee on Communications No. 122 from 17 June 2002).  This would mean that the Security Service which initiated this document would no longer be able to legally monitor correspondence and statistics from these providers regarding who had visited which websites.

“Yes, this Order has been cancelled and the documents have been sent to the Ministry of Transport and Communications which has ten days in which to appeal against the decision”, an employee of the Ministry said.  According to “Komersant” the decision of the Ministry of Justice is dated 4 August.

However if one checks the official website of the Ministry and the Ukrainian database of legislation on the Verkhovna Rada website, no amendments to the Order of the State Committee on Communications No. 122 from 17 June 2002

As reported earlier, the Ministry of Justice, responding to an approach made by the Internet Association of Ukraine questioning the legality of the issue of this Order stated that it considered the Order to be entirely lawful, however later, on 23 November 2005, replying to a letter from the Ukrainian Helsinki Human Rights Union on the same subject, the Ministry said that the Order was not lawful.

The letter stated that “At the same time, with regard to the issue of the Order of the State Committee for Communications No. 122 of 17.06.2002, we would state that the Ministry of Justice in a letter dated 13 October 2005 No. 37229-24 called upon the Ministry of Transport and Communications within a five-day period to declare no longer in force the Order No.122 of the State Committee for Communications and Computerization of Ukraine from 17.06.2002. In the event that the above-mentioned Order is not brought into compliance with current legislation, the Ministry of Justice will begin procedure for revoking the decision on State registration of normative legal acts included in the State Register which were affirmed by the Order No. 32/5 of the Ministry of Justice of Ukraine from 31.07.2000.”  (the original can be found at: http//www.helsinki.org.ua/index.php&id=1132741095)

However, as of the present day Order No. 122 has not been revoked!

.Yet why is information again appearing in the media about cancellation of this order?  In our opinion, this is simply a game played by officials or an attempt to pass on sensational information to journalists.

According to data from the Department of Statistics, the computer communications market in Ukraine in 2005 was worth 1 billion UH. According to the Ministry of Transport and Communications services in transmitting information and access to the Internet were provided by around 500 companies.

Order No. 122 passed by the State Committee for Communications and Computerization of Ukraine (SCCCU) on 17 June 2002 obliges all Internet providers rendering services to state bodies to install on their networks at their own expense monitoring equipment. According to information from the SCCCU, the Ministry of Transport, these conditions have been fulfilled by Ukrtelekom (in the Dnipropetrovsk, Donetsk, Kharkiv, Lviv and Odessa regions, and in the Autonomous Republic of the Crimea), “Golden Telecom”, “Adamant”. “City Net”, “Lucky Net”, “Ukrsat”, “Elvisti”, “Global Ukraine” and “Infocom”.

On 20 July 2006 the Ukrainian Helsinki Human Rights Union addressed an appeal to the Ministry of Internal Affairs pointing out infringements of rights and liberties in the existing system for registering vehicles. The text stated:

“In accordance with the Rules for state registration and records of cars, buses and automated machines constructed on car chasses, motorcycles of all types, marks and models, trailers, semi-trailers and cycle-cars, approved by the Resolution of the Cabinet of Ministers from 7 September 1998 No. 1388, the state registration of vehicles, and accordingly the issue of number plates is carried out solely on the basis of ones place of permanent or temporary registration (p. 27).

The Constitution of Ukraine stipulates that citizens enjoy equal constitutional rights and freedoms, and there cannot therefore be privileges or restrictions, including on the grounds of place of residence (Article 24).

Furthermore, the Constitutional Court in its Ruling No. 15-rn from 14.11.2001 on the constitutional submission from 48 State Deputies asking about the conformity with the Constitution of Ukraine (constitutionality) of the provision of sub-point 1of point 4 of the Provision on the Passport Service of International Affairs agencies approved by the Resolution of the Cabinet of Ministers (the case on registration [“propiska”] declared that freedom of movement and choice of ones place of residence are a vital safeguard to the freedom of the individual and a condition of his or her professional and psychological development. This right, like all other human rights and freedoms, is inalienable and inviolable (Article 21 of the Constitution of Ukraine). At the same time this right is not absolute. Freedom of movement and free choice of ones place of residence, the right to leave Ukraine, as with limitations on the exercise of any rights and freedoms of all those legally present in Ukraine according to their place of residence may be restricted solely by law (Article 33 of the Constitution of Ukraine)

The Law of Ukraine “On freedom of movement and freedom to choose one’s place of residence” stipulates that registration of ones place of residence or place where one is staying, or lack of such registration, cannot be the condition for the enjoyment of any of the rights and freedoms guaranteed by the Constitution, laws and Ukraine’s international commitments, nor may it form the grounds for their restriction. Furthermore, the law specifies the concept of not only place of residence but also the  place where someone is staying.

In view of this, the individual’s enjoyment  of the right to freely use his or her property – a car – has been placed directly contingent upon ones place of registration, this contravening the law on freedom of movement and freedom to choose one’s place of residence.  Moreover individuals who are temporarily not registered at any particular address are deprived of the right to freely use their property since they are unable to register their car. Yet the law allows a person to not registration at a new address for at least a month. This means that the given Provision unlawfully deprives such individuals of the rights enshrined in the Constitution and laws of Ukraine.

One would also note that limitations of rights and freedoms, for example, property rights or the right to freely chose ones place of residence may only be imposed through the Constitution and laws of Ukraine, and through no other normative legal acts.

In the light of the above, we would ask you to review the principle of registration of vehicles based on place of residence and introduce a system which will not create restrictions on the enjoyment of citizens’ rights and freedoms on the basis of their place of residence. We would suggest, for example, for a transitional period to consider the possibility of such registration at the place of sale or purchase of the vehicle at the individual’s own choice.

UHHRU would ask the MIA to consider simplifying the procedure for registration of vehicles, namely by introducing European standards in this area.”

Shortly afterwards, on 21  August 2005 the MIA informed UHHRU that it had studied the latter’s appeal. It was also stated that “in order to improve the quality of service to individuals when registering vehicles, the MIA back on 30 June of this year issued Instruction No. 556 on running an experience connected with providing registration services to individuals living in any regions of Ukraine directly in the premises of the trading outlets (car salons) which sell new vehicles, as a result of which appropriate suggestions will be made on introducing amendments to the Rules for state registration and records of cars, buses and automated machines constructed on car chasses, motorcycles of all types, marks and models, trailers, semi-trailers and cycle-cars, approved by the Resolution of the Cabinet of Ministers from 7 September 1998 No. 1388”.

UHHRU welcomes this experiment and will continue to monitor the process of reforming the system of car registration.

There is a shortage of forms for temporary inability to work, or more simply, medical certificates in Vinnytsa clinics. This is not because Vinnytsa residents have started to get ill more often, but simply because the clinics don’t have enough. And in order to give their employers the documents testifying that they weren’t skiving, but were ill during the days they didn’t turn up at work, Vinnytsa residents have to photocopy the documents themselves, then get them authorized by the administration of the medical institution.  Or telephone to the clinic, trying to find out if they can get a medical certificate. If the forms have arrived, they’ll have to wait in the same queue as ordinary patients. And autumn’s just around the corner, colds, etc. There will l be more patients, the queues will be longer – will there still not be enough forms?

—  “We’ve had the problem with the medical certificate forms for about three months already,” Oleksandr Chaban, deputy head of the department of health care in the city executive committee explains. “And it’s not only in the Vinnytsa region, but in other regions also. The problem is that they’re printed centrally, and ordered only by the Ministry of Health, and they send them to the regions according to the needs of health care institutions. Our request to be provided with the necessary quantity of forms have still not been met … we’re just waiting, together with the people who are ill.

However, according to paragraph No. 8.5 of the Instruction «On the procedure for issuing documents which confirm temporary inability to work” approved by Ministry of Health Order No. 455 from 13 November 2001, in cases where infringements are uncovered in issuing, storing, and registering such documents, the treatment or prophylactic institutions may have their right to issue the documents removed in the legally established manner.

Why must medical employees in the regions answer for problems which those “above” can’t resolve? After all it’s they first of all who should take care of our health.

From the PL editorial office

There is a similar problem in Kharkiv. Doctors from the Ambulance Service have also approached us complaining that instead of the correct forms  they are forced to give patients slips which, as well as the doctor’s signature, also bear an additional signature of the person in charge of the unit and the chief doctor. This means that the medical personnel waste extra time on getting such documents and their patients give them to the management of their organizations with a covering note from the Control-Auditing Administration of Ukraine. Since current legislation stipulates that “a medical certificate is a multifunctional document providing grounds for being released from work due to illness and with material provision for the insured individual in the event of temporary illness, pregnancy and childbirth” (Joint Order  “On approving the form and technical description of a medical certificate and instructions on the procedure for filling in the form on temporary inability to work” from 03.11.2004 N 532/274/136-os/1406», issued by Ministry of Health, the Ministry of Employment and Social Policy of Ukraine, the Social Insurance Fund for Temporary disability and the Industrial accident and occupational diseases which have caused disability Fund)

PS  We have learned that the Ministry of Health has sent a letter to the regions with recommendations as to how to get around the situation with forms for medical certificates. One wonders whether they have agreed this with the relevant bodies.

(an extract from the form)

Bearing in mind the situation, which has arisen in the regions, we suggest in the case of a shortage of medical certificate forms issuing forms with the following information;

Whether the illness is “first” or “repeated”;

The name and address of the medical establishment

The date the certificate was issued

Surname, name and patronymic of the patient

Full age

Full name and address of the institution, enterprise or organization

The patient’s diagnosis

The cause of the inability to work

Where there was hospital treatment, the dates of hospitalization and discharge

In the case of a referral, the date and signature of the head of the medical commission;

The date of examination and conclusion of the medical examination with the signature of the person in charge and st

The period of inability to work, with all relevant dates and signatures

The date of the return to work, giving the post and name of the doctor, and the latter’s signature and the stamp of the medical establishment.  In the case of extension, writing  “remains ill”, in case of death – “Deceased”  and the date of death.

The certificate should be signed by the Head Doctor of the clinic, etc, with the latter’s round stamp. The issue of such certificates is registered in the control register of medical certificates 036/0.

The procedure for issuing and registering such certificates should meet the requirements of the Instruction on the order of issue of the documents testifying temporary disability.

 The Deputy Minister

Y.. Haidaev

Another scandal has broken out in Ukraine – 15 prisoners serving their sentence in a Rivne region penal institution slashed their wrists. Journalists have not been allowed into the colony, and the Deputy Head of the State Department for the Execution of Punishments that it was all “manipulation”, since they had not actually cut their vein, but only made scratches.  And three repeat offenders serving 15 years for murder had organized all of this.

This is the latest scandal this year after the Kharkiv SIZO [pre-trial remand centre] and the Lviv Colony (where a prisoner sewed his lips together).  They say that this will continue if 50 – 100 convicted prisoners are held in one cell, and when those with more authority t have influence over the others.

Recently the Vinnytsa regional prosecutor’s office carried out a check and discovered significant infringements of legislation and international norms on holding people in temporary holding facilities (ITT), rooms for detained individuals in police stations, in the MIA centre for the reception and distribution of vagrants, the pre-trial detention centre (SIZO) and penal colonies of the division of the State Department for the Execution of Sentences. 

– Internal Affairs agencies are not fully satisfying the requirements of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), Deputy Prosecutor Gennady Vyvdych  stated.  –  Infringements were found in almost all institutions. In rooms for detained individuals in police stations there were cases where those suspected of committing crimes were held together with people suspected of committing administrative offences. In the SIZO there were numerous incidents where minors were held in cells together with adults, or where people without previous convictions were together with people who had already been convicted, or even with repeat offenders which is a flagrant violation of the law.

In a number of cases, people had been held in temporary holding facilities (ITT) for more than a month instead of the legally stipulated time limits of 3 or 10 days.  It had been found that they were not always

informed of their rights and allowed visits.  There was an ever greater number of cases where relatives of people detained were not  informed where the person was being held.  Those detained were not always provided with the conditions needed for normal existence, were not taken out for walks, were sometimes not given bed linen, and in a few cases not even a mattress.

Instances have been recorded when, despite cells being vacant, 3 people were held in a cell intended for two

On the part of the police and the State Department for the Execution of Sentences many infringements had been found of legislation on detaining people ill with tuberculosis. These people are not taken for treatment which creates conditions for the swift spread of this serious illness. In the Vinnytsa tuberculosis unit for treating people detained and remand prisoners, 2 wards, functioning since 2004, are assigned for people with tuberculosis, yet by the beginning of 2006, patients were not been sent there. This despite the fact that in  2005 in ITT under the Ministry of Internal Affairs 89 people with tuberculosis were being held, with have having an active form of the disease. In the current year such treatment has begun, but not all those in need are being treated, with only 21 with active forms of tuberculosis, only 10 having been provided with treatment. In the SIZO of the Vinnytsa penal colony No. 1, not all those remanded in custody are provided with the norm for space per inmate, not less than 2.5. In the Mohyliv-Podilsk corrective colony, each prisoner has 1.7 square metres where the norm is 3 square metres.

As a result of infringements of general and industrial safety regulations, and the lack of adequate control by the administration of corrective colonies, last year there were 9 accidents involving prisoners, including one which proved fatal. This year there have already been 6 accidents. The rights of prisoners in colonies and the interests of the state in involving them in work are seriously infringed. Due to this the prisoners do not compensate the expenses incurred as a result of their crime, and are unable where needed to pay alimony. At present, of nearly 5 thousand able-bodied convicted individuals only around 1.5 thousand have been found work.  There are more than 6 thousand people presently in places of deprivation of liberty.

Based on material from the press service of the Vinnytsa Region Prosecutor’s Office

This information was given today at a briefing given in Kyiv by the Head of the Military Service for Law and Order of the Ukrainian Armed Forces Major General Serhiy Hlebov.

The Major General gave statistics for deaths among military servicemen: in 2000 there were 154 deaths, in 2001 – 138, in 2002 – 142, in 2003 – 120, in 2004 – 117 and in 2005 – 102.

Hlebov stressed that if one analyzed these figures, it could be said that there had been a steady trend towards a reduction in the overall number of deaths of military servicemen with different causes. According to him, the smallest percentage of the deaths were connected with carrying out duties, while the overwhelming majority – 60% were where the deaths had been caused by personal carelessness, abuse of alcohol, infringement of basic safety rules outside their hours of service and in their domestic lives, where their commanding officers had no way of influencing events and their results. Hlebov also asserted that these statistic give grounds for averting crimes.

He emphasized at the same time that he was giving these figures not to provide excuses or to claim that all is fine in the army, since for any mother whose son returns in a coffin it is of absolutely no comfort  that last year less men died.

Hlebov also mentioned that legal charges had been brought against 198 military servicemen and employees of the Armed Forces during 2006, with 49 people not being convicted. 5 people had been deprived of their liberty, 11 had been sentenced to limitation of liberty, 13 ordered to serve their punishment in disciplinary brigades, and 47 in guardhouses.

He also stated that with the reduction in the size of the army, the reduction in mortality rates among military servicemen was calculated in terms of the number of deaths per 1 thousand servicemen.  “This coefficient is permanently falling”, he stated.

Over the 7 months of this year there have been 33 cases recorded of physical force applied by commanding officers who had resorted to unbefitting methods of coercion in regard to military servicemen.  Hlebov claimed, however, that “Very often it is the servicemen themselves who directly provoke their commanding officers to use force. …. Unfortunately we must admit that there are people without very high intelligence who go into the army”.

However the Ministry of Defence of Ukraine suggests that the situation should not be over-dramatized since the situation in the Russian army is much worse.

For example, with 307 thousand military servicemen in the Ukrainian Armed Forces, and in the Russian – 1 million 200 thousand, last year there had been 1,019 offences recorded, while in Russia this figure came to 20,390.

Hlebov also stressed that in 2005 102 Ukrainian military servicemen had died while in Russia there had been 1,170 deaths.

On Thursday 31 August 2006, a press conference took place at the Kharkiv Press Club to announce the creation of the Ukrainian Civic Forum (UCF) – the first association of civic networks, movements and organizations from different regions of Ukraine into one network to work together in upholding the interests of civic society.

During the press conference, Yury Chumak, Deputy Editor of the Bulletin of the Kharkiv Human Rights Protection Group “Prava Ludyny” [“Human Rights”] and Mykhailo Khamchatny, Chair of the Kharkiv Regional Branch of the Committee of Voters of Ukraine elaborated on the reasons for the Forum and its plans, and made public the UCF Declaration of principles for civic action

Similar press conferences were held at the same time in Kyiv, Luhansk, Kherson, Lviv, Chernihiv, Vinnytsa, Sumy, Donetsk and in other Ukrainian cities.

Georgy Kobzar

DECLARATION OF THE UKRAINIAN CIVIC FORUM

At the end of 2004 Ukrainians stood up for their rights as a freedom-loving people. A revolution had indeed taken place – in people themselves. Many had lost their fear of the regime or of the opposition. Today a great many people on both sides of the Dnipro are conscious of being citizens who want their role in building their own shared future.

The Ukrainian political elite as so many times before proved unworthy of their own nation. It is not political parties that are represented in the Verkhovna Rada  but groups serving oligarch or other corporate interests. Lack of control by citizens can only fuel their lack of responsibility. Outside Parliament there are also no political parties capable of defending national interests and changing the existing foundations of Ukrainian politics.

National interests are the interests of all of us. We ourselves need to create the mechanisms for defending, coordinating and bringing to fruition these interests. It is only individuals who are free, self-sufficient and aware of their responsibility, by joining together in ever-active civic communities, who can create such mechanisms and renew the true essence of power. Only a society which is self-organized and capable of self-development can become free and withstand fierce competition in today’s aggressive world.

In recognition of the desire of Ukrainian citizens to build their own society, we would propose the following principles for a civic society.

• The state is the result of citizens’ organizing themselves. Society should develop not as the state deems necessary, but in accordance with the needs of its citizens. Only a self-organized society is capable of achieving its own needs.
• The rule of law and an independent judiciary are crucial. The state must be governed by the power of the law and not the power of force. Neglect of the law and lack of respect for the justice system lead to chaos in society and destroy the institutional basis of the state.
• Public participation in decision-making.  Civic society is not possible without structures which safeguard the participation of individuals and their associations in decision-making. All elements of state administration must be guided by citizens’ interests, needs and objectives.
• .Honesty, consistency, responsibility and patriotism are the basis for civic policy. Politicians should represent citizens’ interests. None of their moves should diverge from the principles and platform that they declare. Irresponsible words and actions should be grounds for their resignation or dismissal.
• Effective public control over the actions of the authorities. The weaker this control is the stronger corruption becomes. Only control from responsible individuals and their associations can be truly effective.
• Observance of civic liberties – freedom of information, of expression, of the press, the right to peaceful assembly and freedom of association. We have the right to information in accordance with international standards. The right of citizens to give their opinion of the authorities, to publicly discuss any issues means that the authorities also have the duty to listen and to respond.  Any state official encroaching upon rights and freedoms or ignoring public opinion should be immediately removed from office.

With our aim being to consolidate these principles of civic society, to change the fundamental nature of the power structure, and to compel the authorities to meet the needs of their citizens, we are launching the Ukrainian Civic Forum as an association of free and responsible individuals and their communities on the basis of civic action.

• Recognized, voluntary, responsibility. We are aware that none of us will do what we want, if we don’t do it ourselves. However we would not demand the fulfilment of any commitments not made voluntarily.
• Solidarity, non-violence, tolerance. Our actions are based on mutual trust, mutual respect and mutual assistance. We categorically reject violence as a means of action.  Racial, ethnic, religious, political or any other form of intolerance is inadmissible.
• Honesty, objectivity, reliability. It is unacceptable to think one thing and say something else. Our principle must be “to speak the truth, the whole truth and nothing but the truth”, even if this is not in our favour.
• Openness, transparency. Our aims and actions are transparent and clear, the sources of funding and expenditure are open to the public.
• Independence from political platforms. Our activity is undertaken on the basis of honest cooperation between people with different worldviews and political opinions which are not in conflict with civic principles.  The Ukrainian Civic Forum will not support any party platform in electoral campaigns, and political choice is purely an individual matter. We will cooperate only with those politicians who share and implement our principles.

A cordial invitation to work with us to all who endorse our stated principles and aim, and who can contribute even a tiny amount of effort to ensuring that Ukrainian society becomes truly CIVIC

The Ukrainian Civic Forum has been created through the initiative of the following well-known civic figures from all over Ukraine

What is missing at present In order to achieve the real development of Ukrainian democracy is affirmation of the idea of civic unity.  This is attainable only by in-depth work with members of the public by creating new social links on a civic basis and by means of self-organization of a public system from the grassroots up.

Grounds for optimism can be found in the appearance in Ukraine of a qualitatively new form of civic activity.  Examples of this can be seen in the civic campaign “Pora” in 2004, “Opora”, the Lviv Civic Forum, the “Maidan” Alliance, the Kyiv Rescue Forum, the Kyiv Community Voice, “Night Watch” (Sumy) and many others.

The civic movement is gathering strength and influence by creating a reliable system of communication between different networks and organizations from all corners of Ukraine which are beginning to act together. Such a network (civic community) while not aspiring to direct power, will provide for the authorities tasks and will monitor their implementation.  It is precisely this kind of network that the Ukrainian Civic Forum is determined to become, serving an example through its leaders and activists and demonstrating to the public the possibility for self-organization in order to achieve specific goals and resolve specific problems.

“It will all come true tomorrow. Believe me. Tomorrow.

It will all come true tomorrow.  Hold on”.

It’s these lines that I feel like quoting when I read all the lamentations in articles and on Internet forums about disillusionment, betrayal, tragedy, even despair in life itself, and then next to these the feverish plans for a second Maidan, for hunger strikes, blocking roads, etc. Friends and colleagues, human rights defenders and those attacking them, activists in general! Let’s first calm down a little and try to thing soberly about what needs to be done at present. But let’s first acknowledge that nothing so terrible has happened. Nobody has died a violent death, nobody has been imprisoned on political grounds, nobody is encroaching so very directly on our liberty. We are free to create our own fate as we believe necessary. Sure, many of us believe that the Ukrainian political elite has yet again betrayed its people, and they’re right. However it didn’t begin with us, nor will it end with us, so let’s not make a tragedy out of it. Particularly since none of it is so unambiguous.  And perhaps, after some time we will view recent events rather differently.  In the end everything will work out more or less badly, as the British Lord Bolingbrook liked to say. So let’s speak about what to do so that it’s “less” rather than “more”.  Incidentally, besides undoubted moral losses, disillusionment, etc, we do have certain positive aspects.

Loss of illusions is always a good thing, however bitter reality may prove to be.

In my opinion the main result of the political events of the beginning of August is the renewed functioning of the Constitutional Court. This is much more important than the election of the government.  Governments in Ukraine exist for a year, 18 months, no longer, while the judges of the Constitutional Court are appointed for nine years.  All decisions which were taken in the absence of the Constitutional Court (CC) are basically not legitimate, and could now in theory be cancelled by the Court. 

It was precisely the panic-stricken fear that the CC would abolish the so-called “political reform” (the constitutional amendments from December 2004 - translator) that led to the blocking of the Court’s functioning which is nothing but a usurping of power by Parliament (the Verkhovna Rada). This fear can also explain the naïve idea that supposedly, in accordance with the Transitional Provisions to the Constitution, Parliament has the right to interpret the Constitution in the absence of the CC.  It was the same fear that prompted Parliament to pass Law  №1253, which prohibits (!) the Constitutional Court  from reversing the amendments to the Constitution passed on 8 December 2004. As the saying goes, does the cat realize whose meat it’s polished off!  In my view the passing of just such absurd laws is telling evidence of the constitution abuse of the law which has taken on epidemic proportions in this state body. And the President, who should have used his power of veto, without a murmur signed a law which patently violates the Constitution.

I am certain that the CC will revoke this shameful parliamentary concoction. However the Constitution Court cannot on its own initiative review this issue: it needs to receive the appropriate constitutional submission. The submission can be presented by the President (just as with the law on immunity of deputies of local councils which the President signed, but later turned to the CC with a submission asking about its constitutionality), or by a group of 45 or more State Deputies.  The first task of publicly aware citizens, of society as a whole is, in my opinion, to force those entitled to make such a submission to do so.

The next step would be to make a submission asking for an opinion as to the constitutionality of the “political reform”, that conspiracy of the rich against the poor. The Kharkiv Human Rights Group has on many occasions publicly stated that the amendments introduced to the Constitution on 8 December 2004 are a major threat to human rights. It is therefore most painful to see how all our most gloomy predictions are coming true to the last letter. “Carthagen must be destroyed!”  The simplest step towards revoking the “political reform” would be a constitutional submission for an interpretation of Articles 155 and 157 of the Constitution with respect to whether the procedure for introducing amendments to the Constitution allows for a mutually dependent (“package”) vote, introducing constitutional amendments together with amendments to an ordinary law[1] I believe that the CC will once and for all forbid such “package” votes iintroducing amendments to the Constitution.

The revoking of the amendments to the Constitution is a fundamental issue: the actions of the Ukrainian political sphere must be brought back to law-based tracks. The subjectivism of Ukrainian politicians, the impression they have that they can do what they like in order to achieve their ends is extremely dangerous for the country, as we are observing. It is this that the political forces of all shades, as well as all branches of power, especially legislative and executive are guilty of.  Nothing good can come out of not observing the principles of the rule of law.  The efforts of society, therefore, must be directed at restoring respect for the law, for the observance of all necessary procedures. The first step in my opinion will be to demand that politicians revoke the “political reform” by means of making a constitutional submission.

I believe that we must support key reforms which have already begun or are being prepared – in the judiciary, with legal aid for the population, criminal justice, etc. One can expect that bodies of executive power and administration will again, as in Kuchma’s time, begin putting pressure on the courts to safeguard their own clan interests and privileges for business close to them. Court reform is aimed at strengthening the independence of the courts. We must support this in all ways available to us.

There are many who think that with the coming to power of the new government basic freedoms, for example, freedom of speech and of business enterprise, will be curtailed, and that state coercion and pressure will be heightened. In my view such perceived threats are exaggerated. The new administration is significantly restricted in its actions by many factors. Nonetheless a certain degree of regression may take place, particularly in eastern and southern parts of the country. There one can expect the return of all patterns of the domination of the authorities over business. Freedom of private enterprise which is already much too restricted now faces a serious risk, with small and middle-size businesses likely to suffer.  It would be desirable, therefore, for civic organizations to join forces with trade unions of businesspeople and to not allow any case involving illegal actions by agents of the state to go unanswered, to providing information about such incidents, ways of countering them, civil suits. The Code of Administrative Justice  provides an excellent tool for educating the bodies of power and administration, and we need to learn to use it. The same applies to potential incursions on freedom of speech.

In fact one could say the same about any unlawful activities of the state in all spheres – each must be appropriately dealt with. In order to respond, and even better, to prevent such activities, wide-reaching civic control is needed over the activities of all bodies of power and administration, both at the national, and at the regional levels. In order for this control to be real, and not a mere fiction, we must ensure real openness and transparency of the authorities, and for this people need to be informed. It is therefore exceedingly important to get amendments to the Law “On information” passed which must ensure the highest possible level of information parity between state and society. Under conditions of access to information it is also possible to  exert influence on the formation and implementation of the budget, to know about the decisions of bodies of power and administration on publicly important issues, to monitor the implementation of such decisions, to evaluate their results, etc. We would also mention Code of Administrative Justice provides the opportunity for appealing against the unlawfulness of normative legal acts  of bodies of power and administration at all levels. The Code effectively introduces the concept of the potential victim, it provides the chance for some individuals to file suits demanding the revoking of this or that normative legal act which may infringe their rights and liberties. There is no requirement that the person who files such a suit on having such an act revoked be the direct victim of the force of the given act.  This concept may, on condition that the public become active in this, significantly change the relations of society and state.

How can we carry all this out?  I would suggest using the experience of human rights organizations in creating specialized networks of civic institutions and individuals regularly overseeing the affirmation and safeguarding of a special right or group of interrelated rights and carrying out a whole range of tasks on addressing the issues which arise with exercising this right or group of rights. Examples here would be defending the victims of violations, awareness raising, monitoring amendments to the normative legal basis and practice, both administrative and of the courts, drawing up and lobbying such amendments in the interests of society. Such networks should include regional institutions which can defend victims of violations and gather information at a regional level, and oversee decisions taken by local bodies of power and administration, think tanks which can analyze regional information, study foreign experience, carry out the relevant research and which are oriented towards participation in decision-making at a national level.  They also need individual specialists in the relevant field – analysts, experts, lawyers, etc, who can be called upon to undertake specific tasks involving analysis, development of methods, representation in court, etc. This approach in my opinion can be applied in the case of any public issue, be it social orphans, the reform of the municipal housing system or the quality of secondary education. In order to create such networks one needs effective means of communication. I think that the best way of self-organization would be to use such websites as Maidan (www.maidan.org.ua)  Civic Realm (www.civicua.org), and others.

An important issue is that of communication with the authorities. In my view it would be desirable to ensure a regular active roundtable (say once a month) between representatives of the authorities and the public, and to broadcast this on nationwide television channels and radio stations, like the roundtable of 27 July. Each session would address a specific issue and specialists in that area would take part – the highest-level state specialists and public experts. Whether our politicians and government officials will agree to such a step only time will tell.

Thus we have our work cut out?  I would end with the same poem:

“And still, the victory is not so very important,

After all we haven’t abandoned the struggle.”

[1]  The Law on constitutional amendments was passed on 8 December 2004 together with laws making amendments to electoral legislation aimed at ensuring that the re-run of the second round of voting was not also marred by flagrant vote-rigging.  As has been repeatedly stressed, these laws and constitutional amendments were part of a package deal agreed between different factions in the Verkhovna Rada  (translator’s note)

That’s what we can see with our own eyes. An almost blissful existence. The Prime Minister, as one of his fellow party members said, for ever. The opposition on holiday. The President, or so it would seem, in shock. He didn’t expect such a reaction, the poor man, «urbi et orbi». And what should have been expected?  The Constitutional Court is functioning, then it’s not functioning… So in fact the country remains ungoverned. Well, at least that’s how it seems to us. And our politicians can do fine without the third branch of power. Why should they need a court, prosecutor, police, you understand, they get under your feet!  God, if you only knew how sick of you we are  At the same time the lack of any thinking or balance within spheres crucial for the country is staggering. Not by oil alone … There’s also education. And medicine (if it exists at all!), and communal services, and children’s homes and homes for the elderly. I understand that Ukrainian citizens do get in the way of the regime. And in general one could dream of creating in time a kind of ideal electorate for the regime which only became conscious (and then not fully) during the elections. The rest of the time pensioners, unemployed young people and also children would just sleep. The others, working in institutions needed by the state, i.e. serving the authorities, would be like robots each carrying out their function. In fact you’d send them out to vote in the same state. And what difference anyway – choose, don’t choose, no odds

“And then the good times came,

And nobody more to kick and but!”

K. Chukovsky

An ideal electorate for an ideal regime. If the regime doesn’t want to be with the people, why, one may ask, not abolish the latter?  Of course in our country, and in fact on the entire territory of the former USSR they really tried, they drove into the ground around 100 million, and look they’re still there. Yes, over recent times, over 15 years of democracy the regime and the people have made real efforts and reduced the population of their independent country to several million, but the tempo is still feeble. Not every new “government” is a new hope. Not ours – theirs – the regime’s.

How many years has the draft law on medical insurance been rattling around in parliament, comrade deputies?  I’m asking our present, not yet quite deputies now. Because however I look, there are terribly few new faces in parliament. They’ve been receiving their salary, as I understand, for a long time, and well, passing laws, that’s not a deputy’s business. Like it’s not a doctor’s business to treat patients, or a teacher’s to teach, or a journalist’s to write. And what’s more important – it’s not their business to think. That’s hardest of all. Especially when freedom of speech has burst forth. Think, speak – I don’t want to. Yeah, and we cant’. We only know how on various state and non-state commission to feed citizens with all kinds of political manipulation drugs.

Let them sniff those drugs, like glue.

And dear comrade deputies (because in general you were always and have remained comrades), do you know that it costs around 500 UH (around 100 USD) to keep a patient in a critical care unit for one day?  And now, tell me, how many of those citizens you so love have that kind of money?  What is the minimum wage at the moment?  You don’t know. Yours is a bit higher. Just a bit. Yes, and a clinic in Feofaniya I assume, not the central district hospital. So you will soon efficiently deal with the task of reducing the population of our unhappy and painfully independent country.

There’s Sevastopol, it’s true. Putin recently declared it a Russian city right up to 2020. If the reduction of the population continues then the Black Sea Fleet will I guess reach Lviv. “On dry land, like by sea”. All the necessary requirements, dear comrades, you’ve already created. And our government is for ever, the opposition on holiday, the President in shock.  And all the sheep are full, and all the wolves, as written above, intact. And what about the situation with language – brilliant! Not one Ukrainian newspaper in the kiosks near me!  But we will protect Russian.

Some reference information for those who haven’t forgotten how to read: “According to statistics, the population of our country is changing. As of 1 July there were 46 million 756 thousand people in Ukraine. This is 180 thousand less than the figure for the same time last year.  (“Metro” newspaper, № 7 (7) 23 August,  2006 года, based on figures from the State Committee of Statistics)

Nadiyka, beloved friend!

I waited each day in such fear of the news. And now it has come, and there are no words to express to you Love and Honour worthy of you. 

You were for me, and doubtless for thousands of people in Ukraine and in the Diaspora – living Ukraine, the embodiment of our principles, our conscience.

You were and are all that is best in Ukraine – honesty, kindness, unstinting commitment to people and to your unceasing work for them, for Ukraine’s freedom, independence and culture.

You were peaceful, gentle.  And you were always uncompromising, with no tolerance for opportunism, for lack of principles, pretence, hypocrisy and ostentatious patriotism.

Precisely for that reason you became in the West the spirit and clear-thinking political mind of the Ukrainian struggle for human rights and for Ukraine’s nationhood, you were the heart and moving force of that struggle, especially in your work for the External Representation of the Ukrainian Helsinki Group and later of the Ukrainian Helsinki Union.

Your tact, your humour, your courage, the light of your being, so whole and in harmony, will remain in our hearts all our days.

Eternal Memory and Everlasting Peace, to you, our beloved friend.

Former Member of the External Representation of the Ukrainian Helsinki Group and the Ukrainian Helsinki Union

Leonid Plyushch

Tatyana Plyushch

To Fellow Ukrainians, and to the honoured Ukrainian Community!

Ukrainian custom dictates that during a funeral we speak those words of parting which we believe the Deceased would herself have said.  Yet clearly none of us could hope to utter those special words of love which Nadiyka bestowed upon us – the charm of her voice was unique.  Just as unique was the trace that she has left in the heart and in the life of each one of us.  Yet before Nadiyka’s body finds its eternal resting place on Ukrainian soil, on land so wronged and trampled upon, so seeped in pain and suffering, I would like to address a word to America and those good people there.

The wind of history periodically becomes a storm for gentle Ukrainian flowers and drives them either to the East, to Siberia and Zeleny Klyn (the far east of the former USSR), or to the West, to the vast expanses of the United States or Canada. The wind carried Nadiyka to that far off shore and it was God’s great blessing to her that that shore became for her a hospitable refuge. We all know that her life was never easy. However she was able to achieve such important, I would say mission-like, work for Ukraine only thanks to you, her enormous and ever-reliable support. Nadiyka has now fallen silence for ever, yet we, her friends, can bear testimony to the real gratitude which filled her heart to all of you. Gratitude that you tended her wounds, greeted an exile and gave her shelter. That you took her in and shared with her your hard earned bread. Among you she found the willingness to give of yourselves which she had lacked in Ukraine amid a spiritually devastated people.

Nadiyka was able to part with almost each one of you during her courageous preparation for that final journey. Few are able to leave this life with such true Christian dignity. Today the branch of that distinguished Svitlychny family, known to the entire Ukrainian Diaspora by that tender and family-like name “Nadiyka” is parting with you for the last time. May all earthly matters which divided you fall away! May those moments in which human nature let itself be heard louder than was needed be forgotten!. May the Lord take her purified soul, cleansed by our love and fondest memory, for all of us can testify before God that hers was truly a worthy life and one of immense giving.

I beg you not to be angry that we have taken Nadiyka from you. She was in truth Ukraine’s Cultural Attaché, and such “diplomats” must return to their native land. However send with her a handful of American soil. May it be blessed for sheltering our ever-remembered Nadiyka!

NADIYA SVITLYCHNA has passed away in her seventieth year. We have lost our most faithful and irreplaceable sister, our guide in adversity, and ally during the years of tyranny and persecution for free thinking.  She was a modest woman who by her very presence to a large extent defined the moral climate of the Ukrainian dissident milieu in the 1960s.  Without her it would be difficult to conceive of the phenomenon of those Ukrainian women who quietly opposed the vicious communist madness on our soil, retaining the customs within the family and faith in her heart. It was Nadiya Svitlychna who created a buttress of healthy sanity against the feverish Godlessness which tried to turn all that is most sacred into building material.

Her parents, rural workers from the Starobilsk district, in the Luhansk region, raised three children in honest poverty, and managed to give them all a higher education. Nadiyka began school from the second grade as she was already able to write a letter to her father at the Front. Childhood was “somehow forgotten”.  It was followed by her years at Kharkiv University, then teaching in the Donbas area. Like Vasyl Stus, she arrived in Kyiv in 1964 and found herself in a cultural oasis. She came to her brother, Ivan Svitlychny, and took part in literary evenings, singing groups on the banks of the Dnipro (river), trips to the Carpathian Mountains where she truly discovered Ukraine.  However the main thing in her life was her cultural and educational work and circulating truthful information. “We circulated samvydav [samizdat] as widely as we could, and acted as though we were doing it legally”.  It was in this that her ability to work untiringly became apparent, as well as her talent for helping and her commitment to people. In this she became very close to the artist Alla Horska and even worked with her on mosaics in Donetsk.  It was Nadiyka who washed her wounds and prepared her body for its final resting place.

They were like two Samaritans who, without yet knowing the Gospel, had turned to Christ , seeking the Water of Life.

The work record book of Nadiya Oleksivna Svitlychna has over thirty entries indicating dismissal from jobs which testifies to the level of fearless liberty attained by the former head of a school in the Donetsk settlement of Antratsyt

It was from her brother that Nadiya learned tolerance in dialogue which was a skill she applied after her arrest in 1972, when she trained the investigators to speak with her in decent language, and also to write down in the protocol her response: “I will not answer that question on moral grounds”.

Of course this “luxury” had a high cost. She was put in cruel and desperate situations. They took her child from her and place him somewhere in a children’s home. After four years of harsh regime labour camp she faced harassment once again. And when they finally understood that no force would break her conscience, they flung her with two small children, and without the necessary documents, out of the country.

However there she found a “huge family”, “very many good people”. And she set to in her usual way, uniting isolated fellow Ukrainians for the sake of liberating their native land. They valued her stand, not purely political, and quite clear: “It would be beneath my dignity to remain a citizen of the world’s largest, most powerful and most developed concentration camp”.

Together with former General Petro Grigorenko, she published “Visnyk represiy v Ukraini” [“Bulletin of repression in Ukraine”] and gradually became the cultural attaché abroad for Ukraine suffering repression.

Nadiya Svitlychna’s life was one, first and foremost, of constant and selfless work. Deciphering labour camp manuscripts smuggled out of the country, putting samizdat archives in order, preparing the manuscripts of Ivan Svitlychny, Vasyl Stus, Mykola Horbal and many, many others – all of this was by her efforts or with her unfailing participation.

Her name became well-known throughout Ukraine from 1982 when she was invited to make a series of programs about her “criminal case” on Radio Svoboda [Radio Liberty]. For a lot of people this would have been envisaged as some kind of extended autobiography. In Nadiya Svitlychna’s understanding, however, this was the tale of all Ukraine suffering repression, of its best people whom she had been honoured to meet in her choice of “the narrow path”.  Then she had her own regular radio program – “Journal of Hope[1]” which drew listeners from Ukraine, and not only.

Nadiya Svitlychna’s voice was heard on Radio Svoboda for twelve years and for many it was hard to imagine their life without that voice.

And here we would stress that this was the heartfelt, Christian voice of hope – to the indifferent, the disillusion, to those of little faith, to the weary and the yearning. In those years her voice gave hope and joy.

We became accustomed to Nadiya Svitlychna’s presence on the air as though to a promise of change for the better. The motto of the Svitlychny family’s Cossack past: “God grant us understanding” and “we will be”.

Nadiyka’s visits to Ukraine were not to any one person in particular – they were to us all. She was well up on “all her own”, on our lives, health, children – as though she had never left.

That is indeed what it means “to love your neighbour as yourself”.

She left this life with grace, tranquillity and bearing, preparing for that moment as custom demanded, and not losing her sense of humour to the end. She took her parting with all severe words “with God”, with faith that we are all equal, and that the order is not important.

God bless you, Sister, and everlasting peace.

And we will sing “Vichna pamyat” [“Eternal memory”] with abiding faith in every word.

the Sverstyuk family

the Stus family

the Kotsyubynsky family

the Horbal family

the Stokotelny family

the Zinkevych family

the Zalyvakha family

the Kalynets family

the Marchenko family

the Dziuba family

the Kostenko family

the Ovsiyenko family

the Suhonyak family

the Shevchenko family

the Obertas family

the Proskura family

the Rozumny family

the Dvorko family

the Odarych family

the Sevruk family

the Semykin family

the Ovdiyenko family

the Matviyenko family

the Plakhotnyuk family

the Lisov family

the Dovhan family

the Zakharov family

the Kipiani family

the Marynovych family

the Maksymchuk family

the Antonyuk family

the Plyushch family

the Hel family

the Popadyuk family

Svyatoslav Karavansky

the Fishbein family

the Skipalsy family

Stefaniya Shabatura

the Feinber family

the Matyus family

[1]  Nadiya in Ukrainian means “hope”  (translator’s note)