“Prava Ludiny” (human rights) monthly bulletin, 2013, #07

The investigators are claiming that Yury Barabash was involved in causing damage to a car during the events on 18 May, although photographic evidence shows him clearly only trying to record what was happening

As reported Yury Barabash, photographer and Russian national, working for a Ukrainian publishing company in Ukraine, was on 15 July removed from the train carrying him back to Ukraine from Russia.  A member of the VO Svoboda Party, Serhiy Bondar was on 22 July detained on charges over his participation in actions on 18 May (when the Party of the Regions organized “antifascist” actions as a counter to the opposition’s “Rise Ukraine” rally).  Bondar is accused of damaging a special purpose vehicle and “of inflicting bodily injuries” to a number of people (“passengers of the BRDM car”).  One of the names mentioned in the protocol placed on the table in front of Bondar as being involved in unlawful activities is that of Yury Barabash. 

Another photographer, Oleh Shpak from the TV channel “New Odessa” has, however, provided video footage which shows clearly that Yury Barabash did not take part in any of the scuffles and was simply photographing the event.

A Channel 5 journalist Olha Snitsarchuj and her Komersant Ukraine photographer husband Vlad Sodel first began photographing the scuffle on 18 May.  Snitsarchuk was attacked with the police standing there and doing nothing.  Her assailants were not mentions of VO Svoboda, and appear to have been hired as “guards” for the “antifascist” events.

The Security Service [SBU] has not given much detail about why Yury Barabash has been prevented from re-entering Ukraine.  With photographic evidence that the accusations against him are unfounded, this is even more unclear.

During a protest by journalists and others last Tuesday outside the SBU, a spokesperson asserted that he had been refused entry “in the interests of the State”. 

Yury Barabash has been an active critic of the current regime. He has often photographed street protests and was among the people detained during a demonstration on Independence Square to mark the 8^th anniversary of the Orange Revolution. 

A lot of people nowadays say that there’s no need to stir up the past, that it’s time to stop talking about the crimes of the Soviet totalitarian regime; that we need to think about the future. At the same time a gradual change is taking place in public thinking. The vast majority of young people know nothing about the mass crimes, while Ukrainian communists insist that Stalin was great and want to put up a monument to him in all regional centres of Ukraine. On 5 May 2010 in Zaporizhya communists erected a monument to Stalin on the territory adjacent to the Zaporizhya Regional Committee [obkom] of the Communist Party.  Over the last four years for 9 May in many cities there have been billboards posted with images of Stalin – in Sevastopol, Luhansk; there were also such plans with regard to Dnipropetrovsk and Odessa. As the First Secretary of the Odessa obkom of the Communist Party Yevhen Tsarkov said: “Victory and the name of Stalin are inextricably linked. “If not for people like Stalin there would have been no Victory”.

In my view, it is simply blasphemous to speak of any positive role played by Stalin in the Second World War.  It was due to his dictatorial butcher-like policy that the country faced huge human losses, far more than those of the Allies and Germany. “We simply didn’t know how to fight. We inundated the enemy with our blood, our dead bodies”, the eminent writer and War veteran Viktor Astavyev wrote with bitterness. In fact we were victorious in the Second World War not thanks to Stalin, but in spite of him.

Erecting a monument to Stalin is about the same as if neo-Nazis wanted to erect a monument to the other terrible murderer and tyrant of the XX century Hitler in Germany or Austria.

A monument to Stalin is an outrage and affront to the tens of millions of his victims and their relatives. Ukrainians understand that. It is no accident that a public opinion survey has shown that a majority of Ukrainians – 56.7% - are against this initiative.

At the same time I can see no legal grounds for prohibiting the monument. The court ruling issued by the Kyiv Court of Appeal on 13 January which found Stalin, Molotov and others guilty of the crime of genocide in relation to Holodomor 1932-1933 was only a preliminary court hearing into a criminal case and does not therefore give grounds for a legally significant classification of the crimes of Stalin and the other six accused. There has been no other court ruling about the criminal nature of Stalin’s actions and those of the communist regime. International agreements to which Ukraine is a party contain no overt bans.

The consequences of the crimes of the communist regime in the USSR and in particular in Ukraine are terrible, and concern “both the dead, and the living, and those unborn” (Taras Shevchenko). As well as millions who died of starvation and political repression, and those unborn which in itself had significant impact on the genetic makeup and development of the Ukrainian nation, these crimes had a bad effect on those who survived.  

Holodomor and the destruction of the Ukrainian intellectual elite which it was prohibited to know until the end of the 1980s led to a break in the intellectual development of the Ukrainian people, a loss of identity and common values. The tragedy of Holodomor also resulted in a subconscious inferiority complex among a large number of Ukrainians.

Nonetheless the attitude in Europe to Stalin and communism is somewhat different from that towards Hitler and Nazism which can easily be seen in numerous resolutions of the European Parliament, the Parliamentary Assembly of the Council of Europe [PACE], the Committee of Ministers of PACE, OSCE. Of particular relevance to Ukraine are Items 5 and 6 of the PACE Resolution No. 1481 (2006):

“5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).

6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.

Post-genocidal Ukrainian society badly needs a clear conscience, liberation from psychological complexes, freedom from fear. This is impossible without public acknowledgement that the actions of the communist regime were a crime which must take place at the level of law. This is the moral duty of the nation before those who died, it is necessary for historical justice, the development of an immune system for the Ukrainian people against political repression, violence, unwarranted state coercion.

In Europe the attitude to Stalin and communism differs little from the attitude to Hitler and Nazism which can easily be seen in numerous resolutions of the European Parliament, the Parliamentary Assembly of the Council of Europe [PACE], the Committee of Ministers of PACE, OSCE. Of particular relevance to Ukraine are Items 5 and 6 of the PACE Resolution No. 1481 (2006) “The need for international condemnation of the crimes of totalitarian, communist regimes”

““The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).   Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.  The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.

Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings”.

In the judgment of the Constitutional Court of the Russian Federation, passed on 30 November 1992, it is clearly stated: “In the country over a long period there was a regime of unlimited power, based on violence, on a narrow circle of communist functionaries united in the Politburo of the Central Committee of the Communist Party headed by the General Secretary of the Central Committee”.

The list of crimes of the Soviet regime beginning from 1917 is extremely large with it including a huge number of events and occupying many papers. The following is therefore only a list of the most serious and significant crimes of the communist regime, confirmed in documentation (compiled by the Memorial Society)

The Red Terror which, in accordance with a Soviet Government Resolution from 5 September 1918 introduced the taking of hostages, extra-judicial executions and concentration camps for the “socially alien” layers of society and political opponents.

Mass repression against the peasants, dekulakization, deportation, arrests and executions at the ruling of OGPU Secret Police] “troika” [threesomes].

The mass-scale requisition of grain for state storage and sale abroad, organized by Stalin and the Politburo. This resulted in a manmade famine from which between 7 and 12 million people died in the USSR, including 3.5 to 4.5 million of the population of Ukraine in 1932-1933.

Mass arrests and executions in the so-called “kulak” operation of the NKVD. These were executions according to prior quotas from July 1937 to November 1938 (767397 were arrested, and 386798 executed).

Mass arrests and executions on ethnic grounds as part of so-called “national operations” of the NKVD (German, Polish, Kharbin, Latvian and others) July 1937 – November 1938 (around 350 thousand people were arrested, of whom around 250 thousand were executed).

Mass arrests and executions of citizens of Mongolia carried out by the NKVD in 1937-1938 1938 (around 25 thousand people were arrested, of whom around 20 thousand were executed)

Repression against members of the families of those convicted of “treason”. In 1937-1938 as “members of the families of traitors against the motherland” more than 18 thousand women were arrested and 25 thousand children placed in NKVD children’s homes.

Executions and convictions according to “execution lists” where the punishment was not determined by court bodies, but by Stalin and his close henchmen from the Politburo – Molotov, Voroshilov, Kaganovich, Zhdanov, Mikoyan and others. From February 1937 to October 1938 sanction was given for the conviction according to 383 lists, containing 44 thousand names, of whom 39 thousand were for execution.

Sanction from Stalin for the use by the NKVD during investigation of “measures of physical influence”, i.e. torture. The telegram signed by Stalin on 10 February 1939 confirmed the “lawfulness” of this practice adopted in 1937. In later years Stalin continued to give sanctions for the use of torture, for which in the case of the doctors in 1952-1953.

The non-aggression pact with Germany and secret protocols on spheres of influence of the USSR and Third Reich. In accordance with these, the USSR began seizing neighbouring territory, taking part in the destruction of Poland, beginning a war with Finland and occupying the Baltic States and Bessarabia. The Soviet Union was accused of aggressive expansionist policy and expelled from the League of Nations. August 1939-Summer 1940.

The sanctioning by Stalin and the Politburo of mass deportation of the civilian population on the grounds of “class” or ethnic origin. - deportation of Poles from Western Ukraine and Western Byelorussia in 1939-1940;

- deportation of citizens of the Baltic Republics and Moldova in May – June 1941;

- deportation of Germans, Kalmyks, Chechens and Ingushis, Karachayevtsi, Crimean Tatars and others between 1941 and 1945;

- deportation of “kulaks” from the Baltic Republics and Moldova in 1949’

- deportation of Ukrainians during the second half of the 1940s for “abetting the UPA” [Ukrainian Resistance Army].

The mass execution of Polish prisoners of war and civilians at the decision of the Politburo on 5 March 1940 during April and May 1940 by the NKVD at Katyń, Mednoye and Kharkiv. 21, 857 Polish nationals were murdered.

Extra-judicial executions ordered by Stalin of prisoners in Autumn 1941, in the Orlov and Moscow prisons and in Kuybyshev.

Acts of individual terror sanctioned by Stalin personally – secret political killings carried out by the Security Service abroad and in the USSR.

Show trials organized at Stalin’s instruction by advisers from the Soviet Security Service in Hungary, Bulgaria and Czechoslovakia in 1949-1952.

Ukrainian society and the authorities face an urgent task of establishing a legal classification for the crimes concerning Ukraine listed above and many others, for example, the repression against Ukrainian churches. And the truth told about our history and the crimes of the communist regime. The better this task is carried out, the smaller the legacy left our children and grandchildren. I

We will give one example regarding the third item in the above list and consider the issue of retroactive force of the law.

All conditions have been created in Ukraine for holding a full court trial for a legal classification of the artificial famine of 1932-1933 on the basis of the material of the investigation carried out by the SBU in 2009.  The government should support such a trial. In fact there is no doubt that Stalin and his henchmen are guilty of the mass murder, and the communist totalitarian regime for which mass terror was the style of state governance in the USSR was in itself criminal. However it is necessary to establish these facts in a legal framework.

In our study we demonstrated that the famine in Ukraine of 1932-1933 had all the hallmarks of a crime against humanity in accordance with the Rome Charter of the International Criminal Court 1998 and the crime of genocide in accordance with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide

The object, subject, event and makeup of the crime of genocide have been established, as well as its motive and the direct intent to commit this crime.  The object of the crime is defined as a part of the Ukrainian nation – the victims of Holodomor and political repression in Ukraine from November 1932 to August 1933 regardless of ethnic, religious or other grounds;  the subject – the party-state machine of the Communist Party headed by Joseph Stalin and the punitive repressive bodies of the OGPU and GPU of the Ukrainian SSR, as well as the USSR as a whole.

Can one however apply the provisions of these international agreements with regard to events in Ukraine 1932-1933, and in keeping with them classify Holodomor 1932-1933 as a crime against humanity and act of genocide? Do these international agreements have retroactive force in the given case?

An affirmative answer to this question is argued in the following way. According to Article 1 § 1 of the European Convention on the Protection of Human Rights and Fundamental Freedoms from 1950: «No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed». This fundamental principle is enshrined in the first paragraph of Article 15 of the International Covenant on Civil and Political Rights. The second paragraphs of these same articles of both the Convention and the Covenant states that offences shall be punishable if at the time they were committed, they were considered crimes “according to the general principles of law”.  For example,   Article 7 § 2 of the 1950 Convention reads that: “«This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.»  On the basis of this provision, some researchers have concluded that the Convention on Genocide can have retroactive force.

However Article 7 § 2 of the Convention and Article 15 of the Covenant have not been implemented in Ukrainian legislation. Their direct force is denied by Article 58 of the Constitution which strictly, without any exceptions, establishes the principle that there can be no retroactive force of a law: “Nobody can be held accountable for actions which at the time they were committed had not been designated as crimes in law”. We have an obvious clash between the norm of Ukraine’s Constitution and the norms of Article 7 § 2 of the Convention and Article 15 of the Covenant.  Where there is a discrepancy between the norms of Ukraine’s Constitution and the norms of an international agreement in Ukraine, the Constitution has force. Thus at the present time we cannot reach settlement and define Holodomor 1932-1933 as genocide. For that the Constitution needs to be changed, including in Article 58 the above-cited wording of Article 7 § 1 of the Convention. 

A poignant anniversary in Zaporizhya on Sunday coincided both with the lavish ceremonies laid on in Kyiv to mark the 1025th anniversary of the Baptism of Kyivan Rus and with the release from forced psychiatric treatment of Raisa Radchenko.

The 70-year-old civic activist is now back at home after a Health Ministry commission on 26 July organized her discharge.  Her release from forced confinement in a Zaporizhya psychiatric hospital is much to be welcomed however this is no unclouded happy ending.  Her daughter is facing two administrative charges of “obstructing” the police for behaving as most of us would if close relatives were being dragged away against their will for unnecessary psychiatric “treatment”.  It seems clear that the authorities were forced to respond after immense public and international pressure, but have no intention of learning any lessons from the occasion.  Quite the contrary: the commission, it is reported, “established, firstly that treatment was timely; secondly that the treatment of the patient was adequate. All of this made it possible to considerably improve her state of health. Therefore the possibility is being considered of changing the form of treatment from hospital-based to outpatient.”

In other words, the psychiatrists are vindicated, as is the court which saw no problem with ordering the activist’s forced confinement and „treatment”   This was despite a diagnosis at least as questionable as the above-mentioned commission’s conclusion.

Raisa Radchenko is finally free, thanks almost certainly to public concern.  

The bomb blast in the Svyatopokrovsk Orthodox Church in Zaporizhya on 28 July 2010 and later events also received considerable media coverage.  Yet despite the very widespread belief that the three young men charged with the crime are innocent hostages to a promise made to the President on State television, there has been disturbingly little effort to obtain their release and a full investigation into their allegations of torture. 

The bomb exploded, causing fatal injuries to an elderly nun, during an afternoon service on 28 July 2010  Although it occurred exactly a year to the day after a court ruling over a land dispute involving the Church, the investigators do not appear to have ever looked into this.  This is not because they found a compelling alternative version.  There is no evidence against the young men – only seven “confessions” which all three men have said were obtained through torture and threats.

Anton Kharitonov, a suspended sacristan of the Church, was taken to the police station on the following morning after President Yanukovych issued an order on television to find the culprits within the week. The protocol of detention was only drawn up 13 hours later, around midnight, before the first of four “confessions”. 

Anton’s brother Serhiy Dyomin was taken into custody that night. 24 hours later during a night interrogation he “confessed” to having made the bomb. When explosions experts placed his ability to make such a bomb in question, he confessed to having bought the bomb “from an unidentified individual”. A second sacristan – Yevhen Fedorchenko – was arrested a few days later and supposedly also confessed.  

Two forensic psychological assessments effectively confirmed the use of unlawful pressure. Judge Minasov simply ordered a third, which denied any pressure. The judge turned down the application for all three forensic psychologists to be called for questioning. The same judge ignored serious infringements and turned a blind eye when the prosecution, after a year and a half, changed the indictment to eliminate all three young men’s alibi.

There was no evidence of guilt, plenty of grounds for fearing a grave miscarriage of justice, yet at the beginning of April Judge Minasov sentenced the men to 14 and 15 years imprisonment.  The appeal hearing was due at the beginning of July but then unexpectedly postponed and the file sent back to the Zhovtnevy Court “to rectify inaccuracies”.  What this means is unclear and defence lawyers are concerned that attempts may be made to falsify the records. 

There has been no investigation into allegations of torture and other violations of the right to a fair trial. Although the Ombudsperson did – quite rightly - intercede in the case of a Nigerian student held in detention for well over a year, her Secretariat has consistently asserted that she cannot get involved. 

The position of the European Court of Human Rights is entirely unequivocal in all cases where there are multiple confessions, well-founded fears that they were obtained through unlawful methods of influence, and no other evidence.  However the European Court’s backlog is huge and in any case all domestic avenues must first have been exhausted. 

Three young men are beginning their fourth year in detention, with no news on their appeal, and near silence.. If the policy is deliberate, it is frighteningly effective. 

Vitaly Pogosyan. lawyer defending Dmytro Reva, one of the men accused over the Dnipropetrovsk bomb blasts on 27 April 2012 writes that Reva has now been in custody for more than a year though there is no proof whatsoever of any guilt.

“It is difficult to understand the logic of those who keep him behind bars with effectively no grounds. The defence is therefore inclined to seek judgement beyond Ukraine.

I have been Dmytro Reva’s lawyer since his arrest.  I would like my version, that of Reva’s defence, to be heard by the public and the authorities.

Terrorist acts are too dangerous for those charged with them being simply chosen from chance passers-by. In that situation any of us can be made a terrorist just as anyone, without the conscience, honour or necessary knowledge, often becomes somebody who determines people’s fate.

On 27 April 2012 there were four bomb blasts which hurt several dozen people. On 31 May four people were arrested on terrorist charges.

Since November the trial has been underway in the Industrialny Court in Dnipropetrovsk.

Within several days of the bomb blasts three identikit pictures of people believed to be involved were circulated in the media, and then several days later yet another identikit.

On 28 May the head of the relevant branch of the SBU [Security Service] for the Dnipropetrovsk oblast issued a report to the investigators “regarding contacts” of the two men who were already under surveillance – V. Sukachev and V. Fedoryak. 

That report points to 14 people who it says could be aware of Sukachev’s alleged involvement; and 5 people who could be aware of Fedoryak’s alleged involvement.

Among the 14 people was Dmytro Reva.  However, according to the report, he in no way stands out in ways that would warrant particular attention.

Unlike the father of one of the suspects who had died a month earlier, yet was, according to the report, still under surveillance.

At the same time on 31 May 2012 investigation teams arrived at the homes of Sukachev, Fedoryak and almost all the people on the report lists. Searches were carried out.

During the search of Dmytro Reva’s flat one of the officers Pylypenko made a telephone call from Reva’s mobile to the mobile of Sukachev.  In this way evidence was fabricated to suggest that Reva had decided to tell his accomplices of a possible search.

The fact that Pylypenko made the call and not Reva was later established by the investigators. The Prosecutor’s Office was as a result forced to exclude this part of the indictment. 

However on 31 May 2012 it was that supposed call which served as grounds for remanding Reva in custody.

Nothing was found in his flat which could in any way suggest his involvement in terrorist activities.

In legal language a person known to be innocent has been charged with criminal liability, and evidence has been falsified. This falls under Article 372 § 2 of the Criminal Code. 

Vitaly Pogosyan repeats some of the details already reported here a number of times, and these are omitted.

Despite the fact that no evidence of Reva’s involvement in the terrorist acts, the arrest protocol from 31 May 2012 states “witnesses directly point to the given person as the person who committed the crime, and in his home clear signs of a crime envisaged by Article 258 § 2 of the Criminal Code were found”.

This is total fabrication.

It became clear in October when we were able to read the file material that not one person, neither any of the accused or witnesses, identified Reva as implicated in the crime.

Reva himself, during a long interrogation on 1 June, gave an extremely detailed account of what he did on 27 April. All of it has been proven irrefutably, through testimony of witnesses; records on his mobile phone; cctv surveillance, etc.

The author points out that he, as Reva’s lawyer, provided some of this proof to the court on 2 June 2012.   This should in itself have been sufficient to convince the court that Reva was not involved.  As should the fact that the phone call used to justify his remand in custody had been falsified.

He notes also that the appeal against the detention order was heard after it was demonstrated that the phone call from his flat on 31 May 2012 had been made not by Reva, but by SBU Officer Pylypenko.

And yet the appeal was rejected (as have been later applications for Reva’s release).

In reading the case material, we found six reports from the head of the relevant department of the Dnipropetrovsk Regional SBU stating that there was no information to suggest that Reva was aware of the alleged terrorist activities of Sukachev or anybody else.

Thus the constant references to “investigative data” to justify keeping Reva in detention are also fiction – there was no such data. 

As of early July 2013 there have been eight applications to change the preventive measure and release Reva from custody.  

The author notes that during the court hearings the prosecution has not asked Reva even one question which could indicate any involvement in criminal activity.

No other defendant have denied any involvement in the terrorist acts.  Yet the Prosecutor General’s Office has asserted to the press that all proof is available.

According to a specialist on criminal law, Professor Mykola Khavronyuk, has given an assessment of the charges.  He states that there are no elements of a crime in Reva’s impugned activities. The prosecution has claimed that Khavronyuk is a theorist, whereas they are involved in practical work.

Vitaly Pogosyan notes drily that nobody needs investigative prosecutor activities formed as a result of ignoring the lack of any evidence of guilt and on the basis only of the investigators’ and Prosecutor’s opinion. 

The defence will be using all means within their disposal, and have already applied to the European Court of Human Rights.  They have no doubt that the judgment will be in Reva’s favour, but this is at some future date and Reva remains in custody now.

„I am convinced that in this case some kind of compromise can be reached, beginning with an immediate change in preventive measures – then Reva as the victim of investigator-prosecutor indifference and disregard for the law will find it in him to be charitable to his present-date tormenters.

They probably also have children, like Dmytro Reva

Abridged from the text by Vitaly Pogosyan, defence lawyer  here

Ukraine’s leaders are presently falling over each other in their haste to express concern regarding a brutal rape and subsequent popular revolt in the town of Vradiyivka.  President Yanukovych has apparently complained that he was not phoned when residents stormed the police station where one of the police officers identified by the victim was being shielded from prosecution. 

The President’s words sound good until you ask yourself what actions would have been taken. The answer is, unfortunately, by no means clear.  A recent ban on any peaceful protest at all outside the President’s Administration until the end of 2013 is particularly telling.  The ban was issued in response to a picket by the mother of a small disabled child who had gone on hunger strike in a desperate attempt to attract the President’s attention to their plight.

Although the authorities have presently backed off from initial attempts to bring charges over damage during the popular protest in Vradiyivka, local residents anticipate repressive measures once emotions subside and the media loses interest. 

During Yanukovych’s presidency, the number of peaceful protests banned has risen markedly, as have entirely inappropriate measures involving the Berkut riot police against protesters.

What is particularly disturbing is that a bill just registered in parliament on freedom of peaceful assembly, even if passed, might not necessarily improve the situation.  This latest ban, as well as its predecessors, cites, in verbose if unconvincing fashion, domestic and international legislation in alleged justification for restricting the constitutionally enshrined right to peaceful protest.

The application to ban two peaceful protests outside the President’s Administration came, as usual, from the Kyiv City State Administration, but was purportedly prompted by the Kyiv Police.  They had stated that the protests would arouse disgruntlement from ordinary members of the public, obstruct the normal functioning of the authorities; and, most incredibly, jeopardize the safety of people under State guard.

Judge Keleberda of the District Administrative Court in Kyiv didn’t stop at half measures, but in a 16 June ruling, just made public, banned any protests on the relevant streets to the end of the year. 

Since the Constitution does not specify how much prior notification must be given, documents of dubious legality, such as a decree from the now long-defunct Soviet Union, are frequently used to prohibit gatherings where it s claimed, insufficient warning was given. In this case there was even some justification since both organizers appear to have notified of their plans on the very day that their protest began.  Judge Keleberda mentions the infringement, but clearly feels more is required. 

Not surprisingly since one of the notifications was from 14 January 2013, and the other was issued on 6 June.  If the police had not been given time in advance to organize any extra efforts to safeguard public order, they could certainly have done so by the time the application for a ban was lodged. 

Two protests were thus underway when the ban was issued.  Since – according to the judge – risk to national security must be considered, some detail seems called for.  On 14 January the Kyiv authorities were notified of the continuation of an indefinite hunger strike and protest by up to 50 people with the use of banners and loudspeakers,   The aim seems modest enough – to draw the President’s attention to rights infringements by his subordinates. 

Why a protest involving a picket by a mother wanting the President to know about the problems she and her small disabled child were facing proved the final straw for the Kyiv Administration and the Police is not easy to understand. 

Fathoming how such protests could threaten national security is quite simply impossible, yet Judge Keleberda was not daunted by the task.  He cites among others Ukraine’s Constitution and the European Convention on Human Rights to demonstrate that restrictions on peaceful assembly may be needed if the protests could jeopardize national security or the rights of others. 

With the broad scope of the Law on the Principles of Ukraine’s National Security to set him off, it was a mere hop, skip and a jump to yet another blanket ban.  The court, he says, believes it possible that this indefinite hunger strike could infringe “the interests of national security and public order”.  The court has concluded that the indefinite use of loudspeakers violates public order and the rights and freedoms of residents of the adjacent buildings, while “protests planned for outside the President’s Administration create difficulties in organizing the State protection of President Yanukovych and other public officials …”

Since public access per se demands the appropriate security measures, are we to assume it a matter of time before the public are banned altogether?  For three years now all plans to hold entirely peaceful protests outside Yanukovych’s controversial residence at Mezhyhirya have resulted in court bans.  A blanket ban recently stopped any peaceful protest outside the Prosecutor General’s Office for two months. 

A law on peaceful assembly is undoubtedly needed, but can only provide deceptive gloss where the courts restrict the fundamental right to peaceful protest claiming this to be “in defence of other people’s rights” or citing nebulous considerations of “national security”.

Ukrainian courts have become lavish in quoting international documents and the European Court of Human Rights, while brazenly ignoring a key demand – that any restrictions be needed in a democratic society.  The bans rapidly becoming commonplace in Ukraine are needed only by those who fear the public and want them to go away.

As Vradiyivka showed, they won’t. 

The Parliamentary Assembly of the Council of Europe [PACE] recently adopted its Resolution “Corruption as a Threat to the Rule of Law”.  Ukraine is mentioned more than once and not in a positive light.

The state system in Ukraine remains steeped in corruption.  The PACE used the Transparency International Corruption Perception Index to draw up its own perception index from among members of the Council of Europe.  Ukraine is in bottom place, below Albania, Azerbaijan and Russia. According to the survey even those Ukrainians who have not personally suffered as the result of corruption are convinced that corruption is rampant.

Mailis Reps, the author of the Resolution told the Deutsche Welle Ukrainian Service that although Yanukovych made the fight against corruption one of the slogans in his presidential campaign, there has been no particular progress over the last few years.

She says that certain legislative efforts can be seen and that the fact that the existence of corruption is acknowledge is already a big step.  On the other hand, there is virtually no evidence of practice measures.

As well as habitual trivial corruption where bribes are paid to the police, doctors, court staff, etc, in Ukraine and throughout Eastern Europe, corruption is also typical based on connections. She believes that this comes from Soviet times, but that Ukrainian politicians have this in mind when they promise to fight corruption, but rather bribe-taking.

Mailis Reps says that she concentrated her report on how corruption affects rule of law. She stresses that corruption can undermine the foundations of the court system, the Prosecutor’s Office’s activities as well as the public’s believe in law.

She says that there must be decent salaries for court staff, police, the tax administration and there must be a real risk of losing your salary and your pension if you are caught taking a bribe.  

However she believes that the main motivating force would be personal example from MPs.  They must begin with themselves and stop feeling above the law.  She is convinced that the political initiative to fight corruption must come from parliament.

From a longer report on the Deutsche Welle Ukrainian Service

Ihor Parfenyuk, who was gravely ill, has died in the Kherson Prison Colony  The prison administration had applied to the court for his early release, however neither HIV, nor hepatitis C, nor tuberculosis of both lungs and the intestine were deemed grounds for the courts to release a person on health grounds and allow him to receive proper medical care. The application was rejected.

According to his mother, Ihor already suffered from tuberculosis when detained;  HIV and hepatitis C were contracted in the prison colony. The illnesses were discovered during an examination at the end of 2012 when Ihor’s health worsened. There was no possibility of treatment in the colony therefore in April 2013 the prison administration applied to a district court in Kherson for him to be released early. The refusal by this court was then upheld by the court of appeal. Ihor turned to the Kharkiv Human Rights Group in order to appeal against those rulings, however did not have time to discuss the substance of the appeal. On the morning of 14 July he suffered a stroke, by the evening was already unable to recognize anybody and couldn’t speak.  Ihor died in the evening of 16 July.

His mother, Hanna Fedorivna, says that they were told that Ihor was being treated in the colony. We also bought and brought him medicine, yet Ihor didn’t get better, on the contrary. Ihor had a high temperature for almost a year and complained that he was burning inside. Two weeks before the stroke he suffered headaches; weakness; staggered while walking. In that state with such a diagnosis in prison conditions he had little chance of survival.

KHPG lawyers point out that legislation does allow for early release for people with grave illnesses who can’t receive proper treatment in the colony. However, most often the courts reject applications for their release.  Most often the grounds for refusal are formal, without any study of the circumstances and state of health of the prisoner.  The courts simply note that there are convictions and claim that the person could commit a new crime, even thought the person cannot even move about by himself

Lawyers from the KHPG Legal Aid Network for People living with HIV and drug addicts are planning to initiate procedure for investigating how Ihor came to be infecting with HIV in the colony. They also want to raise the fact that the system for early release is not working. 

A 70-year-old civic activist remains in a psychiatric hospital against her will with the glimmer of hope provided on Thursday by the Human Rights Ombudsperson not immediately bringing her any closer to release. Valeria Lutkovska stated that a delegation including psychiatrists who examined Raisa Radchenkor on 17 July expressed doubt that forced hospitalization was needed.

Since a court in Zaporizhya on 15 July disregarded the highly questionable nature of the psychiatric assessment, as well as objections from Ms Radchenko, her family and lawyer and ordered her forced psychiatric treatment, more pressure is needed to secure her release, and to ensure that the spectre of punitive psychiatry is laid to rest – hopefully once and for all. 

Amnesty International has issued a second urgent action demanding that 70-year-old Raisa Radchenko be discharged now, in advance of an independent assessment, and for the harassment of her daughter and grandson to stop.  An appeal in Ukrainian was launched on Thursday with the same demands.

Most former Soviet political prisoners, whether held in labour camps or psychiatric hospitals, later spoke of how important it was to know that people in the West were campaigning on their behalf.  Not one or two, many. 

In the light of Thursday’s conviction of Alexei Navalny in Russia and the disturbing way Ukraine has been following Russia’s repressive lead in the last three years, it is surely time for Ukrainians and others concerned to see rule of law in Ukraine to take a more proactive role where there are grounds for fearing that motives are at play that have no place in a democratic society. In the two cases mentioned here, and in others, public scrutiny is vital.

Raisa Radchenko has long campaigned against corruption in the housing and communal services sphere and on other issues.  At the end of May she gave a coherent and compelling interview explaining why she launched a petition for the dismissal of the Mayor of Zaporizhya.  Her activism, as well as the vehement protest from her family and neighbours to her forced hospitalization, aroused concern and considerable media attention well-beyond Zaporizhya, with Amnesty International issuing a first Urgent Action on 16 July. 

The Human Rights Ombudsperson Valeria Lutkovska stated on Thursday that the case had been under her personal control from 12 July.  If so, it is regrettable that nobody from the Secretariat saw the need to examine Raisa Radchenko and then attend the court hearing on 15 July.  Ms Lutkovska has said that she will be attending the appeal hearing however it is not clear when this will be. 

One undoubted benefit of the delegation’s visit was that it identified an attempt by the police to apply pressure on Raisa Radchenko’s daughter, Darya, by inventing an “anonymous report” as pretext for visiting her home, purportedly to see whether her son should be taken away from her.    

While the degree of public concern has probably been instrumental in preventing Raisa Radchenko from simply disappearing into a psychiatric ward, there is precious little else to say that’s positive about this case. 

According to Darya Radchenko, her mother had never had any treatment and the psychiatric opinion confirms that she was at the hospital for the first time.  There are doubts about the motives of those who apparently lodged complaints, and even the opinion which ends with asserting the need for hospitalization describes a person with strong convictions and an adamant rejection of the “treatment” proposed.  Without any brain scan, and with no real clarity as to how they arrived at their conclusion, it is then stated that “that she has a “personality and behaviour disorder – as the result of organic damage to the brain (cerebral arteriosclerosis, hypertonic illness); paranoid syndrome with aggressive actions”. 

Raisa Radchenko’s lawyer has been prevented from seeing her client; Darya Radchenko has also encountered obstruction. This is in a situation where the hospitalization has been challenged and the appeal not yet heard.  Particularly telling was the refusal by the court on 15 July to allow an independent assessment. 

Psychiatric health is a specialized field, and should, ideally, be left to professionals. Unfortunately this requirement makes the scope for abuse great, as we know from Soviet times. Most of us have no access to full information and those who do have the access and authority are by no means always willing to react.  This inevitably creates a dilemma since public attention and “noise” are needed to force the authorities to act yet may prove unfounded.  The risk, however, of saying nothing and hoping that those who have clout will use it, is great.

This time the concerns would seem to have been warranted, and pressure is now needed to ensure that Raisa Radchenko is released and that the harassment of her family stops. This is not only in defence of one elderly woman committed, as she says, to doing her best for coming generations.  The ongoing detention and trial of Dmitry Reva on charges which a prominent legal specialist has dismissed as containing no crime, have demonstrated how the rot spreads in such situations.  Not only have the Security Service, the police, Prosecutor’s Office and courts been guilty of serious infringements, but even the State-controlled UTV-1 has, in the absence of any evidence, been deployed to convince viewers that Reva is a terrorist.  With Raisa Radchenko, the court’s refusal to allow an independent psychiatric assessment suggests that it was aware of failings in the assessment provided to get an elderly civic activist into a psychiatric institution and “treated” with various psychotropic drugs.  Police officers’ behaviour in trying to put pressure on Raisa Radchenko’s family shows similar complicity. 

The Chief Psychiatrist claimed that Raisa Radchenko could pose a danger to others. The real public danger, however, surely lies in the corrupting effect when psychiatry, the courts, the police and even television are deployed to silence dissenting voices and mislead the public. 

Russian protest leader Alexei Navalny has been sentenced to five years in jail for theft and embezzlement.  Judge Sergei Blinov said the anti-corruption campaigner had defrauded a timber firm.

Navalny has always insisted the trial was politically motivated, due to his opposition to President Vladimir Putin.

Minutes before he was handcuffed and led away, he urged his supporters to continue his struggle, tweeting: "Don't sit around doing nothing."

The 37-year-old had been a leading campaigner against Mr Putin's United Russia party, and regularly blogged about allegations of corruption.

Navalny had recently said he would like to stand for president. He has already registered his candidature for Moscow mayor.

Resigned manner

Navalny arrived at the courtroom in Kirov to hear the verdict, after a 12-hour overnight train journey from Moscow.

The BBC's Moscow correspondent Daniel Sandford said Navalny smiled in a resigned manner when the almost inevitable guilty verdict came.

Navalny was found guilty of heading a group that embezzled 16m rubles ($500, 000, £330, 000) worth of timber from the Kirovles state timber company while working as an adviser to Kirov's governor Nikita Belykh.

Navalny's co-accused, Pyotr Ofitserov, was also found guilty, and given a four-year jail sentence.

"Navalny... committed a grave crime, " said judge Sergei Blinov as he delivered the sentence.

Judge Blinov said he found the testimony of the main prosecution witness, Vyacheslav Opalev, to be "trustworthy and consistent''.

Navalny insists that Mr Opalev spoke against him out of revenge, because Mr Navalny had recommended he be fired and his company investigated for corruption.

After the verdict, Navalny tweeted: "So that's it. Don't get bored without me. Most importantly, don't sit around doing nothing. The toad won't get off the oil pipe by itself."

In his LiveJournal blog on Wednesday Navalny said: "The current authorities are not a big, healthy fish, but rather a bloated fish or Latin American toad, which puffs itself up when it sees danger, with the help of television."

The protester above has a placard reading that the amendments (unfortunately passed after this) to the law on NGOs is the path to fascism

Two St. Petersburg courts have refused to classify the Memorial Anti-Discrimination Center (ADC Memorial) as a “foreign agent” under recent legislation, the NGO’s director Olga Abramenko said at a news conference on Wednesday, July 3.

On May 27, Judge Olga Glushanok dismissed charges against the NGO for not registering as a “foreign agent” and for not labeling a brochure containing ADC Memorial’s report for the UN Committee Against Torture as published by a “foreign agent.” The judge ruled that the charges were unsupported by the evidence at hand and returned the case to the prosecution for further investigation.

Later, prosecutors appealed to the Leninsky District Court, but their complaint was rejected on June 27.

On April 30, ADC Memorial became the city’s first NGO to be prosecuted under the new “foreign agents” law, in force since November 21, 2012.

According to the law, NGOs that receive any funding from foreign sources and “conduct political activities” are required to register as “foreign agents.” Virtually all of Russia’s NGOs have refused to register, arguing that it would stigmatize them as acting on behalf of foreign governments. Human rights organizations across the world have criticized the law as an attempt by the Kremlin to stifle criticism under the guise of countering foreign influence.

In March and April, massive inspections of hundreds of NGOs across Russia were held. About 40 NGOs were inspected in St. Petersburg. According to Abramenko, a five-member team — a prosecutor, two police officers as well as representatives of the Federal Service for Consumer Rights Protection (Rospotrebnadzor) and the Emergency Services Ministry — arrived at ADC Memorial’s offices for inspection.

Although originally claiming the inspection was conducted under counter-extremism legislation, the team examined documentation, software licenses, fire safety measures and even whether or not the NGO’s employees had recently had chest x-rays as part of healthcare requirements, Abramenko said. They then ordered that more than 3, 000 pages of documents be copied and submitted to prosecutors.

Eventually, prosecutors used the ADC Memorial report on human rights submitted for review by the U.N. Committee Against Torture as evidence, branding it “political activities.” According to prosecutors, the report, called “Roma, Migrants, Activists: Victims of Police Abuse, ” contained “calls for confrontation with the authorities.” The organization responded that the publication only recommended the respect of human rights and the rule of Russian and international law.

On May 27, Judge Glushanok exposed a large number of violations in the prosecution’s evidence and dismissed their accusations as being unsupported by the evidence. She ruled that the organization could not be legally charged with two offenses under the same law and found that proper grounds for the inspections were lacking.

According to the ruling, the allegation that the NGO was being financed from abroad was not proven by the prosecution. There was also no evidence that ADC Memorial held or financed political rallies aimed at “changing state policy.”

Glushanok also pointed out that the time and place of the alleged violation was missing from the evidence, while the prosecutor who conducted the inspection had no jurisdiction, being from a different district.

According to Abramenko, the prosecutors later appealed to a higher court without attempting to improve their documentation, but Leninsky District Court Judge Natalya Malinina dismissed the complaint. She ruled that a case returned to the prosecution for further investigation could not by law be heard in a court of appeals.

“The courts […] demonstrated that independence, respect of the spirit and letter of the law, and, most importantly, of the meaning of justice can overcome lawlessness and abusive practices by prosecutors during inspections, ” ADC Memorial said in a statement.

“We would wish such a highly professional approach and adherence to principle for all the judges who happen to preside over such cases.”

Previously, however, two St. Petersburg NGOs were found guilty by courts based upon the “foreign agents” legislation. The LGBT rights film festival Side by Side received the maximum fine of 500, 000 rubles ($15, 500) on June 6. The LGBT rights organization Vykhod (Coming Out) was fined 500, 000 rubles on June 19, and its acting director Anna Anisimova was fined 300, 000 rubles on June 25.

Sergei Chernov

On Thursday Moscow Tverskoi District Court, with presiding Judge Igor Alisov, “convicted” Sergei Magnitsky who died in a Russian SIZO or detention centre three years ago.  He was found guilty of tax evasion, together with his former boss, William Browder who was tried in absentia. 

A Russian court has convicted the late lawyer Sergei Magnitsky of tax evasion in an unprecedented posthumous trial. His death in prison four years ago prompted widespread criticism from human rights activists.

Judge Igor Alisov found Magnitsky guilty on Thursday alongside his former boss, US-born British citizen William Browder, who was tried in absentia, Russian news agencies reported. Both men were convicted of evading some $17 million (12.96 million euros) in taxes in Moscow’s Tverskoy District Court.

As Russia Counterattacks, Magnitsky-List Supporters Remain Optimistic

by Richard Solash and harles Recknagel

Proponents of internationally blacklisting Russian officials implicated in the 2009 death of whistle-blowing lawyer Sergei Magnitsky know they face a determined foe in Moscow.
They hope to persuade other countries to follow Washington’s example in creating a "Magnitsky list, " which refuses entry to 16 officials implicated in the attorney’s prosecution and death and freezes their assets. Activists in Britain and elsewhere are urging their governments to adopt a larger list of 60 names published by the U.S. Helsinki Commission.
How much Russia wants to push back against these initiatives was on ample display on July 11 as a Russian court sought to discredit the efforts by finding Sergei Magnitsky guilty, posthumously, of tax evasion.
Similarly, the court sought to discredit the main international campaigner for Magnitsky sanctions, William Browder, by convicting him, too, of tax evasion and sentencing him in absentia to nine years in prison.
But if Moscow is again underlining its readiness to fight the list, those seeking to get more countries to adopt it say they are undeterred.
What progress the Magnitsky list proponents are making -- and how high the stakes are -- were equally on display this week ahead of the Russian court decision.
The center of attention was Britain as London and Moscow apparently engaged in a complicated ballet over whether London is ready to blacklist Russian officials implicated in the case even without formally adopting a Magnitsky list.
U.K. ’Magnitsky List’ Mentioned
The drama started with a report by "The Daily Telegraph" that the country’s immigration authority had taken measures to assure listed individuals could not enter the United Kingdom.
The newspaper noted that a statement by Immigration Minister Mark Harper had been published on July 8 in the British Parliament’s permanent record.
"The Home Office special cases directorate is already aware of the individuals and has taken the necessary measures to prevent them being issued visas for travel to the U.K., " Harper stated.
The statement was in reply to a question submitted in April by British Member of Parliament (MP) Dominic Raab asking the minister if any of the 60 people named in the U.S. Helsinki Commission list had visited Britain during the past year. Raab is a vocal campaigner for Britain to adopt its own Magnitsky sanctions.
...And Then Un-Mentioned
Within hours, the news was picked up by the Russian press and caused a furor in Moscow.
A clearly surprised Foreign Minister Sergei Lavrov questioned whether it was an accurate statement of London’s position. "We have not received any official notification from British authorities on this matter, " he said. "Furthermore, Britain’s authorities have previously stressed, more than once, that they were not going to introduce any such lists."
What followed next was an apparent backtracking by the British government. On July 9, Harper requested that his original answer to Raab be struck from the parliamentary record and replaced with a more cautious one.
In his new response, Harper wrote: "We are aware that some individuals have been linked to the arrest, detention, and death of Sergei Magnitsky. Any application for a visa to come to the U.K. will be considered on the individual merits of the case in line with our usual practice."
"The Daily Telegraph" reported that the government had realized that its "unguarded statement could prove hugely sensitive at a time when the U.K. is trying to build a trade bridge with Russia to help British exporters."
Proponents See Progress
But if some observers saw the events as a measure of London’s reluctance to talk about sanctions openly, proponents of a U.K. Magnitsky list viewed the flap positively.
"Regardless of the histrionics from the Putin regime, I think the government here has made it pretty clear that those 60 are subject to flags that would go up if they ever try to enter the country, " Raab told RFE/RL. "And I think it would be, actually, politically very contentious if subsequent to the answer, even as clarified, it were to be found out that they had entered the country. I think that alone makes it very unlikely that they ever would."
Raab called that a step forward in the longer fight to get Britain to adopt legislation that could enact visa bans and asset freezes against Russian officials connected to the Magnitsky case.
"This is part of a step-by-step process towards a U.K. Magnitsky act. I think we’ll get one, " Raab said. "I’m not quite sure what form and I’m not sure whether it will be sooner rather than later, but actually, this is two steps forward and one step back rather than the reverse."
Browder, the CEO of U.K.-based investment firm Hermitage Capital Management, who was Magnitsky’s client when the lawyer uncovered fraud, told RFE/RL he doubted that the British government’s revision makes any difference in practice. "I don’t think that they did visa bans and then they undid visa bans, " he said.
Moscow Shows Its Teeth
"What seems to be going on is the same thing that has been going on in just about every country in the world, including the United States, which is that the situation surrounding the Magnitsky case is so horrible that most governments can’t with a straight face not do something about it, " Browder added.
​​"But at the same time, the Russians are so evil in their approach towards anybody wanting to do something about it that governments are scared."
When the United States slapped visa bans and asset freezes on 18 individuals in April, the move was a hard-won victory for lawmakers, who overruled the Obama administration’s opposition. Moscow responded with its own blacklist of U.S. officials and a ban on adoptions of Russian children by U.S. citizens.
Sanctions supporters have since turned their focus to Europe, where Russian officials more frequently travel and keep more of their assets.
They have faced a struggle there as well. Repeated calls by the European Parliament to enact EU-wide Magnitsky sanctions have gone unheeded. In May, Ireland dropped plans to impose Magnitsky sanctions after Moscow threatened a ban on Irish adoptions of Russian children.
The 37-year-old Magnitsky died under allegedly torturous jail conditions in 2009 after implicating Russian officials in a scheme to steal $230 million from state coffers. He was then prosecuted by some of the same officials he had implicated.
Moscow has failed to convict any of the dozens of individuals that supporters, Western lawmakers, and NGOs say were behind Magnitsky’s prosecution and death. His case has come to represent Russia’s troubling record on the rule of law and human rights.

http://rferl.org/articleprintview/25043502.html

Memorial condemns the trial now underway in Moscow as fundamentally flawed and reminiscent of the worst Soviet traditions, including attempts to find a “conspiracy” where there was none

Memorial has issued a statement regarding the court case over “mass disturbances” on Bolotnaya Square on 6 May 2012.

“This event would scarcely be attracting any serious attention if it were indeed a routine trial of demonstrators involved in clashes with the police.  Such clashes occur in any country. In democratic countries if these confrontations do not cause grave consequences they are not usually viewed as a serious offence since the right to take part in demonstrations is viewed as vital.

On 6 May 2012 nothing took place which warrants the term “mass disturbances”, neither from a legal, nor a layperson’s point of view. There were no serious police injuries, no broken windows; no overturned cases; no attempts to use weapons by demonstrators. The public has not been given any convincing evidence of criminal intent in the actions of the demonstrators.

There are on the other hand any number of examples of unprofessional actions by the police resulting in clashes and inappropriate use of police force.

During the investigation the Investigative Committee immediately and emphatically came out on the police’s side. The bias of the investigators; the exaggerated classification of the events by the investigative bodies; the crowds of investigators looking into a standard clash; the inappropriate detention measures imposed by the courts all in themselves deserve close public scrutiny.

However there is yet another sinister aspect of the “Bolotnaya Case”, reminiscent of our country’s tragic past – namely the search for a “conspiracy”.

Ignoring what is obvious and all commonsense, the investigators are trying to fabricate a group case and uncover a conspiracy where there wasn’t a whiff of one. In the worst national tradition, they are looking for a “foreign link” in the 6 May events – and finding one.  It turns out that unfriendly Georgia for the mind-blowing amount of 30 thousand dollars was planning to overthrow the Russian regime. This idiotic concoction which the successors to Dzerzhynsky and Andropov doubtless played a role in is shamelessly and in concentrated manner being pushed by the government-controlled media.

All of this forces us to think that the “Bolotnaya Case” should not be seen as an ordinary criminal case, but as a political trial.

The political motivation of the demonstrators’ actions was clear and in itself does not give any immunity from court prosecution where they did in fact break the law.

However the political motivation is also clear in the actions of the law enforcement bodies and this is categorically inadmissible. A fair trial should free the defendants and terminate the proceedings merely on the grounds that the investigation was run with bias and dishonestly, in the interests of the regime and not of the law.

Unfortunately all that has taken place so far in the “Bolotnaya Case” gives no grounds for hoping for a fair trial.

Whatever the outcome, this trial will demonstrate to the country and the world what kind of state Russia represents at the present time – a police state or one based on law.

2 July  Memorial

The Soviet poster from HRO, org reads: We’ll unmask and destroy them

In a project entitled “Unity through Difficult Remembrance*”” Polish and Ukrainian students have recorded stories of the terrible massacres in Volyn during these months in 1943.  In memory of the victims – men, women and children, entire villages.  In honour of those Ukrainians who interceded in defence of Polish neighbours and Poles who defended their Ukrainian neighbours under siege. 

We owe such young people gratitude at a time when politicians and others with an ideological axe to grind aggressively foist their interpretation of the events of that time.  There are attempts, for example, to stir up emotions by convincing people that the statement of the Polish Sejm to mark the 70th anniversary of the events in 1943 accuses the “Ukrainian people” of a crime they didn’t commit.  It is the Organization of Ukrainian Nationalists [OUN] and Ukrainian Insurgent Army [UPA] that are accused not the Ukrainian people, and these are not synonymous terms.

Politicians’ cynicism is, as always, boundless. 148 MPs from the ruling Party of the Regions and Communists have just written to Poland’s Sejm asking them to “declare the Volyn Massacre by the OUN-UPA genocide of the Polish population and condemn the actions of Ukrainian nationalists”.  

This is in keeping with Party of the Regions tactics of late, seen most ignominiously in the “antifascist demonstrations” of 18 May with their lavish use of administrative resources and hired thugs. How much more befitting it would have been for them to write to President Yanukovych asking him to change his mind and join Poland’s President Komorowski at a remembrance ceremony in Lutsk on 14 July to honour both Polish and Ukrainian victims of the tragedy.

Over recent months Ukrainian media sites have been full of articles talking of the “Polish side” and “Ukrainian side”.  Where children were axed to death because they were Polish, or Ukrainian, there can be no “sides”.   Those who committed such atrocities committed a foul crime whatever motives they used to justify their actions. 

It is profoundly frustrating that seventy years after those events, the accounts in Ukrainian and Polish are so different, and most Ukrainian history textbooks make it next to impossible to understand what happened. 

Arguments about numbers of victims, Polish attempts to classify the massacre as genocide are eagerly used to imply the existence of two separate “memories”.  Many such attempts are made by Ukrainian supporters of OUN and UPA who reject Polish charges that there was a policy of ethnic cleansing ordered by the Bandera supporting faction of OUN.   Most arguments are unfortunately at the level of rhetoric, whereas their position would be better served by unemotional reference to facts and documents, including proof that other documents are Soviet forgeries.

They have a valid right to defend their position.  What neither they, nor Polish nationalists, are entitled to do is to try to minimize or distort historical facts in order to push their line. 

The facts are basically known, including the key perpetrators.  The first massacre of an entire village – Parośla – was carried out on 8 or 9 February 1943 by a unit of UPA led by Hryhory Perehynyak which had just carried out the first armed attack against the Nazi occupier.  Ukrainian publications mention the attack on the Germans, but most avoid talking about the village.  According to historian Grzegorz Motyka, at least 155 villagers were massacred.  Much is known about the events thanks to the testimony of a survivor, Witold Kołodyński, 12 years old at the time.  He can to this day show the marks on his skull from the axe wound he sustained.

During the following months, and especially in July and August 1943, there were widespread attacks on Polish villages by Ukrainians, with the bloodiest massacres on 11 July.   Although plans to drive the 8% Polish population out of Volyn had been discussed earlier, there remains controversy over how much this was known and approved by the leadership of the Bandera branch of OUN-UPA.  A particularly fateful role in the carnage was undoubtedly played by Ukrainian auxiliary police who had served the Nazi occupiers and began defecting in large numbers during those months.  Many joined UPA and took part in what is now known as ethnic cleansing.

As well as desperate attempts to defend themselves, there were also revenge massacres of Ukrainian villages by Poles.   

This is not an attempt to give a historical account of these events.  Whatever Ukrainians saw as their grievances against Poles, whatever grounds for wanting revenge there may have been, the victims were children, innocent civilians, and there quite simply can be no justification. 

Nor is there justification in politicizing painful memories, or distorting historical facts.  Attempts to place the ethnic cleansing in Volyn 1943 in some kind of “broader context”, which includes the crimes committed against Ukrainians during the Operation Wisła are like attempts by many Russians to deny the very specific nature of Holodomor by adding it to the unquestionably huge list of Stalin’s crimes.   

On 27 June in Warsaw, Sviatoslav Shevchuk, Patriarch of the Ukrainian Greek-Catholic Church asked forgiveness from “every Polish family who lost relatives at the hands of my compatriots”.  I can say it no better.

* Pojednanie przez trudną pamięć. Wołyń 1943 / Поєднання через важку пам’ять. Волинь, 1943

Updatied version of a text first published here