... PLUS «DEKUCHMIZATION» OF THE WHOLE COUNTRY
The events of November and December have forced Ukrainian society to confront tasks which can no longer be brushed off as needing attention some time in the vague and distant future. Any velvet revolution is followed by a velvet restoration which swiftly turns vicious if it meets with no resistance. We presently have just such a moment where civic society can and must extend the frontiers of freedom and firmly defend the territory wrested from the State.
In practical terms, this means the review and change of the most important laws on human rights and fundamental freedoms, and, accordingly, a transformation in legal relations. However, new laws alone will not work if the repugnant semi-feudal social system, where only proximity to those wielding power guarantees privileges and benefits remains intact. If fiscal pressure continues to make it impossible to work without stealing, then everyone will remain vulnerable before the full power of the State edifice and will be forced to continue paying dues («you have to share!»)
In the final analysis, people and their relations are more important than the laws which consolidate these relations. If it was precisely moral decay that became one of the main reasons for the social crisis which triggered off the Orange Revolution, then it is first and foremost vital to achieve a change in the moral climate in society. Let us just remember that we have several months only, a year at most, to get these processes started and to make them irreversible.
Ukrainian society needs first of all a process of purification, a rooting out of the immoral system of social relations which were reasserted under Kuchma, but which became entrenched back in the communist regime. What is meant here is a process similar to the «denazification» of Germany after the Second World War or the «decommunization» of the Baltic States and of the Wyszegrad Four (Poland, the Czech Republic, Slovakia and Hungary) at the beginning of the 1990s.
In Ukraine, this process of tracking down and eliminating the remains of the communist era should probably be called «dekuchmization», since Leonid Kuchma, whose name was not for nothing used to describe an entire era, symbolizes the present regime and is personally answerable for the moral decay of society. At the same time, we must recognize the fact that we all bear responsibility for Ukraines present state, all without exception.
So what should «dekuchmization» entail? The following steps are crucial.
1. Firstly, society must be given the opportunity to find out the truth about the crimes, the pillaging and the self-aggrandizement of the regime which is ending. We must declassify and make public the countless decrees of the President, the Resolutions of the Government and other normative acts which, under the illegal stamp «For official use only» (OU), «not to be printed», «not to be published» conceal information about the corruption of high-ranking officials and those executive bodies which serve them, these being the State Administration of Affairs, the Constitutional Court, the High Council of Justice etc. The Kharkiv Human Rights Protection Group (hereafter KHRG) has been monitoring such acts through the computerized system «League:Law» and can confirm that sometimes in the space of a month as many as 10% of Presidential decrees have been classified as secret.
Each time when their contents have become publicly known, it has transpired that what was involved was cases where the President was bestowing gifts upon himself or his loyal retinue (the Resolutions regarding the notorious State Administration of Affairs (SAA) whose budget exceeds that of many ministries, for example financing for the Ministry of Transport, or the directives on supplementary payments to members of the High Council of Justice etc) or on concealing elicit deals (for example, the agreement between the companies «Gasprom» and «Naftohaz Ukrainy» on creating a gas consortium). The «National program for the development of energy policy up to 2010», adopted back in 1996 with no public discussion whatsoever, remains hidden under the stamp «OU» to this day.
Review is urgently needed of «The list of items of information that constitute State secrets», which is unjustifiably broad, sometimes to the point of absurdity (with the number of employees of the Customs Service and the results of prosecutors office checks into complaints of human rights violations being classified State secrets), as well as of the actual procedure for making classifying information.
2. Court cases connected with political persecution of the opposition, as well as of the business interests supporting it, must be reconsidered. Examples here would be the case of Bank Slovyansky, that of the Ingulets terrorist act of 1999 (Kuchma recently pardoned Serhiy Ivanchenko on the petition of his wife, however the other figures in this case remain in prison, and the compensation to victims, if paid at all, has been pitiful), the case over 9 March 2001, as well as that involving the Donetsk lawyer Serhiy Salov (whose application, incidentally, to the European Court of Human Rights is soon to be ruled upon), and others.
One should remember that all these cases are talked about in Melnichenkos tapes, a parliamentary investigation into which should have been held a long time ago, as they hang like a heavy burden impeding movement forward. If such an investigation proves that officials are implicated in crimes, they must be prosecuted. It is vital to finally carry out a proper investigation into the murder of Georgy Gongadze.
3. A public expert examination should be undertaken of the most important events in various fields – politics, economics, the environment, in the social sphere, etc, in order to establish where the regime deceived us, and then to subject these events to public assessment, in particular, legal evaluation. To this end we must review independent Ukraines short history, make a list of such events over the last 15 years and create efficient expert groups (a good example of such public expertise would be the analysis of the causes of the Chernobyl disaster, carried out by environmentalists at the beginning of the 1990s). I believe that the people needed and means for such expert examinations can be found.
Where the rights of individuals have been violated, they must be restored, or at least compensation for the damage, whether in moral suffering or material losses, should be provided. I would note in this respect that it would be expedient to carry out (in cooperation with the Accounting Chamber) a thorough examination of the implementation of the State budget for 2004 and of local budgets. One can safely predict a sizeable number of financial irregularities connected with the elections.
One should, in addition, investigate foreign policy, primarily relations with Russia, to check out the widely held suspicion that national wealth and the countrys sovereignty were being used as payment for support given to Kuchmas regime.
4. The mechanisms for vote rigging used in the Presidential elections must be made public, like an ulcer which will spread infection if not burst. It is extremely important in my opinion to give those people involved in the election fraud the opportunity to acknowledge their complicity and to release the burden of guilt from their soul, whether they acted under duress or for personal gain. Here I would do what they do during a firearms amnesty: a deadline is fixed until which firearms can be handed in with no questions asked. Only after this deadline has passed are penalties imposed if firearms have not been given in. In our case, a special law will need to be adopted envisaging an amnesty for all who during the stipulated time frame declare their role in the vote rigging and explain what it entailed. Only then will investigations be initiated and the necessary court proceedings held. I hope that this will be an honourable conclusion to the election process. Obviously this cannot apply to the most substantial and flagrant violations, such as the interception of information about the results of the voting and the manipulation of information, the collusion between members of the Central Election Commission and Presidential Administration. These crimes must definitely be brought before the courts.
5. The next task which remains as acutely needed as 15 years ago is «deKGBization». Clearly the Security Service of Ukraine (SSU) is not the same as the KGB. Nonetheless, it has proved unable to avoid being used by the regime for political persecution. This was particularly evident between 1998 and 2001 when the SSU was headed by Leonid Derkach. There is ample evidence that the SSU inherited a lot from the KGB, resorting to illegal activities, intimidation and blackmail, while at the same time fostering an image of itself as the state body least tainted by any corruption. The reorganization of the SSU at the beginning of the 90s was carried out in a non-transparent manner; if the commission whose members included Genrykh Altunyan, Mikhailo Goryn and Yury Kostenko prepared a report, then this was not made public. It is precisely for this reason that it is now vital to openly and with public participation, investigate information suggesting SSU interference in the activities of political parties and civic organizations, as well as in business, and having established the truth, to carry out a staff shake-up of the service. Wide-scale public discussion as to the priorities of national security would also be appropriate since, in my opinion, the SSU all too often interprets these to the detriment of Ukraines interests. An example would be in its declaring that one of its priorities is information security, although any limitations to exchange of information leads to the stagnation of a country. On the basis of how the SSU is behaving in the area of information, it seems safe to assume that they are either pursuing their own interests or that they simply have no understanding of how the world has changed since the Internet came on the scene.
Here also there is a need for a special law which would enable a public commission to gain access to secret information and investigate evidence of illegal activities carried out by the SSU. Such a commission would also oversee the readjustments in staff according to the Polish or Czech model: all employees would be dismissed then re-assessed for suitability, with some being reinstated. Secret employees would be subject to the lustration process: information about their involvement in the KGB would be made public if these people wanted to continue to hold high-ranking official posts. Here again it would be possible to benefit from the successful Polish experience: in accordance with the law on lustration, anybody wishing to be elected or appointed to certain posts (ministers, judges, etc) has to state whether they were ever secret agents of the security service. The case is considered by a special lustration court, and if it is found that the application lied, he or she is deprived of political rights for 10 years.
6. No less important is it to carry out a shake-up of other law enforcement bodies: the offices of the Prosecutor, the police, tax police, etc. Information about the illegal actions of these bodies needs to be disclosed and investigated, with the appropriate conclusions drawn, especially conclusions as regards retention of jobs. It is absolutely essential to make interference in business impossible and to put an end to the shameful practice of offering «protection». The tax police should simply be disbanded.
The problem of mass surveillance needs to be addressed, in particular, that of forms of communication which are a flagrant violation of peoples right to privacy. It is known that in 2002, Appeal courts issued 40 thousand warrants for the interception of communications by investigative operation units of law enforcement bodies (for comparison, in the USA, despite their battle with terrorism, 1,367 warrants were issued for the year). It must be publicly ascertained how these warrants were spread out between the crime police, the SSU, the tax police and other law enforcement agencies, whether they were applied efficiently, how many criminal investigations were initiated and how many reached the court, what the verdicts were, etc. Staff changes would be made on the same basis as in the SSU.
7. Fundamental changes are needed in education, both at school level and higher. As the initiative «Academic Honesty» showed, the situation as far as academic freedom is concerned, is dire. It is shameful when only three rectors in the entire country were prepared to speak out against blatant vote rigging. Law institutes are in a terrible state and continue to prepare «obedient» specialists just as under the absolute rule of the Soviet legal paradigm. One can assume that here too a staff «clean-up» is unavoidable, at least as regards the most morally repugnant rectors of the ilk of Sumys Oleksandr Tsarenko.
8. Business must be kept separate from political activity. This thesis has become axiomatic and therefore need only be noted here.
9. Institutional mechanisms need to be created for public, parliamentary and extra-parliamentary control. At present such mechanisms are either in embryonic form or entirely non-existent.
10. One must find a way of raising the authority of the legal system, and of making the judicial branch of power independent and, as it were, «denationalized». If the court is a body of State power, it cannot make rulings on claims brought against the State, because it has no right to act as a party during the consideration of a case. Therefore the court must act in the name of the law, and not on behalf of Ukraine. This, in fact, is one of its most important functions. At the present time, the independence of the courts is to a large extent fictitious. Court reform has not been completed and, as far as I can see, there remain a considerable number of current norms which need changing.
The salaries of judges, in the first instance, those in local courts, need to be raised substantially. Last year the following figures were talked about: the Budget allocation for a judge of the Constitutional Court was 600,000 UH a year, for a judge of the Supreme Court – 120,000 UH, while a judge in a local court received 12,000 UH per year. It is time to rectify this disproportionate imbalance of a purely corrupt nature. One of the judges of the Supreme Court recently stated that their salaries are 10 times lower than those of judges of the Constitutional Court, while the latter have also been awarded generals (!) rank. One need therefore feel no surprise when they try to prove that one plus one is equal to one. Such a Constitutional Court needs to be disbanded, and a new one created on the basis of a special law. A review is also needed of the composition of the High Court of Justice. However, the most important – and hardest – task remains that of ensuring public control over the judiciary.
11. It is time also to review the structure, proportions, functions and numbers in the State apparatus. Clearly the functions of the Presidential Administration need to change, while the State Administration of Affairs should quite simply be liquidated. The rationale behind such bodies as the State Committee on Television and Radio Broadcasting seems highly doubtful, with at very least serious reservations as to its functions. However this area requires separate and more detailed discussion.
12. It would be desirable to review decrees conferring the title of «Hero of Ukraine» and other State awards. It is an outrage that, for example, Medvedchuk can flaunt his «Hero» status, but such people as Yevgeniy Hrytsyak or Danylo Shumuk, true heroes of Ukraine, were never honoured in this way. This review should be undertaken by a public commission comprised of people with unquestioned moral authority.
The implementation of all these measures will inevitably bring to light many cases of corruption, misuse of power and other crimes. In view of this, it is worth returning to the issue, already mentioned, of lustration. Here, however, I would mention what I perceive as the negative experience of the Czech Republic and Hungary. Lustration as limitation of the rights of all officials, beginning, for example, with the heads of regional State administrations and higher is inadmissible. Guilt is not collective, only individual. We will accuse, investigate, sentence, punish and forgive. Or will not forgive depending on the crime. This directly applies to Leonid Kuchma as well. Certainly a respectful attitude to its former presidents is one of the hallmarks of a civilized country. However, if convincing proof is provided of crimes which Kuchma committed, than he must be prosecuted.
A review of misuse in the economic sphere should be undertaken with the greatest care: firstly, these abuses were inevitable, and secondly, precipitous actions could have serious consequences for the development of the economy. It would be better to seek out flexible solutions which would make it possible to bring the economy into the open, separate business from politics and, finally, introduce clear rules and guidelines.
A wide-reaching program of «deKuchmization» places on the agenda considerable changes in legislation. While in no way aspiring to provide a comprehensive list, I would suggest just a few directions which should be followed.
It should first be noted that the constitutional reform adopted as part of the «package» on 8 December is bad beyond redemption. On the one hand it is very short on substance and does not address many important issues, while on the other it creates the threat of unavoidable conflict between the President and Prime Minister (which could have been averted by making the President head of the executive and placing the Government (the Cabinet of Ministers) under him or her. It reinstates the intrinsically Soviet practice of overall surveillance by the Prosecutors office, introduces an imperative style of mandate, turning State Deputies into «hand-raising» pawns obeying the will of faction leaders, etc. It is true that since Draft № 4180 was amended during the voting procedure, it must be reconsidered by the Constitutional Court and then gain a constitutional majority once again. I am certain that this can give the public the opportunity to wage a campaign against a constitutional reform which is being foisted upon it in such an unacceptable form.
Ukrainian society needs reform that is real, not just for show. The constitution of 1996 was a compromise with the forces of the left, which is why it introduced such a diffident form of capitalism and contained a barrage of social guarantees of the purely Soviet type, empty promises that no regime would be able to honour. This Constitution is already far removed from todays reality and needs to be rewritten.
In addition, the constitutional system does not work, as there is no institution established for constitutional complaints: individuals do not have the right to appeal against violations of their constitutional rights to the Constitutional Court, which is essentially why the latter is simply not a court at all. There is also a need for a corresponding code of procedure. For these reasons, the Constitutional Court should either be disbanded with its authority being passed over to the Supreme Court (this process would requires amendments to the Constitution, which is fairly difficult), or a new law on the Constitutional Court should be passed changing the principles of its formation, broadening the range of people who have the right to lodge complaints, and introducing procedure for reviewing cases. This would entail something like a Constitutional Procedure Code.
I have highlighted already the fact that a strong and independent judiciary is a prerequisite for the recovery of the country. In view of this, we must review the laws which regulate the activity of the courts, while at the same time introducing norms which guarantee the influence of non-governmental organizations on the election (appointment) of judges.
This also applies to the law on the prosecutors office and other law enforcement agencies: in order to create safeguards against the arbitrary actions of these bodies, mechanisms for public control need to be stipulated. The current law on public control over the law enforcement bodies and armed forces cannot withstand any criticism and needs to be thoroughly changed.
It would be advisable to refine the Draft law once begun on public control over the activities of the executive branch of power (including the prosecutors office and the security service), which would develop the idea of parliamentary and extra-parliamentary control. It would also be sensible to significantly rework the long out-of-date law on investigative operations (which provides very weak safeguards for human rights), paying specific attention to the procedure for control over communications exercised by law enforcement bodies.
It is important to win the battle over the Criminal Procedure Code which in 2004 was sent back for reworking before a second reading five times in a row. The Penal Code which has been in force for a year also requires radical change.
Control over the activities of the State authorities can only be exercised by an informed society. We must, therefore, ensure clear and understandable procedures for access to information, in particular to the archives of the security services. If one considers the extraordinarily inflated quantities of legislation on information, this can be seen in general to hamper progress in this sphere and to limit the freedom of expression and of the press, rather than promoting its development. For this reason, the temptation arises to simply abolish the numerous laws regulating the information network (the particularly harmful ones, specifically the law on procedure for covering the activity of State executive bodies and bodies of local self-government and the law on social guarantees for journalists), and to start afresh.
It is time to review electoral legislation in order to strengthen safeguards of rights and civil liberties, in particular the rights of civic organizations. This must be done in advance, long before elections, after all elections can be made honest and transparent only through the non-interference of the executive and through public control. There must also be a clear and enforceable procedure for recalling State Deputies.
A new law should be adopted on civic associations. The law from 1992 is already hopelessly out of date, and the longer it remains in force, the more it contradicts the actual state of affairs. It would be worth also drawing up a law on the procedure for holding political rallies, demonstrations and other public actions, since both local authorities and the courts continue to be guided by the old Decree of the Presidium of the Supreme Soviet of the USSR from 28 July 1988 which has an overt permission-based nature and contravenes the current Constitution.
A review of social guarantees for all those groups in society whose own efforts are not capable of ensuring a decent standard of living is long overdue, and the divide between rich and poor in Ukraine has reached frightening proportions. Then fighting poverty must become one of the priorities of the new regime.
Finally, it is time to make amendments to the Law on the rehabilitation of victims of political repressions and to pay those people the long-standing debts, so rectifying this discriminatory situation in which many find themselves.
In order to begin these processes, I believe that a number of working groups responsible for different aspects need to be created. Members could include, on the one hand, so to speak «the people of Maidan», and on the other – representatives of the new administration, State Deputies and, of course, experts. These groups would clearly need to agree their activity to some extent with the new State authorities, however, where needed could be guided by the direct public actions of Maidan which would in this way encourage the State powers to take decisions it found difficult. Politically these groups should probably always be one step (but no more than one!) more radical than the State authorities, as well as obviously being financially independent of them, that is, of the State Budget. However, the process of agreeing specific aspects of their activity and status possibly requires separate, more detailed discussion elsewhere.
In conclusion we would stress again that what is involved is not merely the reform of the Kuchma regime, but a much belated, and therefore determinedly offensive policy of decommunization. This cannot be avoided and must not be put off any longer. It is time, therefore, to begin. Not tomorrow, but here and now.
 These words have been retained, since the Ukrainian equivalents are loaded with associations, beginning with the reminder of a Bolshevik slogan about the «electrification of the whole country».
 The Vice-President of Bank Slovyansky, Boris Feldman, was arrested on charges of tax evasion and financial mismanagement. The Supreme Court annulled the tax evasion charges in 2004, and reduced his sentence to five years, that being the amount of time he had spent imprisoned.
 In 1999, an explosion during a meeting between Natalya Vitrenko and voters caused serious injury to several bystanders. Serhiy Ivanchenko, the authorized representative of Oleksandr Moroz, Leader of the Socialist Party, together with his brother and Vladimir Samoilov were charged with the crime. Major Melnichenkos tapes suggest that the men were framed, probably as an attempt to discredit Moroz.
 This was the last day of confrontation between the mostly young activists of the organization «Ukraine without Kuchma». Around a thousand activists were detained and/or beaten up by law enforcement officers, many targeted at stations, bus stops when heard speaking Ukrainian. The protest movement suffered a serious setback.
 Salov was also a representative of Oleksandr Moroz, who was arrested in 1999 for having shown a fake leaflet thrown in his postbox which said that Kuchma had died. He was charged with «impeding the free expression of the will of the people», and having been held in a pre-trial detention centre, received a five-year suspended sentence.
 Major Melnichenko, now living in exile in the USA, secretly made tapes where Kuchma was speaking to his people. The most notorious conversation is that referring to Georgy Gongadze, and clearly implicating Kuchma in effectively ordering his murder.
 Genrykh Altunyan, Mikhailo Goryn and Yury Kostenko were State Deputies and members of the Security Council in 1992 who worked on creating a new Security Service of Ukraine to replace the KGB.
 The protests in Sumy began over the planned merger of three institutes. Tsarenko, the rector of one of them, expected to become the head of the single institute and was particularly active in persecuting students. The determination of the students, their parents and many lecturers forced Kuchma to back down and withdraw his planned merger (in August 2004).
 Victor Medvedchuk was Presidential Administration Chief of Staff under Kuchma. One could provide more information, little of it being salubrious.
 Yevgeniy Hrytsyak, the leader of the Norilsk Uprising of 1953, spent many years in the camps. Danylo Shumuk, a Western Ukrainian, spent 36 years imprisoned for his beliefs, beginning under Polish rule in the 1930s, then under Stalin, Khruschev and Brezhnev.
 «Maidan» being «square» in Ukrainian, but referring to all that has become known as the Orange Revolution.