Definition of categories pertaining to political persecution
Following the 2010 presidential elections, the new administration steadily moved towards political harassment of their opponents and critics. A lot has been reported about this by the media, Ukrainian and foreign specialists. Therefore the legal and human rights communities need to establish a definition for the categories “prisoner of conscience”, “political prisoner”, “politically motivated persecution” in today’s Ukraine/’ We will be guided in this by the experience of Amnesty International and the Soviet human rights movement of the 1960s to 1980s which defined the above-mentioned concepts and which received further development in numerous documents of the Council of Europe, OSCE and other international organizations.
Generalizing international legal practice while taking into account Ukrainian social and political reality and the experience of the Soviet and in particular Ukrainian human rights movement, Ukrainian history, and taking as a premise the categorical rejection of violence as a means for upholding ones rights and interests, for political or social protest, we propose the following definitions.
Persecution can be based on the law when criminal proceedings are initiated against a person (or their rights are restricted in connection with the initiating of a criminal investigation over a crime), or coercive measures of a medical nature, including psychiatric, are used against a person without grounds; or when a person is accused of committing an administrative offence; or a person becomes the object of civil or economic legal proceedings. The persecution can be entirely unlawful. This can involve, for example, intimidation via prophylactic talks; threats of dismissal from ones job or expulsion from an academic institution; being deprived of ones work and legal income; unlawful actions by the law enforcement agencies (beating, unlawful gathering of information about a person, unlawful surveillance, detentions, searches, etc); obstruction in circulating information; being forced to join a certain political party; being forced to take part in measures of a particular political party, and so forth. These actions may be carried out both by public officials, or by private groups or individuals with the authorities tolerating such actions.
The persecution is politically motivated if the actions of the State bodies and their officials are based on a) illegitimate considerations of a socio-political nature or b) by actions of the individual persecuted in defending citizens’ rights, freedoms and legitimate interests.
We propose using the definition first presented by Sergei Kovalev, well-known human rights defender and first Human Rights Ombudsperson of the Russian Federation, himself a former political prisoner. According to this we deem a political prisoner any person imprisoned where a considerable and reliably assessed role in their criminal or administrative proceedings can be attributed to the regime’s political motives – and only such a prisoner. It is of no significance whether it is specifically political causes that prompted the actions which the person is accused of as a crime or offence; what is important is only the presence of political interest of the regime in the result of the case. Since in the application of the law assessments and judgments beyond the framework of the law are unacceptable on principle, political motivation in court proceedings may result in procedural or material infringements such as:
elements of falsification in the charge;
unwarrantedly severe preventive measures or punishment;
unlawful sentences or rulings regarding administrative offences;
bias of the court in evaluating the evidence presented by the defense and the prosecution;
various restrictions regarding the possibility of defending oneself, including with the help of defense counsel;
arbitrariness in choice of evidence, ignoring obvious facts;
use of norms of the law irrelevant to the deed committed;
selective (discriminatory) nature of court prosecution compared to analogous cases involving others.
We consider it to be without question that full removal must be demanded of any political motivation in the sphere of justice, regardless of the gravity and consequences of the crimes.
It should be noted that besides politically motivated discrimination against those whom the regime deems to be their opponents, it sometimes resorts to persecution of its supporters or those who implement its repressive decisions. This is as a result of internal conflict or in order to mask selective repression. Such persecution is also politically motivated and just as unacceptable.
We propose considering as prisoners of conscience those who are deprived of their liberty on consciously unlawful, from the point of view of international standards, grounds or on unwarranted charges in connection with:
their convictions or public expression, civic or political activity of a non-violent nature which does not demand discrimination against any others;
looking for, retaining or circulating open or publicly important information;
refusing to wear a military uniform or take part in acts of violence due to religious or other convictions.
People who resort to violence or propagate violence and enmity are not considered prisoners of conscience.
For comparison, the Amnesty International definition states that a prisoner of conscience is a person deprived of his or her liberty solely for peacefully expressing their political, religious or scientific views.
There is analogous definitions from Council of Europe experts. It includes the following statement:
Burden of proof
The assumption that a person is a “political prisoner” should be confirmed prima facie by evidence, following which the State depriving a person of liberty should prove that the imprisonment is fully in compliance with the requirements of the European Convention on Human Rights as interpreted by the European Court of Human Rights according to the merits of the case; that the requirements of proportionality and non-discrimination have been observed and that deprivation of liberty was the result of a just procedural review.
Authorities’ actions qualified as political persecutions
Based on the above definitions, one can draw the following conclusions:
There are at present no prisoners of conscience in Ukraine. There are however a fairly large number of people who have been persecuted for political motives. These are participants in protests who are being intimidated in various ways, sometimes connected with violence – business entrepreneurs, students, members of civic organizations, political parties, trade unions, etc; journalists and civic activists with whom the MIA or SBU [Security Service] have held prophylactic talks, or in relation to whom there has been demonstrative surveillance; staff of public sector institutions who, under threat of dismissal, have been forced to join parties, take part in rallies, etc.
In our opinion, the criminal cases initiated against the participants of the Tax Code Protest, the members of the organizations Tryzub and VO Svoboda, as well as former high-ranking officials – Yury Lutsenko and Yevhen Korniychuk – should be considered political persecution. All of the accused in these criminal cases who have been deprived of their liberty are political prisoners. This conclusion follows from an analysis of the rulings regarding choice of preventive measure and the circumstances of their arrest and remand in custody considering below. The former Economy Minister Bohdan Danylyshyn who has received political asylum in the Czech Republic was a political prisoner. One can say with a great degree of certainty that political persecution is involved in the cases of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the criminal investigation.
The criminal cases against the Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman and the Vinnytsa trade union activist Andriy Bondarenko must also be considered politically motivated. The political grounds are indisputable for the reinstatement of the old criminal cases against members of the national organization UNA-UNSO regarding the events of 9 March 201 (all the accused have already served sentences except the National Deputy Andriy Shkil) and the Head of the Secretariat of the Mejlis of the Crimean Tatar People Zayir Smerdlyaev (he is charged with taking part in mass riots and resisting the police during a rally of the Crimean Tatars on 22 June 2006).
Political persecution was also involved in the court rulings in Kharkiv regarding administrative arrest and fines against those protesting against the felling of trees in Gorky Park in May and June 2010 under Article 185 of the Code of Administrative Offences, supposedly for flagrantly disobeying the lawful instructions of the police. Two young people from Kharkiv, imprisoned for 15 days, were declared prisoners of conscience by Amnesty International, the first time in 6 years (the only such case prior to that in 20 years of independence had been in 2004). Virtually all civic activists who received administrative punishments under Articles 185 and or 185-1 of the Code of Administrative Offences (infringing the procedure for organizing a peaceful gathering) after holding a peaceful event can a priori be considered victims of political persecution. To be certain each such case should be viewed in isolation.
The list here of political persecution in no way claims to be comprehensive. It should be noted that a technique is often applied whereby the authorities persecute people who are not opponents of the regime as such but whom they consider aligned with their opponents (for example, people who from the point of view of the authorities can provide, provide or have provided, financial, organizational or technical support to their opponents). People are sometimes also persecuted in order to receive information or grounds for persecuted the “necessary” person. Then the scale of persecution becomes wider and it is difficult to define the specifically political grounds for such persecution since there may be no link whatsoever between the persecution and political views of the victim, however this is indirectly linked with the political views of the “necessary” person and the aim of persecuting the latter. Examples can be seen in the course of events around the former Prime Minister Yulia Tymoshenko and the current Head of the Supreme Court, Vasyl Onopenko.
Persecution member of the former Government
Second half of 2010 has been marked by an increase in prominent criminal prosecutions for crimes allegedly committed with the use of official position.
We would like to be able to welcome efforts by the authorities to fight corruption, misuse of power and impunity among members of the State apparatus. However concern is elicited by the fact that the criminal prosecutions are aimed exclusively at members of opposition political parties. We have in mind the initiating of criminal cases against Yulia Tymoshenko, Bohdan Danylyshyn, Yury Lutsenko and others. Under analogous circumstances criminal cases against representatives of the current government have not been initiated.
In some cases members of the opposition are accused of actions which members of the present government are engaged in now with impunity. For example, in one case the charge is of not returning a deposit made during the privatization of the Odessa Port Factory, although this deposit has still not been returned with liability for this being borne by the official presently occupying this post.
The chargesagainst Tymoshenko and her ministers General Prosecutor Office and the Government motivated, in particular, by the results of an investigation conducted by U.S. lawyers on behalf of the Government Azarov. The investigation was carried out by the Washington-based Trout Cacheris PLLC which Ukrainian information agencies and most media outlets call an “auditing company”. The firm itself is more modest, stating that it is “a small legal firm which specializes in complex court proceedings, both civil and criminal”. It has 9 lawyers. By comparison the international auditors Ernst & Young have offices in 140 countries and 144 thousand lawyers and financial specialists. The government nevertheless opted for a small firm from Washington. Prime Minister Azarov claims that the American’s discoveries will help rid the country of corruption.
U.S.lawyers covered the period from 2008 to the beginning of this year. They claimed that Tymoshenko’s Cabinet spent $140 million on 1000 German minivans for alleged medical use by the Health Ministry that were later used in Tymoshenko’s mobile campaign advertisements. It also said the former Ukrainian government misappropriated some $280 million (€200 million) that was received for the sale of carbon credits as part of the Kyoto protocol. That money was used by the country’s Pension Fund, which was strapped for cash amid a severe recession. In addition, the study claimed that Tymoshenko’s government misspent $24 million (€17 million) on sugar that was never delivered to Ukraine, and misappropriated $44 million (€32 million) while importing vaccines and medical equipment.
Transparency International, however, believes that the “Washington audit” only discredits the fight against corruption in Ukraine. Nicholaus Marshall, the organization’s Regional Director, told: "We welcome the fight against misuse of taxpayer money in Ukraine. Any government official in a democratic country should be held accountable. But judging by the information coming from Ukraine, the recently released audit has serious flaws and in my view was not independent. It was carried out at the bidding of a new government against its predecessors. It is very difficult to assert that we are dealing here with a fully-fledged investigation and not a witch hunt”.
Nicholaus Marshall sees no sense in thus “uncovering” your political opponents as soon as you’ve got to power. The problem of corrupt State authorities at various levels is by no means a new one. He says that it would be hard to assert that only the last government was involved in such machinations. According to their annual reports there have been non-transparent dealings with public funding for the last 20 years. He points out that the country has been at the bottom of the ratings regarding corruption. “Therefore, in my view, if Ms Tymoshenko misappropriated money, she must answer for it, however then so much all her predecessors”.
Nicholaus Marshall points out that in law-based states investigations into cases of corruption among the higher state authorities are dealt with not by governments which replace one another, but by independent law enforcement bodies. He stresses that the fight against corruption should be carried out on a constant basis, and the appropriate mechanisms for this should finally be created.
“The current investigation carried out by a law firm linked with one party is populism. We all know that the Ukrainian economy is corrupt through and through. It’s not difficult to find abuses. It’s not worth singling out any particular politician, it’s a general phenomenon.”
With the entrenched tradition of lawlessness and abuses, disregard for the law and governance through individual dictate which has been typical of the authorities over many years, selective criminal prosecutions solely aimed at members of the opposition spell the effective use of criminal court proceedings for political ends. Such practice runs counter to democratic values based on equality of all before the law and undermines the foundations of criminal justice.
This seems especially unacceptable given the unpunished assault on opposition National Deputies in parliament and attempts by the government to block the work of branches of opposition political parties.
Selective application of legislation is a typical weapon of undemocratic regimes. Fearing defeat in conditions of fair political competition and political freedom, the regime in such countries removes opposition figures with the use of criminal prosecutions. This can be compared to the selective presentation of news when somebody decides which news to circulate, this resulting in the lack of full information and a distorted impression of what is going on in society.
Furthermore, when members of a political party that has come to power at each step carry out unlawful actions with impunity, while their political opponents are prosecuted for the same actions, this compromises justice and establishes dictatorship of force. It also undermines any public faith in the honesty of the regime’s intentions and its adherence to the rule of law.
There can be no hope of convincing the Ukrainian public and the world that persecution B. Danylyshyn and Ye.Korneychuk for not following tender procedure are aimed at eradicating corruption and saving public funds when the same funds were used without any tender, accountability or transparency to pay for a government-commissioned “audit” into the former government’s affairs.
There can not speak about the correctness of the prosecution before the trial. However, there are concerns that the acts of former members of the government are punishable. But instead of considering this issue the government in response to accusations of persecution of the opposition began strictly pursue its supporters. Thus the validity of government action is doubtful too. For example, prosecution of former speaker of the Crimean parliament Anatoliy Gritsenko look very dubious.
In conditions where there is an established court system and tradition dating back over many years, one could hope that the courts would stand in the way of manipulation of the criminal process. However the judicial reform carried out this year has made judges highly dependent on politicians.
The President and the majority in parliament which are at present part of one political force effectively have the opportunity, via the High Council of Justice, to exert influence on judges. This body of power plays a key role in the appointment and dismissal of judges and in bringing disciplinary proceedings against them.
The Prosecutor General stated immediately after his appointment that he would implement any order of the President. Later utterances clearly demonstrate his total dependence on the President.
A member of the Party of the Regions has been appointed Head of the High Court on Civil and Criminal Cases, while his deputy is the Prosecutor General’s brother.
All of this gives rise to well-founded doubts that the court proceedings in these political cases will be run in keeping with the standards of the right to a fair trial.
The President constantly asserts that his aim is to build a European-style democratic State. The best proof of this would be to stop the prosecution of the political opposition under the guise of fighting misuse of power.
Yury Lutsenko case
In the ruling passed by the Pechersky District Court in Kyiv on the choice of a preventive measure for Yury Lutsenko (former Minister of Internal Affairs – translator), all above-mentioned features in the definition political prisoner are pronounced (with it not even being during the examination of the case on its merits and assessment of the evidence!) which gives yet more grounds for classifying his remand in custody as political persecution.
Disregard of things that are obvious
The court ruling spells out in black and white that “The term of remand in custody is to be counted from 27 December 2010.” Does this means that on Sunday, 26 December Lutsenko was not deprived of his liberty? He went voluntarily with 11 Alpha Special Force officers and two representatives of the Prosecutor ‘s Office to the SBU [Security Service] remand unit [SIZO], voluntarily spent the day, evening and night, in the morning voluntarily went in handcuffs to the court and voluntarily entered the cage… The court clearly ignored this detention, obviously not wishing to link their hearing with a new charge.
The only grounds for changing the preventive measures from a signed undertaking not to abscond to remand in custody is moving “from the registered place where a person lives, is staying or is temporarily at without the investigator’s permission” (Article 151 of the Ukrainian Criminal Code). The court ignored the absence of such facts.
The court gave the first grounds for remand in custody as being avoidance of procedural actions and the decisions of the investigator, clearly meaning the assertion of the investigator that Lutsenko was deliberately avoiding reading the case material.
The court ignored the fact that Lutsenko had read the case material on 15, 21, 22 and 23 December, and did not appear when called by the investigator on 14, 16, 17, 20 and 24 December, explaining that his lawyer was busy on other criminal cases.
The court also ignored Article 218 of the Criminal Procedure Code according to which the reading of the material of a criminal case is not a procedural act of the investigator, but the indisputable right of the accused which he exercises independently, or with a lawyer at his own discretion.
Remand in custody changes nothing in this situation and will in no way expedite familiarization with the case material.
Interpretation of natural actions as criminal
The grounds for remanding Lutsenko in custody were, for example, his denial of guilt and refusal to testify against himself. The court thus deprived him or his liberty for exercising his constitutional rights which guarantee the right to a fair trial.
The accused is effectively being forced to reject the right to retain silence guaranteed by the Constitution, the European Convention and other international agreements.
By justifying remand in custody as required by influence on witnesses, the court agreed with the investigators who consider the public statements of his point of view regarding the criminal case in the media, for example, in an interview to Dzerkalo Tyzhnya [the Weekly Mirror] and the UNIAN information agency, as pressure on them. We are once again seeing the Soviet practice where people answered for their words through arrest.
The court ruling states that the court has taken into account “the accused, Y.V. Lutsenko, his material and family state, his place of residence, whether he has children, his state of health which does not exclude or prevent the latter’s remand in custody”.
In fact no document relating to this was examined during the court hearing since the court rejected the application from the lawyer for the examination to be adjourned so that such documents could be prepared and submitted.
The absurdity of the court’s conclusions
In my opinion the court ruling looks quite absurd. Lutsenko was arrested on 26 December in connection with a new criminal case. Yet the court examined change of preventive measure within the framework of the criminal case already investigated and deemed Lutsenko guilty of having avoided reading the material of that case. At the same time it transpired during the court hearing that on 24 December the investigation into this case had been restarted! That, as far as I can see, makes the reason given for remanding him in custody absurd.
The illegality of Yevhen Korniychuk’s arrest
The first shocking aspect of this case is the cynicism (from a purely human point of view) of the arrest by the Prosecutor of Yevhen Korniychuk. This was on 22 December 2010, the day that his daughter was born. Mr Korniychuk went straight from the maternity unit to the Prosecutor General’s Office following a summons from the investigators. His two underage children were at home at the time. It later transpired that Korniychuk had been summoned for the first time in a case initiated against him under Article 365 § 3 of the Criminal Code (Exceeding power or official authority).
What is interesting is that it turns out this case under Article 365 § 3 has been initiated twice which is in itself a legal nonsense. First on 15 December 2010 by the Investigator on Particularly Important Cases of the Prosecutor General’s Office, Harbuza, and then on the day his daughter was born, by the First Deputy of the Prosecutor General Renat Kuzmin.
In fact, with respect to the same matter, against the same person, on the same grounds and with the same charges, two criminal cases cannot be initiated. If that happened, then the initiating of one of them was clearly illegal. When initiating for the second time a criminal case against the former Minister, Kuzmin did not revoke as unlawful the decision by investigator Harbuza which is indicative. One must therefore understand that at the present time there are two different rulings on initiating a criminal case against Yevhen Korniychuk under Article 365 § 3, and thus two criminal cases.
However if the assessment of Yevhen Korniychuk’s arrest from a purely human point of view is, so to speak, a mainly emotional aspect, at the level of law the legal aspect, the presence of lawful grounds for arrest, takes precedence. We need to establish, in the first instance, the nature of the charge laid.
Korniychuk is accused of having, while First Deputy Minister of Justice, on 23 February 2009 (we would note, almost two years before his arrest) he signed a letter regarding the presence of conditions for the use by Naftohaz Ukraina of procurement procedure from one bidder, “Magisters”. The First Deputy of the Prosecutor General Renat Kuzmin (we will return to his decision which was issued later, with his position much higher, than that of investigator Harbuza) sees in this misuse of official authority which cause Naftohaz considerable damage. Incidentally, and this is also noteworthy, Naftohaz itself did not report such damage to the Prosecutor’s Office. The pretext for the initiating of a criminal case was an application from Volodymyr Sivkovych, who, according to media reports, is on friendly terms with Renat Kuzmin.
The law entitles the investigator to arrest a suspect, but only where there are lawful grounds. These grounds, the author explains, are the following according to Article 106 of the Criminal Procedure Code
1) where a person is caught committing a crime or directly afterwards. Clearly this was not the case with Korniychuk, since the alleged offence is two years old;
2) when witnesses, including victims, directly point to the given person as the perpetrator; in the given case this does not apply;
3) when traces of the crime are found on a person’s clothing, on the person or in his/her home;
The law then goes on to say that “given the presence of other information providing grounds for suspecting a person of a crime, s/he may be arrested only if this person tries to escape or where the place where s/he is living or staying is not registered, or when the suspect’s identity has not been established.”
However it is well-known that Korniychuk did not attempt to abscond. On the contrary on the day of his arrest he went voluntarily to the Prosecutor’s Office at the investigator’s summons despite the above-described family circumstances. The author explains why the other two continues are clearly not applicable in the case of Kyiv resident and former Deputy Minister of Justice, Yevhen Korniychuk.
Thus in the given case the Prosecutor had none of the grounds envisaged by law for arresting Mr Korniychuk. This means that it was overtly unlawful and can be deemed Prosecutor’s arbitrary lawlessness, this requiring legal assessment from the point of view of Article 371 of the Criminal Code (knowingly wrongful arrest) and Article 365 (exceeding power and official authority).
I am convinced that the Pechersky District Court in Kyiv (Judge Vovk) which at the Prosecutor’s application remanded Korniychuk in custody for 2 months) also had no grounds envisaged by law for applying this preventive measure.
The author stresses that, pursuant to Article 148 of the Criminal Procedure Code, preventive measures (any, not only remand in custody) are applied where there are grounds for believing that a person will try to abscond or avoid carrying out procedural decisions, impede the course of justice or continue their criminal activities, as well as to ensure the enforcement of procedural decisions
From an analysis of the material published by the press, Korniychuk’s behavior, his family circumstances, etc make it possible to conclude thatthere were no adequate grounds for remanding him in custody or even applying a writing undertaking not to abscond.
In any case arrest and remand in custody are clearly excessive measures of procedural force, suited neither to the circumstances of the case, nor to the actual suspect.
In the given situation it would have been entirely sufficient to take from Korniychuk a written undertaking that he would appear if summoned and would inform of any change of residence (Article 148 § 3 of the Criminal Code).
The arrest and detention of Korniychuk can be seen as a demonstrative show of brute force and sense that they can do anything, an attempt to denigrate a person and use violent means of reprisal.
Persecution of participants of the Maidan-2
The “Small business owners’ Maidan” had only just begun when the Shevchenkivsky Department of the Kyiv Police on 23 November initiated a criminal investigation under Article 293 of the Criminal Code, over group infringement of public order on 22 November: the blocking of vehicle transport on Khreshchatyk St.
Nobody has yet been charged in this case.
However the Minister of the Interior Anatoly Mohylyov stated in parliament on 14 January that the people who committed this crime are known and an investigation is presently underway against them, He also stressed that responsibility for the crime committed was borne by the heads of four civic organizations which were the organizers of the protest.
Mohylyov also stated that the protest’s initiators had not informed that they were erecting tents yet despite this “they had hammered into the marble covering of Maidan Nezaleznosti more than one hundred metal spikes, in his words, 132. Any conscious individual is clear that that is also a crime, the damaging of property not belonging to you. Thus the organizers did not take sufficient measures to prevent offences, and promoted its being first committed during the protest”.
Under this fact on 3 December a criminal case was initiated under Articles 28-I § 2 and 194-I § 1 of the Criminal Code. On 23 December Ihor Harkavenko was detained, on 25 December – Oleksandr Mandych, both of whom are charged with committing this offence.
Harkavenko was remanded by the court in custody, while Mandych on 28 December was released under a signed undertaking not to abscond.
The decision to initiate a criminal case against Serhiy Melnychenko is dated 23 December, but this has not thus far been handed to him since he was first in hospital then left Kyiv for the New Year holiday.
On 6 January a similar criminal case was initiated against Oleh Altyrsky and on 14 January against Roman Fedchuk. Both have had to give signed undertakings not to leave the place.
There have also been reports on the Internet of the involvement in this case of Oleksy Zaplatkin and Vitaly Hruzynov. The Press Secretary of the Central Police Department in Kyiv, Volodymyr Polishchuk reported that they were not suspects, and could be simply witnesses. Yet the Minister of the Interior stated that they were on the wanted list.
From one formal decision on initiating a criminal case to another we find the same sacramental phrase: such and such and such and such who “acted according to prior conspiracy with persons not identified by the detective inquiry investigators, deliberately damaged the marble covering of Maidan”.
Only this list of “such and such” is increasing.
In the decision presented to Harkavenko, such and such are Harkavenko, Zaplatkin and Hruzynov. While in the decision initiating a case against Fedchuk, – already all 7 of the above-named.
The problem is only that Harkavenko, according to his lawyer Oleh Levytsky, has no idea who Zaplatkin, Hruzynov and Mandych are, he simply doesn’t know them.
None of the Maidan activists know Zaplatkin and Hruzynov at all, cannot identify them, and have no contact with them. Pure phantoms!
These people who are not acquainted can clear not have come to a “prior conspiracy” and therefore paragraph 2 of Article 28-I cannot be applied.
It is also improbable that Harkavenko, Mandych, Zaplatkin and Hruzynov hammered stakes into the marble covering on Maidan.
Firstly, they were neither organizers nor members of any civic associations or trade unions, nor activists who stood out in any way, Nobody remembers their having participated in any protests. Only Mandych is recalled by some of the residents of the tent camp as having spent the night there once or twice.
Harkavenko came once or twice and expressed his disagreement with the protesters.
Secondly, all know that the tents were erected by National Deputies [MPs] during the night from 23 to 24 November. This is not known only to the investigators who write of “persons not identified by the detective inquiry investigators”. For this reason the charges of putting spikes into the granite on Maidan by the real participants – Vasylchenko, Fedchuk and Akhtyrsky – are extremely dubious.
Why did the police initiate a criminal case against four chance individuals who weren’t involved in Maidan-2 at all?
In my opinion, the answer is simple – all four have previous convictions.
And everyone can see how the Minister of the Interior in parliament lists their past sins. That, supposedly, is your “face of the protest” – purely criminal.
It turns out that it’s all the other way around: the criminal case is made up.
Does the Ministry of the Interior really think that nobody sees that? They would be better to terminate the cases, and not shame themselves before the whole world.
Let’s turn to the other criminal case – under Article 293.
Undoubtedly blocking traffic is bad. Yet who is responsible for it? In the statement of notification against the planned protest, the organizers named a figure of 100 thousand participants. It would have been quite sensible to assume that with such a number of people on Maidan Nezalezhnosti that there could not be traffic on Khreschatyk, and to close it at least for the first hours of the protest.
Why did the Ministry not do this?
There are, moreover, no grounds at all for asserting that the blocking of traffic was deliberate, and that it was not the result of a large number of people gathered and badly organized measures by the police.
And in general, is it really those who took part in the Tax Code Protest Maidan who should bear liability, and criminal at that, when they were forced to extreme measures?
They were placed in conditions when they lost the ability to work freely. That led them out onto Maidan. In my opinion, the moral liability for this conflict lies with the authors of the Tax Code who insisted on passing unacceptable norms and refused to discuss the draft code with business owners.
The criminal cases against the participants of Maidan-2 are therefore immoral!
They are also simply stupid after the President and Prime Minister acceded to the demands of the business owners.
The Interior Minister does not want to recognize this, continuing the investigation, expanding the circle of those accused.
They are in this way provoking people to new protests.
It is time to stop this campaign of intimidation.
Persecution of members VO «Tryzub» and VO «Svoboda»
January 2011 saw a wave of detentions, searches, interrogations of members of the organizations VO Svoboda, V.O. «Tryzub» and other similar organizations. At first the talk was of suspicion of having carried out the explosion of the bust of Stalin in Zaporizhya late in the evening of 31 December, however later these suspicions were discarded and there have been no reports of those responsible for the explosion being found. At the end of January 9 members of the “Tryzub” were in custody over the beheading of the same bust of Stalin on 28 December: Vasyl Labaichuk; Andriy Zanuda; Edward Andryushchenko; Roman Khmara; Pylyp Taran; Yury Ponomarenko; Vitaly Vyshnyuk; Anatoly Onufriychuk and Vasyl Abramiv. All of them were detained between 8 and 19 January and charged under Article 296 § 2 of the Criminal Code (hooliganism carried out by a group of people). It was reported that the detainees had all their things removed and were issued instead light clothing, that they were given virtually nothing to eat and that some of them were beaten, and that the police had put obstructions in the way of them seeing lawyers. The question of a preventive measure was reviewed considerably longer than the three days set down by law. All 9 accused were remanded in custody.
On 10 January a member of the Zaporizhya branch of V.O. Svoboda, Yury Hudymenko, was detained over a criminal case reinstated by the Regional Prosecutor under the same Article 296 § 2 of the Criminal Code. The case had been initiated in May 2010 over the daubing with paint of the monument to Felix Dzherzhynsky however was then terminated due to the lack of elements of a crime in Hudymenko’s actions. The investigator applied to the court to have Hudymenko remanded in custody, but the court did not initially agree, only extending the term of detention by 10 days. However on 20 January a ruling was nonetheless passed to remand him in the SIZO [pre-trial detention unit] for two months. Artyom Matviyenko who is also charged with daubing paint over the monument, together with Hudymenko, is under a signed undertaking not to abscond.
Several members of Tryzub have been detained and released. Another four are being held in custody. Andriy Stempytsky and Stepan Bychek are accused of unlawful possession of weapons. Ihor Zahrebelny and Artyom Tsyhanyok of setting fire to the office of the Communist Party in Zaporizhya back in 2009.
It is difficult to speak with certainly about the criminal cases mentioned at the present stage since the investigation is not completed and some of the charges are unknown. However some things can, a priori, already be considered.
In the 2001 version of Article 296 of the Criminal Code, hooliganism is “flagrant violation of public order motivated by overt disrespect for society, accompanied by particular impudence or exceptional cynicism.” Yet the accused had no intention of insulting society, expressing disrespect since the overwhelming majority of society have a negative attitude to Stalin and Dzherzhynsky as the organizers of mass murder and protested against the erection of the bust of Stalin by the Zaporizhya communists. In both cases, the motive was entirely clear – to express their attitude to Stalin and Dzherzhynsky.
Thus, these acts were merely expressions of their views. It is interesting to draw a parallel between these forms of expressing ones views to the considerably more audacious form, that of burning the national flag in protest against the politics of the regime. According to Article 65 of Ukraine’s Constitution respect for State symbols is a duty of Ukrainian citizens, while Article 338 of the Criminal Code carries a punishment for public dishonoring of the state symbols of either Ukraine or other countries. The situation in the USA is different with the standards of freedom of expression of views being considerably higher.
It became common to burn the State flag in the USA during the period of mass protests against the Vietnam War at the end of the 1960s. In 1968 a federal law was passed on respect for the American flag. Analogous laws were passed in the majority of states. These laws qualified the public burning of the national flag as dishonour and a criminal offence.
After the application of these laws, the case reached the US Supreme Court. In 1989 the Supreme Court in the case of Texas vs. Johnson judged that the burning of the flag as a form of protest is guaranteed by the First Amendment and therefore all laws which ban such actions are unconstitutional. President George Bush, who held the opposite view, suggested that the Congress pass a special federal law establishing criminal liability for disrespect of the flag. The law was passed, however the Supreme Court immediately declared it unconstitutional since it violated the right of Americans to express their views. Since that time defenders of the flag have been trying to bypass the judgment of the Supreme Court by passing new amendments to the Constitution especially devoted to defense of the flag. Over recent years at least 12 such attempts have been made, yet no amendment has been adopted.
We can also apply the European mechanisms for protecting human rights: freedom of expression is defended by Article 10 of the European Convention. The actions of those accused of hooliganism fall under that Article. The actions of the agents of the State in response constitutes interference in exercising freedom of expression and, in accordance with Article 10, must be based on the law “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” and “be necessary in a democratic society”
We would note that the reaction of the communists and their supporters to the daubing of part on the monument to Dzherzhynsky; the erection of a bust of Stalin; the reaction to the beheading of the bust of Stalin are also ways of expressing their views. That is, in these cases, we are dealing with political discussion and actions linked with this. In accordance with European Court of Human Rights case law in the area of political discussions, “Article 10 leaves no room for restriction of freedom of expression”. The
European Courthas confirmed this in connection with numerous cases involving Kurds vs. Turkey (1994-1994) – applicants Aslan, Polat, Syurek, Karatash, Bashkai, Ibrahim Aksoi, Okutan, Kyurchyu, Varhii, and many others.
In order to establish whether there has been a violation of Article 10 one needs to determine whether the interference was well-founded. That is, firstly, whether it pursued a legitimate aim. If so, then, secondly, whether the interference was proportionate to the aim pursued. And thirdly, if so, whether the interference was necessary in a democratic country (for example, whether it was an adequate reaction to an urgent public need).
In considering this, we can draw an analogy with the well-known case of Salov vs. Ukraine. Donetsk lawyer Serhiy Salov was the authorized representative of presidential candidate Oleksandr Moroz at the 1999 elections. On 30 and 32 October he distributed 8 copies of a special issue of the newspaper Holos Ukrainy [Voice of Ukraine} from 29 October which asserted that the current President, Leonid Kuchma had died on 24 October. The issue was a fake. On 31 October 1999 the Kyiv District Prosecutor in Donetsk initiated a criminal investigation against Salov on a charge of obstructing the electoral rights of citizens (Article 127 § 2 of the Criminal Code). On 1 November 1999 Salov was arrested for circulating false information. He was held in a SIZO during the investigation and court proceedings from November right up to 1 June 2000, when the preventive measure was changed from remand in custody to a signed undertaking not to abscond. On 6 July 2000 a district court found him guilty of obstructing the exercise by citizens of their electoral rights by means of deception, in order to influence the results of the presidential elections. He received a five year suspended sentence with a two-year trial period in view of the fact that Salov’s actions “did not cause actual serious consequences”. The Regional and Supreme Courts upheld this ruling. Salov applied to the European Court alleging a violation of Article 5 § 3, Article 6 § 1 and Article 10 of the European Convention. The European Court found that these violations had taken place.
In considering whether Article 10 had been violated, the Court agreed that the newspaper which Salov had circulated contained false information and found that the interference of the State had pursued a legitimate aim, that of ensuring the right of voters to truthful information during the 1999 presidential campaign. However in view of the insignificant influence which the circulation of 8 copies of the newspaper and the seriousness of the punishment imposed, the Court found the interference to have been disproportionate pursuance of the legitimate aim. There was no consideration of whether such interference was necessary in a democratic society.
In the cases over the daubing with paint of the monument to Dzherzhynsky and beheading of the bust of Stalin, the proportionality of interference and need in a democratic society have clearly not been observed. Furthermore, the interference of the State was not based on the law since the legal qualification of the offence as hooliganism is incorrect and used in order to apply the most severe punishment possible.
We can thus confidently predict that if the members of Tryzub and VO Svoboda accused of hooliganism apply to the European Court of Human Rights, in both cases the Court will find violations by the State of Article 10. It is clear that Article 5 of the Convention which defends the right to freedom and personal security has also been violated. There are no lawful grounds for deprivation of liberty during the investigation which, according to European Court case law, would be deemed well-founded, in these cases.
However it is apparent that the daubing with paint and beheading of the bust cause damage. If the law enforcement bodies had raised the issue of compensation for the damage caused, this would have been an adequate reaction.
In our opinion, this is extremely dangerous and is reminiscent of the deliberately hyped up trials of the 1930s – 1950s, aimed at intimidating the population and undermining the law in the country. This looks like repression directed at inciting ideological enmity between the East and West of the country. Such behavior without any explanation or justification from the State could provoke the public, especially young people, to unforeseeable actions.
From this analysis it follows that the ten people accused of hooliganism over the beheading of the bust of Stalin and the daubing with paint of the monument to Dzherzhynsky are political prisoners in accordance to the definition given. Political persecution must stop! The charges of hooliganism must be dropped and those involved released from custody.
 Prepared by Yevhen Zakharov, Co-Chair of KHPG and Member of UHHRU Board.
 The Freedom Party – translator’s note/