Human rights in Ukraine 2011. POLITICAL PERSECUTIONS
In 2011, as a result of the resistance of Ukrainian society and devastating criticism of the Council of Europe, European Union, and leaders of many Western countries the criminal prosecution for political reasons was held up. There were nearly no new politically conditioned criminal cases, all political prisoners, besides several former government officials, were released from custody. However, no criminal investigation was terminated due to nonoccurrence of events and / or a crime; the court judgments in these cases give the impression of unfair and unlawful, while the extrajudicial persecution of community activists and participants of the protest movements went on. There were much more violations of freedom of peaceful assemblies and freedom of associations in 2011 than in 2010. In 2010, they renewed administrative detention and conviction for peaceful protests that had not been observed since 2004, such incidents were frequent and in 2011. The Security Service of Ukraine became more active in the criminal cases against politicians and politically conditioned actions against civil society activists.
Changing measure of restraint for Yuliya Tymoshenko and Yuriy Lutsenko from recognizance not to punitive detention had no legal basis. It is likely that the European Court will recognize the violation of Article 5 of the European Convention (right to freedom) with respect to both politicians. The trials in both cases were accompanied by significant violations of the right to a fair trial and showed disregard for the rule of law.
Seven years of imprisonment for Yuliya Tymoshenko for actions related to contracts for the supply of Russian gas, confirm the political motives of the criminal prosecution. This sentence resulted in tearing Ukraine away from European integration processes and destruction of foundations of criminal law and procedure. It showed complete dependence of the court on the direct intervention of executive power and influential political forces, dependence on political considerations in general, on irrepressible desire to find and punish someone for aberrations of life, for political and economic improprieties. It turned out that the Ukrainian justice is unable to resist the rampant spread of criminal law in areas that principally cannot be solved in the penal domain.
The sentence of Pechersk Court does not give answers to very substantial arguments made by the defense during the proceedings, and thereby violates the right of Yuliya Tymoshenko to informed decision under Article 6 of the European Convention on Human Rights. In particular, these are the following questions.
Did the accusation formulate with sufficient precision what rules in force at the time of the event forbade the Prime Minister of Ukraine to give instructions of which she was accused? Were these rules formulated with such precision that they could be breached and raise awareness of the wrongfulness of such actions?
Did the prosecution fetch enough evidence that if Tymoshenko had not performed the incriminated actions, the price of gas would have remained at the level of 2008? Did the prosecution provide evidence that other factors could have led to higher prices?
Did the prosecution provide sufficient evidence that the circumstances known under generalized name “the gas crisis of 2009” could not be treated as “justified risk conditions” in the meaning of Article 42 of the Criminal Code?
Can the rendering of somebody’s words be recognized as the evidence for the prosecution, i.e., that is the rendering of the words of the person who was not questioned during the trial, and whether the court of first instance was right relying on such evidence? Can the testimony of a person, whom defense was unable to examine during the trial, be considered an adequate evidence?
Can the thought, evaluation, or assumption of a witness who is not acting as an expert in the process be considered as evidence for the prosecution, and whether it was right that the court of first instance relied on such evidence?
Can the sentence be legal if the court failed to explore substantial evidence that may indicate in favor of the defendant?
Without juridical answers to these and other legal issues the sentencing of Yuliya Tymoshenko will remain an event of political life ruining criminal justice system, the rule of law in the state and legal certainty, affecting the entire system of governance and public life. The existence of such sentence will create an atmosphere in which any manager will not be certain about the consequences of her/his actions which not always unmistakable and sometimes lead to unexpected or unfavorable results.
At the level of state governance it will lead to paralysis of management because of the unwillingness of anyone to take responsibility; it will transform the state apparatus into the pack, where only the sympathy of the leader can protect a member of a pack against responsibility. This gives the government unprecedented opportunities for selective persecution, because it leaves only one criterion separating the legitimate from criminal behavior: sympathy of the government to certain actions and decisions.
In our opinion, the Cassation Court, which has to consider this matter, should pay attention to the need to provide a reasonable answer to the above questions and carefully verify the application of the norms of procedural law by the Pechersky Court.
The criminal cases involving Yuriy Lutsenko completely collapsed in court. Only one of numerous witnesses confirmed his testimony given during the preliminary investigation, while the in-court testimonies of the lion’s share of witnesses indicate the innocence of ex-minister. Besides, the charges look rather ridiculous. The actions in which Lutsenko has been incriminated are not criminally punishable and cannot generally be subject to criminal prosecution. The sentence to Yuriy Lutsenko is simply a mockery of justice.
We may venture to predict that in the future, if all Ukrainian courts leave sentences of Tymoshenko and Lutsenko in place, the European Court will find a violation of the right to a fair trial (Article 6), that there was been punishment without guilt (Article 7), and that the motives of prosecution were political (Article 18). But confirmation of this statement may occur only in a few years.
The chronicle of cases of victims of political repressions[2] and review of political persecution of the activists of civil society[3] give a general idea of the scale and nature of political persecutions. The government actions against politicians were widely covered in the media and the Internet; however, the media published much less about conflicts with the authorities of civil society activists, journalists, human rights activists, members of NGOs, members of trade unions, youth and student movements.
According to our observations, about 60 members of the public and 11 members of NGOs from 17 regions of the country were subjected to various forms of political persecution in 2010–2011. Criminal charges were brought against 30 people, in 3 cases administrative offences were fixed, in two instances civil cases were initiated. One person was sentenced to compulsory medical treatment. 27 people were submitted to limitation of liberty (arrest, detention or imprisonment) for various periods, 16 people suffered physical violence, and two persons emigrated. All of them faced violations of law or disproportionate state intervention.
The cases of political harassment of the representatives of civil society may be divided into four groups by political reasons of the state that lay at the heart of such persecutions. These are the reasons as follows:
1) “ideological”;
2) preservation of power by restricting human rights;
3) persecution for public activity;
4) quelling of the protest potential of the society.
The first group includes cases of civil activists, public figures and national patriotic organizations. These include the already mentioned in the annual reports of 2009-2010 cases of cutting the head of the bust of Stalin, splashing with paint of Dzerzhinsky’s monument, egg frying on the Eternal Flame, recent legal proceedings instigated for splashing paint at billboards depicting President. All valid judgments did not prescribe deprivation of freedom. However, the qualification of crimes is highly questionable in all these cases.
The obvious ideological reasons underlie the case of Lviv historian Ruslan Zabily about “preparing for disclosure of state secrets” and removal of more than fifty-year-old archival materials. The case was classified “top secret”, and Ruslan Zabily is a witness. The interrogations are conducted with quarterly intervals. But all this cannot change the fact that the Soviet documents classified “secret” and “top secret” taken from Zabily cannot be a state secret according to the Law of Ukraine “On State Secrets.”
The second group includes cases when, while defending the existing authorities, they limit fundamental liberties, first of all freedom of convictions, freedom of assembly and freedom of associations (in which cases we deal with violations of Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms). Numerous examples of such violations were listed in the relevant sections of this Report.
The third group includes cases of persecution for social activities of individuals and public organizations. There were very many such cases against human rights activists and social activists (Volodymyr Proskurin, Petro Prokopenko, Andriy Fiedosov, Dementiy Bely, Dmytro Groisman, Andriy Bondarenko and others) and certain organizations, such as NGOs “Class” from Alchevsk, “Center for Legal Protection of Odesa Residents” and others.
The fourth group comprise many cases when authorities are trying to intimidate protesters (entrepreneurs, Chernobyl veterans, Afghans, various youth groups) and bring an end to the protests. If the actions of authorities against the “adult” protest electorate are well covered and well-known, the suppression of youth protests needs further studies and description. This is due to a number of subjective factors, including the reluctance of students to publish and formally verify facts that occurred, because of their exposure to the university administration.
In conclusion, we should note that further developments in this area depend on several factors. While political repressions have been suspended, their threat remains. At any time the repressions of dissenters may return, if the “hawks” in the management of the state consider it advantageous to them, especially since many Ukrainians are scared already. And awareness of the need to correct mistakes and return to the dialogue with society is not observed. On the contrary, the power politics remains a dominating tendency. However, it seems that some authorities have already realized: the political persecutions result in increased external pressure on the state from the West and fail to reach its goal to stop protests against the current state policy and practice.
[1] Prepared by Yevhen Zakharov, Co-Chairman of the HHRG and Member of the Board of UHHRU, Borys Zakharov, HHRG, and Olexandra Matviychuk, Centre for Civil Liberties.
[2] Yevhen Zakharov, Borys Zakharov. Political persecutions in contemporary Ukraine. See: Http://khpg.org/index.php id=1321885956
[3] Olexandr Matviychuk. Harassment of civil society in Ukraine in 2011. See: http://khpg.org/index.php id=1321886708