“Prava Ludiny” (human rights) monthly bulletin, 2004, #07

The very beginning of presidential election campaign resembles a clown show. Yet, it would be very funny, if it would not be so sad and shameful. It is shameful for representatives of power, public figures, for managers of enterprises and state establishments. It is shameful to look into the eyes of young people, who grew in the post-Soviet time and do not know how to protect themselves from such cynical actions of the power, from the barefaced lie, which flows from radio and TV sets.

On 14 July the meeting-concert was organized in Kharkov for the support of the only candidate from power, Prime Minister Viktor Yanukovich. The citizens, who gathered to this meeting, did not conceal from correspondents of local mass media that they were forced to come there. Some bosses promised premiums or extra days off to their workers, and some – threatened those, who did not want to go to the meeting, with not-rendering of leave or even dismissal. Naturally, nobody complained to trade unions. Everybody, who came to this meeting, had to register in the corresponding lists. Many of them left the meeting at last after the registration. The impression made by this shameless humiliation on people is demonstrated by the fact that they were not afraid to express their indignation in front of TV cameras. Maybe the authorities hope that that the coercively gathered people will unanimously vote for the only pro-power candidate? Well, as the saying goes, “God deliver me from fools”… And, maybe, the officials gather such crowds not only for demonstration of their devotion to the future President, but with some other goals too? For instance, in the case of mass falsification of the election results, they would have the opportunity to say to the Western observers: “But you saw, how many people endorsed Viktor Yanukovich”.

Now the next stage has begun – the collection of signatures in the support of candidates. In Kharkov everybody, who is influenced by the power, were involved in this process. The work is well coordinated. Every enterprise, educational establishment, policlinic, communal enterprises and even private firms got the orders about the number of signatures for Yanukovich, which should be collected.

Here are some cases that occurred with the members of our organization – the Kharkov group for human rights protection.

Two women came to our colleague, by the way, a human rights protector with more that 40 years of experience, and asked to sign in the support of Yanukovich. When our colleague asked, why the data about the person collecting signatures were not included in the list (as it is demanded by Article 54 and 55 of the Law of Ukraine “On election of the President of Ukraine”), she got the answer that she could learn these data in the Kyivskiy district executive committee. Our colleague drove away the unlucky agitators. Yet, several days later other people came to her with the same entreaty, and again without the property filled list for signatures. This time these were the teachers of the neighboring school, who complained that they had been called from the leaves and made to collect some concrete quantity of signatures in the support of Yanukovich. But even these piteous teachers did not soften the position of our colleague and they went away without any results.

The collectors of signatures for Yanukovich found another our colleague in a polyclinic, where the pregnant young woman turned for consultation. The lady-doctor timidly asked to sign the list, explaining that she was going to vote for Viktor Yushchenko, but the head physician ordered her to collect signatures for the candidate from power. Persuading our colleague the doctor said that, of course, she could vote for anybody she wanted, but in such way she would render a service to the doctor. Perhaps, the length of work in human rights protection organization is important, because the young women agreed to sign the list.

And, finally, a most glaring example! Mykola P., a member of one of the parties, which is a part of the bloc “Our Ukraine”, a worker of one of large Kharkov enterprises, the plant “Kommunar”, turned to our group. He told that the administration of the plant forced the workers, mainly timekeepers and superintendents of workshops and departments, to collect signatures in support of V. Yanukovich. It is obvious that such organization of the collection of signatures must result in absolute absurd. Well, this happened at “Kommunar”. Head of one of the departments proposed his subordinates to sign in support of Yanukovich, saying that he would not be let to leave until he would collect 50 signatures. It should be noted that there was no brutal pressure on the side of the department head: he also felt some discomfort. Somebody signed, and somebody refused to do that. Yet, the head got a phone call from a worker of an unknown human rights protecting organization (this was our Mykola P.), who explained to the department head that he violated items 6 and 7 of Article 55 of the Law “On election of the President of Ukraine”, as well as Articles 364 and 365 of the Criminal Code. The effect was immediate: the collection of signatures was ceased, and the scared department head tore the already filled lists.

Yet, we have the impression that the power actively prepares to the election process too, for example, they want to know beforehand, who will not come to the election stations, who and how is going to vote. A translator of the Kharkov group for human rights protection, who lives in the Dzerzinski district of Kharkov, was visited by two girls, who explained that they were carrying out the sociological poll: for which candidate the dwellers were going to vote. The girls could not present any documents, but told that the poll was organized by the Dzerzinski district executive committee. When our colleague remarked that a sociological poll should be anonymous, the girls answered that they would be dismissed, if they would not bring these lists. Yet, for what the executive committee needs such data? No laws envisage the collection of such data.

Even if there are some people, who really endorse Yanukovich, and, naturally, there are such people in Kharkov, since the power again, like at the election-1994, play the “Russian card”, does Viktor Yanukovich need such support “under the lash”? About which trust of people one can say in such case?

And our medics and teachers? When they will stop to be slaves and bear all these humiliations? The state has done “so much” for these categories of citizens! Let us recollect the veto interposed by President Kuchma on the law on payment of arrears to teachers!

Well, we deserved all this. And we must do something, but not only criticize the power: at least, to refuse to go to a meeting or to sign for a candidate that does not seem to be worthy of that.

The authors of the request believe that the use of the mentioned provisions of the Law generates a collision, since item 1 of Article 64 of the Law “On election of the President of Ukraine” completely prohibits to the officials of organs of executive power and local self-government to take part in pre-election agitation, and item 15 of the same Article prohibits to the candidates to President’s post to engage their subordinates in election campaign only during labor hours. The constitutional request reads: “This collision not only breaks the integrity of the normative material, but also can essentially influence the course of the election campaign, since, on the one side, it contains the threat of the ungrounded bringing to responsibility of the candidates, who, being governed by item 15 of a 64 of the Law, engage their subordinates in the election campaign, and, on the other side, restricts the right of citizens to support their chiefs, who are registered as candidates to the post of the President of Ukraine”. In this connection the authors of the constitutional request ask the Constitutional Court to interpret immediately a number of legal terms and norms, which concern the probable participation of the officials of organs of executive power and local self-government in the election campaign.

In short, two top officials of the Kharkov oblast set a problem to the Constitutional Court, which it never considered before. And not only because less than six months has passed since the adoption of the Law “On election of the President of Ukraine”, and this law is not sufficiently run in yet, but also because the so-called constitutional request curtains the wish of the officials to legalize the widespread practices of conduction of election campaigns with the use of their posts and authorities, that is the methods, which are called “administrative resource”. Now the cost of such administrative resource is equal to the cost of victory for some candidates, so I can predict that they would continue their struggle for its legalization using all possible and impossible methods.

The considered request obviously can be related to such methods, since it is openly far-fetched and legally ignorant. Neither the head of oblast state administration nor the head of the oblast council are the subjects of the right to constitutional request, so they may not turn to the Constitutional Court for the official interpretation of laws.

Maybe, they wanted to turn to the Court as common citizens? Then why they gave their posts and referred to Article 41 of the Law “On Constitutional Court of Ukraine”, which contains the exhaustive list of the subjects of the right to constitutional request? It is also incomprehensible why the authors of the request referred to the Law “On ombudsperson”. Maybe, they hoped that their initiative would interest ombudsperson Nina Karpacheva? Yet, we reckon that she will not defend in the Constitutional Court the interests of the officials, who violate the right of voters for free expression of will. At that, the scale of these violations worry more and more both Ukrainian and world community. Recently six former USA congressmen, who visited the Kharkov, Poltava and Sumy oblasts, expressed their anxiety about this problem.

Well, let us imagine that the Constitutional Court will ignore all procedural violations, will start the investigation of the case after the request by E. Kushnariov and O. Kolesnik and will suddenly acknowledge that the heads of local state administrations are not subordinate to the Prime Minister, since they are formally appointed to their posts and dismissed by the President after the submission of the Cabinet of Ministers of Ukraine. You see, nothing is said about the Prime Minister. So, they are not responsible before or accountable to the Prime Minister, but are subordinate to the President and the Cabinet of Ministers. Taking into consideration the fact that the status of the Cabinet of Ministers, as well as the status of the Prime Minister, is not properly established by Ukrainian laws, then the Constitutional Court may easily come to the conclusion that the place of employment of the Prime Minister is the structure of the Cabinet of Ministers, but not the entire system of the organs of executive power, which includes local state administrations too. In practice this means that the candidate to President’s post Prime Minister of Ukraine Viktor Yanukovich will have the right to engage in his election campaign the enormous army of officials, which work in oblast and district administrations, as well as service transport, communications, rooms, copying equipment disposed by them. Even if all this would be done after the labor hours or on days off, all the same it would be done with wild enthusiasm, since this enthusiasm would be inspired not by powerless heads of election headquarters of a candidate to presidency, but by the heads of local state administrations dependent on the pro-power candidate more than somebody else.

Everybody know that many of the candidates carry out the agitation for the Prime Minister under the guise of various labor conferences and seminars, but they have to act carefully taking into account the law and numerous competitors, who attentively supervise the actions of the power. Soon the international observers will join in this work, and then the “only candidate” would not be able to avoid the scandals and sanctions on the side of the Central election commission.

The first ground for such scandal was observed on 14 July 2004, when Kharkov authorities organized a pompous meeting in the support of Viktor Yanukovich. In order to demonstrate the “nation-wide love” to the Prime Minister, more than 50 thousand persons, mainly workers of budget organizations and great enterprises, were driven to the central square of the city. Later the Kharkov governor denied the accusation of the use of administrative resource, referring that the mass action had been organized by the local organization of the NDP. Yet, Mr. Kushnariov forgot to mention that it was he, who headed the oblast organization of this party, and the city organization was headed by Kharkov mayor Vladimir Shumilkin. Thanks to these state officials, Kharkov has become a reservation of administrative resource, where the “correct” political views is a precondition for successful career, business and creative work. And the fact that the constitutional request, in which the oblast leaders called into question the legal norms, which restricted the administrative meddling to the election process and the articles envisaging the responsibility for such meddling, was created in Kharkov is not an occasion. This is a precedent.

Evidently, now these restrictions and prohibitions are not sufficient for guaranteeing of honest and transparent election. So, I want to suggest the legislators to introduce changes into the laws of Ukraine, which would restrict the participation of certain categories of state officials and officials of the organs of local self-government (say, 1-3 categories) in the political parties, like it has been done recently regarding the officers of tax organs. Firstly, this will substantially restrict the motivation of use of administrative resource for the achievement of political goals, and, secondly, would direct the energy of the party functionaries to the solution of social and economic problems of their voters, about whom they “care” so much. I hope that after this the questions would not arise, to whom the heads of town administrations are subordinate and to whom they must serve.

A concrete question demands a concrete answer.

***

“Prava ludyny” commentary. The request directed to the Constitutional Court by Evhen Kushnariov and Oleksiy Kolesnik demonstrates a certain legal collision. On the one side, state officials should not use their power for the support of concrete candidates. On the other side, they also have their own views, sympathies and antipathies and may interpret the prohibition to take part in the election campaign as restriction of their freedom of expression. In the countries with well-developed party system this collision is neutralized by the established practices and public control over election campaigns. As to Ukraine, we reckon that item 1 of Article 64 of the Law on Presidential election may be regarded as a proportional and reasonable restriction, since its abolition would result in legalization of the use of administrative resource in the interests of the pro-power candidates. The examples of such use could be observed during the parliamentary election in 1998 and 2002, presidential election-1999 and the referendum.

As to the form of the appeal to the Constitutional Court, it is astonishing. The Constitutional Court should reject this request, since, according to Article 41 of the Law on the Constitutional Court, E. Kushnariov and O. Kolesnik may not be subjects of a constitutional request (although they, for some reasons, refer just to this article). They have the right to hand a constitutional request as Ukrainian citizens in accordance with Article 42 of the Law, but they had no grounds (ambiguous interpretation of the provisions of the Ukrainian Constitution or laws of Ukraine by courts or other organs of state power, which resulted in violation of their rights) for this. So, let us wait for the reaction of the Constitutional Court…

Evhen Zakharov

According to item 2 of Article 150 of the Constitution of Ukraine, Article 41 of the Law of Ukraine “On Constitutional Court of Ukraine” and item 3 of Article 13 of the Law of Ukraine “On ombudsperson”, we are turning to the Constitutional Court of Ukraine with the request about the official interpretation of the provisions of items 1 and 15 of Article 64 of Law of Ukraine “On election of the President of Ukraine” (the Law, in what follows) of 5 March 1999 No. 474-ХІУ (“Vedomosti Verkhovnoy Rady”, 1999, No. 14, p. 81; 1999, No. 28, p. 237; 1999, No. 44, p. 387; 2001, No. 9, p. 38; 2003, No. 27, p. 209; 2003, No. 30, p. 247) (in the version of Law of Ukraine of 18 March 2004 No. 1630-ІУ (“Uriadovy Kuryer”, 2004, No. 64)).

The above-mentioned items of Article 64 of the Law, which introduce the restrictions concerning the conduction of election campaign, read:

«1. Participation in election campaign is prohibited to:

...2) organs of executive power and organs of local self-government, their officials…

15. It is prohibited to candidates to presidency, who occupy the posts in the organs of executive power and organs of local self-government, at state and communal enterprises, in institutions, establishments and organizations, military units, to use for pre-election agitation or other actions connected with election campaign their subordinates (during labor hours), service transport, communications, equipment, rooms, other objects and resources at the place of employment, to use service or production conferences, gatherings of labor collectives for the conduction of pre-election agitation”.

A collision arises from the quoted provisions: item 1 of Article 64 of the Law fully prohibits to the officials of the organs of executive power and organs of local self-government to take part in election campaign, and item 15 prohibits to the candidates to the President’s post to engage the above-mentioned persons only at labor hours.

In this connection the question appears about the correlation between the provisions of items 1 and 15 of Article 64 of the Law: whether item 15 concretizes item 1 or it stipulates the exception from the general rule envisaged by item 1 of Article 64 of the Law.

The system interpretation of item 15 of Article 64 and item 4 of Article 56 of the Law also evidences about certain collision of the norms. According to item 4 part of Article 56 of the Law, the Central election commission issues a warning to the candidate to presidency and the party (bloc), which nominated him, in the case, when the candidate, who occupied the posts in the organs of executive power and organs of local self-government, at state and communal enterprises, in organizations, establishments and organizations, military units, created in compliance with Ukrainian laws, used for pre-election agitation his subordinates, service transport, communications, equipment, rooms, other objects and resources at the place of employment. At that the time, at which the subordinates were used for the election campaign, is not mentioned. Yet, item 15 of the Law, which contains the restrictions connected with pre-election agitation, prohibits to engage the subordinates in the election campaign only during labor hours, thus permitting to engage them at other time. This collision not only breaks the integrity of the normative material, but also can essentially influence the course of the election campaign, since, on the one side, it contains the threat of the ungrounded bringing to responsibility of the candidates, who, being governed by item 15 of Article 64 of the Law, engage their subordinates in the election campaign, and, on the other side, restricts the right of citizens to support their chiefs, who are registered as candidates to the post of the President of Ukraine.

The considered problem entails the necessity of clarification of a series of juridical terms, used by legislators in the Law “On election of the President of Ukraine”, in particular, the term “subordinates”, mentioned in item 15 of Article 64, since this term is insufficiently distinct and may be interpreted ambiguously in practice. Which juridical features should be peculiar to the relations between candidates and their “subordinates” – control, accountability, direct leadership or something else? In particular, whether the head of local state administration can be regarded as a person, “subordinate” to the Prime Minister of Ukraine? Another element of item 15 of Article 64 needs the explanation: whether the formula “at the place of employment” concerns only service transport, communications, equipment, rooms or also the subordinates?

Besides, the question arises about the use of the term “the place of employment” mentioned in item 15 of Article 64 and item 4 of part 3 of Article 56. What should be regarded as “the place of employment” of a candidate to presidency, who is a state official: the organ, enterprise, establishment or organization, where he works, or the entire system (for instance, the system of a ministry or the system of the organs of executive power), to which he belongs?

Taking into account the fact that the possibility of participation in the election campaign of many citizens of Ukraine, who occupy posts in the organs of executive power and organs of local self-government, and, respectively, the form of realization by them of their constitutional right for participation in election, depends on the solution of this question, we, on the basis of Article 150 of the Constitution of Ukraine, item 4 of Article 13, Articles 39, 41 and 93 of the Law of Ukraine “On Constitutional Court of Ukraine”,

ASK:

To give the official interpretation of items 1 and 15 of Article 64 of the Law of Ukraine “On election of the President of Ukraine” in the part concerning the possibility of participation in election campaign of the officials of the organs of executive power and organs of local self-government and the criteria of relating them to the category of “subordinates” of the candidates to presidency, who occupy the posts in the organs of executive power and organs of local self-government, at state and communal enterprises, in institutions, establishments and organizations, military units. Moreover, in the context of these questions we ask to give the official interpretation of item 4 of part 3 of Article 56 of the Law of Ukraine “On election of the President of Ukraine”. Since the election campaign in Ukraine will end on 30 October 2004, we ask, in accordance with part 2 of Article 57 of the Law of Ukraine “On Constitutional Court of Ukraine”, to consider the request immediately.

Head of the Kharkov oblast state administration E. Kushnariov

Head of the Kharkov oblast council O. Kolesnik

Recently the cases have become frequent in the Kharkov oblast of persecutions and dismissals of people for their political views. The Kharkov oblast, headed by so democratic governor E. Kushnariov, does not differ much from, for instance, Mukachevo.

The first story was connected with V. Govorukha, a candidate of science, a teacher of the regional institute of National Academy of management at the President of Ukraine. The reason of his dismissal was, as always, banal – he had been elected to the post of the Head of the Kharkov oblast organization of the all-Ukrainian union “For Ukraine, for Yushchenko”.

Then N. Tkacheva, a teacher of mathematics in the settlement of Savintsy, a winner of the competition “Teacher of the year”, was sacked. This happened after her participation in the “Forum of educators” organized by the fraction “Our Ukraine”.

On 7 July, after numerous persecutions on the side of administration, Yu. Petko had to leave his job in the Novaya Vodolaga department of “Sberbank”. The reason was the same: Mr. Petko had become a deputy head of the district headquarters of candidate to presidency V. Yushchenko. There were many other similar cases.

Another peculiarity should be pointed out. In spite of all intimidations, dismissals and penalties, people preferred to leave their job, but not refused from their views. The authorities should seriously think over this situation.

During the period from 13 June to 23 June the Kharkov group for human rights protection held a series of seminars for law-enforcers of the Zaporozhye, Kherson, Nikolayev and Kirovograd oblasts. The seminars were conducted in the framework of the project “Campaign against torture and cruel treatment in Ukraine” realized by the Kharkov group for human rights protection in cooperation with regional partner organizations in different regions of Ukraine.

Three two-day seminars were held: in Zaporozhye – 14-15 June, in Kherson – 16-17 June, in Kirovograd – 21-22 June, and one one-day seminar in Nikolayev on 19 June. It was impossible to organize the two-day seminar in Nikolayev because of the holiday, the Day of district militia officers, which was conducted on 18 June. So, the Ministry of Interior asked either to hold the seminar on other days or to reduce it to one day. We decided to reduce the seminar without loss of matter at the expense of shortening of breaks and more compressed presentation of the material.

All in all, 223 persons took part in the seminars:

Zaporozhye – 50 persons, among them 45 law-enforcers and 5 representatives of NGOs;

Kherson – 80 persons, among them 76 law-enforcers, 2 journalists and 2 representatives of NGOs;

Nikolayev – 47 persons, among them 45 law-enforcers and 2 representatives of NGOs;

Kirovograd – 46 persons, among them 36 law-enforcers, 5 journalists and 5 representatives of NGOs.

M. Paeta, the head of a department of the Ministry of Interior of Ukraine, and representatives of oblast directorates of the Ministry of Interior participated in all seminars. We are grateful to the Ministry of Interior of Ukraine and oblast directorates for the help in organization of the seminars.

Participants of the seminars listened to the lectures:

1.  Prohibition of maltreatment in the European Convention (Article 3).

2.  Right to liberty in the European Convention (Article 5).

3.  Ukraine as a participant of the European Convention on human rights.

The following lecturers took part in the seminars in Zaporozhye and Kherson: Arkadiy Bushchenko, an advocate of the Kharkov oblast collegium of advocates, an expert of the Kharkov group for human rights protection; Oleksiy Solovyev, the main specialist of the department of criminal process of the National Bureau in charge of the questions of observance of the European Convention on the protection of human rights and fundamental freedoms (the Ministry of Justice of Ukraine); Arseniy Miliutin, the head of the department of civil and economic process of the National Bureau; Yuri Bilousov, a teacher of the department of applied sociology of the National University of internal affairs, candidate of sociological sciences, militia captain; Oleg Martinenko, the head of the department of criminal right and criminology of the National University of internal affairs, candidate of law, lieutenant colonel of militia; Ludmila Klochko, the head of public reception office of the Kharkov group for human rights protection.

The lectures were founded on theoretical material, on the examples of law enforcement practices and on the decisions of the European Court concerning Ukraine, as well as on the materials of sociological research, which had been carried out by the National University of internal affairs in 2003-2004 in the framework of the project “Campaign against torture and cruel treatment in Ukraine”.

The lecturers used the interactive methods of presentation of the material and elements of role games.

After every lecture the lively discussion of the problems began, which turned into informal communication during the breaks for coffee or dinner. Such communication was very useful both for the participants of the seminars and for trainers.

In the course of seminars new group of trainers formed, which managed to make the integral material from separate lectures.

Participants of the seminars obtained literature, which was distributed by the Kharkov group for human rights protection in the framework of the project:

“Against torture. International tools for preventing torture and cruel treatment”

“Against torture. European tools for preventing torture and cruel treatment”

“Against torture. Systematized digest of decisions of the European Court of human rights”

“Against torture. Review of the messages about cruel treatment and application of torture. 2003”

“Review of the decisions of the European Court of human rights on Article 3 of the Convention”

On 26 June 2004 officers Putilin and Bolotin from the Alushta district militia precinct beat imam Elvin Kadyrov, a worker of the local mosque.

The militiamen confiscated the equipment for making confectionery from one of parishioners, and the man turned to the imam for advice and help. So, Kadyrov visited the local militia precinct. When he asked about the procedure of return of the confiscated property, militia officers Putilin and Bolotin answered vaguely and roughly, with use of unprintable words.

Kadyrov’s remark that the post and uniform did not give the right to insult and humiliate other people provoked the storm of indignation of the militiamen. Although imam Kadyrov had already left the room, they returned him coercively, beat, handcuffed and drove to the room for the detained. The militiamen accompanied their actions with grievous insults concerning Kadyrov and promises to imprison him. Ruslan Eredjepov, a parishioner of the local mosque, who was present there, began to cry that Kadyrov was an imam and asked to stop the beating. Yet, this fact did not discourage Putilin and Bolotin. Then Eredjepov ran for help. Soon the parishioners and representatives of the local Majlis gathered in the precinct. They saw the handcuffed, beaten and bloodstained Kadyrov, staying near the wall in Putilin’s office. They asked to release the imam, to take him to a hospital, but the militia officers did not react. Only the arrival of Umer Chabanov, the chairman of the Alushta regional Majlis, changed the situation. Kadyrov was, at last, unshackled and transported to the local hospital, where he stays until now. Prosecutors of Alushta and the Crimea, the head of the Alushta town militia directorate, deputies of the Alushta town council and other organizations, which must react to such cases, are informed in the written form about the incident.

Imam Elvin Kadyrov, being a religious man, pardoned his offenders. But, undoubtedly, the situation requires the reaction and legal estimation of the competent organs.

The material prepared on the basis of the data given by Umer Chabanov,

the chairman of the Alushta regional Majlis

Advocate Aleksandr Lesovoy, who closely cooperates with the Fund of professional support of the victims of torture from the very beginning of his work, achieved a very important success in the national court. This decision was one of the greatest successes of the Fund of professional support. Ms. Makarova, who, on 17 December 2003, had not been able to prove the illegality of her detention, turned to the European Court of human rights, and one could predict that the European Court would decide in her favor. However, the decision of the appeal court is must more important result both for Ms. Makarova and for Ukraine as a whole, since it is known that one decision of a national court, which protects human rights, is worth tens of decisions of international organs.

The decision concerns one of the most neglected spheres of right: detention for the commitment of an administrative offence. The professionals, who work in the system of criminal proceedings, and the people, who deal with this system, know how frequently the militiamen use the illegal administrative detention in order to obtain the additional time for “work” with the suspected. The considered decision is interesting in many respects and evidences about the change in the approach of courts to the protection of the right to liberty, to the practical application of the norms of the Constitution and international right.

We hope that the Supreme Court of Ukraine will not annul this decision.

Arkadiy Bushchenko

DECISION

IN THE NAME OF UKRAINE

On 21 June 2004 the collegium of judges of the court chamber in charge of civil cases of the Appeal court of the Autonomous Republic of Crimea consisting of:

Chairman judge V. Sirotiuk

Judges N. Pankov and G. Isaev

Secretary M. Bakhtagareeva

With the participation of advocate A. Lesovoy

Considered at the open court sitting in Simferopol the civil case after the complaint of Lydia Makarova against the illegal actions of the officers of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea, prosecutor’s office of the Bakhchisaray district of the Crimea, and after the appeal complaint of L. Makarova against the decision of the Bakhchisaray district court of the Crimea of 17 December 2003, and

RESOLVED:

L. Makarova turned to court with the complaint according to chapter 31-A of the Civil-Procedural Code of Ukraine and asked to acknowledge as illegal the actions of the officers of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea and the prosecutor’s office of the Bakhchisaray district of the Crimea connected with her detention on 25 July 2003 and holding in custody from 25 July to 4 August 2003.

The complaint is motivated by the fact that on 25 July 2003 she was detained by the officers of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea in accordance with Article 263 of the Code of Ukraine on Administrative Offences (CUAO) of Ukraine and taken to the preliminary prison of the Bakhchisaray district, where she was kept, with the sanction of the district prosecutor, for ten days, after which was released. The claimant reckons that her holding in custody contradicts Article 29 of the Constitution of Ukraine and Article 5 of the European Convention on the protection of human rights and fundamental freedoms.

By the decision of the Bakhchisaray district court of Crimea of 17 December 2003 the complaint by L. Makarova was not satisfied.

In the appeal complaint the claimant insists on the unlawfulness of the decision, so she asks to reverse it and to issue new decision, which would satisfy her complaint.

The collegium of judges listened to the judge-speaker, representatives of L. Makarova and representatives of the Bakhchisaray district militia department, studied the materials of the case and the presented proofs, and resolved that the complaint had to be satisfied.

Refusing to satisfy the complaint the court of the first instance proceeded from the fact that L. Makarova had been detained by militia officers on the basis of Article 263 of the CUAO, since narcotic drugs had been found in her dwelling during the search, and the detention had been caused by the necessity to identify her. The court came to the conclusion that the actions of the officers of the Bakhchisaray district department and the prosecutor’s office of the Bakhchisaray district did not contradict laws, the officials acted within the bounds of their authorities, and the claimant could not prove in court that she has an identity card at the moment of detention.

Such conclusions of the court do not conform to circumstances of the case and the demands of law.

The contents of the protocol evidence that on 25 July 2003 L. Makarova was detained at her place of residence for three days in compliance with Article 263 of the CUAO. The reason of the detention was the discovery of narcotic drugs in L. Makarova’s dwelling in the course of search.

On 28 July the acting prosecutor of the Bakhchisaray district prolonged the term of detention of L. Makarova to ten days (page 40 of the case materials).

The above-mentioned actions of the officers of the Bakhchisaray district militia department and the district prosecutor’s office contradict part 2 of Article 29 of the Constitution of Ukraine and Article 263 of the CUAO.

According to part 2 of Article 29 of the Constitution of Ukraine, anybody can be arrested or hold in custody only after the motivated court decision and only on the grounds and in accordance with the procedure stipulated by law.

By the sense and purpose of Article 263 of the CUAO, a person that committed an administrative offence can be detained in administrative order. This article establishes the terms of administrative detainment.

Thus, the protocol about the administrative detention of L. Makarova must evidence that the detained person is suspected of an administrative offence or committed such offence.

The court did not disclose any information that the protocol on an administrative offence had been compiled regarding L. Makarova and she had been brought to administrative responsibility according to legal procedure.

Representatives of the Bakhchisaray district militia department explained, in the court of the appeal instance, that the detention of L. Makarova had been carried out in the connection with the commitment by her of a criminal offence, the search in her dwelling had been conducted with court sanction and after the search the criminal case after Articles 307 and 309 of the CC of Ukraine had been started against her.

On 29 March 2004 the Bakhchisaray district court condemned L. Makarova for the commitment of the crimes envisaged by Articles 307 part 2 and 309 part 2 of the CC of Ukraine to five years of deprivation of liberty. In accordance with Article 75 of the CC of Ukraine, L. Makarova was released from the service of sentence (pages 49-50).

According to Article 267 of the CUAO, the interested person may appeal against administrative detention, in particular, to court.

Absence in law of the directions on the procedure of consideration of such complaints cannot be an obstacle for consideration of the complaint of L. Makarova by virtue of the clauses of item 1 of Article 6 of the European Convention on the protection of human rights and fundamental freedoms, which clauses concern the access to justice.

Rules of Article 5 of the European Convention on the protection of human rights and fundamental freedoms reads: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”.

Starting from the above-said, the collegium of judges comes to the conclusion that the detention and holding in custody from 25 July to 4 August 2003 of L. Makarova on the suspicion of commitment by her of a criminal offence on the basis of Article 263 of the Code on administrative offences contradicts Article 5 of the European Convention on the protection of human rights and fundamental freedoms.

Taking into account that the court of the first instance incorrectly applied the norms of the material right and its conclusions did not correspond to circumstances of the case, the decision of the court of the first instance must be reversed by new decision on this case.

On the basis of the above arguments and Articles 11, 301, 309 and 312 of the Civil-Procedural Code of Ukraine, the collegium of judges of the court chamber in charge of civil cases

RESOLVED:

To satisfy the appeal complaint of Lydia Makarova.

To reverse the decision of the Bakhchisaray district court of the Crimea of 17 December 2003, to issue new decision.

To satisfy the complaint of L. Makarova. To recognize as illegal the actions of the head of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea and of the acting prosecutor of the Bakhchisaray district of the Crimea, connected with detention and holding in custody of Lydia Makarova on the basis of Article 263 of the CUAO during the period from 25 July to 4 August 2003.

To recognize as illegal the detention of Lydia Makarova and holding her in custody from 25 July to 4 August 2003.

The cassation may be handed against this decision to the Supreme Court of Ukraine during a month.

Judges: V. Sirotiuk, N. Pankov, G. Isaev

Today our state does not deny the existence of this or that right. Instead of that it narrows the sense of rights or widens the circle of the grounds for restriction of these rights.

The right for peaceful assemblies and demonstrations is stipulated by scores of international documents. The main tool for guaranteeing of this right in Europe is Article 11 of the European Convention on the protection of human rights and fundamental freedoms in the light of practices of the European Court of human rights.

Article 11 of the European Convention reads: “Everyone has the right to freedom of peaceful assembly… No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society:

1)  in the interests of national security or public safety;

2)  for the prevention of disorder or crime;

3)  for the protection of health or morals;

4)  for the protection of the rights and freedoms of others.

This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

It should be noted that the term “everyone” means all persons that stay on the territory of Ukraine legally. So, the restriction of the right of foreigners to participation in or organization of any demonstrations is a violation of the European Convention.

Both private and public assemblies must be included into the concept “peaceful assemblies”. Yet, the number of restrictions concerning public assemblies is much more, and the restrictions of private assemblies are imposed only for the prevention of crime.

Public meetings and demonstrations are used by the persons, who have the restricted access to mass media, for expression of their position to a great number of people and, thus, for attraction of attention of public. That is why the Convention regards the right to peaceful demonstrations as a fundamental right.

Only one general restriction is established in the connection with realization of this right: such assembly must be peaceful. So, the assemblies, which are accompanied with destruction, violence or imply such violent actions, are not protected by Article 11 of the Convention.

However, even peaceful assemblies may be restricted under the above-mentioned four conditions, which the power, especially in the post-Soviet countries, tries to widen. The power does not understand that these restrictions must be imposed taking into account their necessity in a democratic society.

Naturally, every demonstration, march or other action of this kind causes a lot of problems for the power. Yet, the European Court of human rights confirms that this article imply the positive obligations of the state to protect those, who are realizing their right to peaceful assemblies, from the violence on the side of their opponents, in particular, from counter-demonstrations (the case organization “Platform “Doctors for life”” vs. Austria, 1985, paragraphs 65-72).

Since the both sides realize the same right guaranteed by Article 11 of the European Convention, then if one side tries to impede the actions of another, the power must, before all, guarantee the rights of the side that conducts the assembly peacefully:

“Any demonstration can irritate or offend those, who protest against the ideas and demands, which are endorsed by this demonstration. Nevertheless, the participants of the action must have the possibility to conduct it without fear of using physical force to them by the opponents: such fear would hinder them from expression of their opinions on socially important questions. In a democratic society the right for conduction of counter-demonstrations may not restrict the right for demonstrations. Therefore, guaranteeing of the real, efficient freedom of peaceful assembly may not consist only in the non-interference of the power: the purely negative conception of the role of the state contradicts the subject and goal of Article 11”, reads the above-mentioned decision of the European Court of human rights.

Thus, the widespread practice of prohibition of peaceful assemblies only on the basis of the fact that peaceful assemblies of two opposite sides will be conducted at the same place cannot be the ground for restriction of the right to peaceful assemblies. Such practice may be regarded as one contradicting the European standards. Yet, such principle underlies almost all prohibitions of peaceful assemblies throughout Ukraine: in Mukachevo, Lviv, Kyiv, Kharkov, etc.

In this connection it is necessary to introduce the legal tools for the protection of the right for peaceful assemblies. For example, the laws of Austria envisage a number of crimes: activists of counter-demonstrations are the subjects of these crimes. At that it is important, which side was the first, who handed the application for the conduction of an action at this or that place. Yet, the choice of such tools and methods for guaranteeing of the right to peaceful assemblies fully depends on a state. The European Court of human rights only obligates to take the proper measures, and the choice of these measures is carried out on the national level. Naturally, this obligation of the state must be fulfilled gratis for the organizers of peaceful assemblies.

In particular, the norm about the duty of the organizers to inform the power about the conduction of public peaceful assemblies does not contradict the European practices. Yet, obviously, the terms of informing must be more reasonable and flexible. For instance, it should be advisable to introduce the legal norm about the terms, but it should be also pointed out that the term may be decreased after the agreement with law-enforcing organs. It should be also more reasonable to inform not a representative of the local power, but, first of all, the law-enforcing organs, especially, when the conduction of the action is connected with the blocking of traffic or other influence on the life of settlement. Another alternative of regulation can envisage different term of informing depending on the prospective number of participants of the actions and on its type.

On the whole, the power may not prohibit in general the conduction of peaceful assemblies in these or those places. Such prohibitions may be issued temporarily under certain conditions and on the basis of certain facts. This especially concerns the central districts of towns, since the permission to conduct public actions in outlying districts or outside the town contradicts the goal and essence of the right to peaceful assemblies.

The establishment of time limits of the conduction of peaceful assemblies, which are stipulated by law draft No. 5242-2, also seems improper in the context of Article 11 of the European Convention.

The greatest number of conflicts is aroused by the question concerning the conduction of peaceful assemblies on a private territory. Here the European Court rather inclines to the idea that the proprietary right is not important as regards public places: halls, sport arenas, shops, markets, etc., which are formally privately owned. This means that the status of publicity cannot restrict the right for peaceful assemblies. However, in the USA this question was solved in favor of the proprietary right.

Taking into account everything above-said, we reckon that law draft No. 5242-2 absolutely does not agree with these principles and conceptually does not conform to the spirit and letter of Article 11 of the European Convention on the protection of human rights and fundamental freedoms, since this law draft violates almost all demands of Article 11. On the other side, law draft No. 5242-2 takes into account, to a great extent, the European standards on realization of the right to peaceful assemblies and can be considered by the Parliament as a basis.

During the 20^th century the students in Europe were the bared nerve, which acutely reacted to unfairness. The experience has showed that Ukraine is not an exception.

The Ukrainian Helsinki Union of human rights is extremely worried with recent events in Sumy. According to the information of the press-center of the Ministry of Interior, for more than a month the law-enforcers tried to guarantee the public order on the territory of the students’ tent camp and the safety of its inhabitants. However, it is noteworthy that the militiamen were not present near the tent camp either on 2, or on 5, or on 23 July, when a poisonous liquid was splashed around (which endangered the right to life). They were also absent during the repeated “annoyances” of drunks and when one person was taken to hospital by a motor ambulance after an attack of strangers (then the inhabitants of the camp caught the guilty by themselves, passed him to militia and presented the witnesses; yet, the results of the investigation are still unknown, although the parents, students and teachers are writing numerous appeals to the Ministry of Interior and the Ministry of extraordinary situations). And at night of 31 July, when it became known about the intention of students to organize the march to Kyiv, the law-enforcers rushed into the camp, detained, by different data, from 10 to 20 students and tried to destroy the tents. During this attempt to ruin the tent camp the property of many participants of the protest action disappeared or was damaged.

We believe that the above-mentioned actions violated the right to freedom of peaceful assemblies, freedom of expression, right to liberty and personal security, and the proprietary right. The following arguments prove these statements.

Firstly, according to Article 39 of the Constitution of Ukraine, restriction of the right of citizens to gather peacefully, without arms, and conduct assemblies, meetings, rallies, street marches and demonstrations may be imposed by court in accordance with law and only in interests of national security and public order, or with the aim to prevent disorders or crimes, for protection of health of population or protection of rights and freedoms and other people. There was no court decision about the restriction of realization by citizens of this right at the moment of the described actions of Sumy militia. The information about probable commitment of crimes by the participants of the tent camp was not confirmed, since none of the detained was accused of anything. In fact, several tens of persons were detained without grounds, which was directly connected with the action held by the students. After the dispersal of the tent camp 8 persons were condemned for resistance to militia and 2 – for petty hooliganism, which obviously did not correspond to the goal of the actions of militia. This means that the actions of militia were ungrounded, disproportionate and biased.

Secondly, Article 19 of the Constitution of Ukraine, according to which the organs of state power and local self-government, their officials must act only on the basis and within the limits of the Constitution and laws of Ukraine, and only by methods envisaged by these laws; Article 11 of the Law of Ukraine “On militia”, which establishes the rights rendered to militia for the fulfillment of its duties, does not stipulate the right to restrict constitutional rights without the proper grounds.

Thirdly, according to Article 14 of the Constitution of Ukraine, the proprietary right is inviolable and nobody can be illegally deprived of the proprietary right. In the course of the illegal search of tent camp and personal search of the participants of the peaceful action, their personal property was damaged or disappeared.

It should be also noted that these actions of Sumy militia violated:

a)  principles of activities of militia (Article 3 of the Law of Ukraine “On militia”) -- “activities of militia are based on the principles of legality”;

b)  basic tasks of militia (Article 2 of the Law of Ukraine “On militia”) – “protection of rights and freedoms of citizens, their legal interests”.

Now representatives of the power do their best to prevent the students’ march. We want to declare that there are no legal grounds for this, and such actions, impeding the peaceful protest actions, are illegal. Yesterday Sergiy Tigipko, the head of V. Yanukovich’s headquarters, resorted to open threats: “The power needs stability, and if somebody would distort this stability, the problems can appear”. We want to remind Mr. Tigipko about article 3 of the Constitution, according to which the support and protection of human rights is the main task of the state. We want to point out that there is nothing illegal in the students’ march, and the power should promote this step and guarantee the public order, but not threaten students with violent actions.

The students’ action has purely peaceful character, they do not commit and do not intend to commit any illegal doings for the achievement of their goals. We denounce the attempt of the power to present the considered events as illegal activities or the activities that endanger the stability in the state, which is incompatible with democratic and European values.

We demand from representatives of the power to observe the Constitution and Ukrainian laws and not to violate the human rights and fundamental freedoms envisaged by the European Convention on human rights. We demand not to use the law-enforcing organs for political purposes.

We want to point out that expression by people of any political views in a peaceful way is a fundamental value of a democratic state, and the state must do its best for the creation of proper conditions for this, no matter whether these views are oppositional or pro-power.

Evhen Zakharov,

Head of the Board of the Ukrainian Helsinki Union of human rights

4 August 2004

Reference:

The Ukrainian Helsinki Union of human rights is the all-Ukrainian Association of public human rights protecting organizations, the main goal of which is the promotion of practical application of the humanitarian articles of the Concluding Act of the Helsinki Council on safety and cooperation in Europe of 1975, other international documents adopted for its development and all obligations of Ukraine in the sphere of human rights and fundamental freedoms. The Ukrainian Helsinki Union of human rights was created on 1 April 2004 and consists of 15 public human rights protecting organizations.

***

The law is still absent in Ukraine, which would regulate the conduction of peaceful public actions. “Prava ludyny” wrote about this more than once. Two law drafts, Nos. 5242 and 5242-2, had been suggested, but both drafts were rejected by the Parliament. So, a new, most perfect, law should be developed, which would be adopted by the Parliament. In this connection the given below general remarks concerning the principles of creation of such law seem to be rather important.

The Kharkov Union of soldiers’ mothers (KhUSM) continues the monitoring of the quality of recruiting campaigns. After the end of the autumn recruiting campaign-2003 we sent 70 letters to the military units, to which the recruits from Kharkov and the oblast had been directed. We received 28 responses -- 40% of the total number of the sent letters. Commanders of the military units provided data about 681 persons.

Commanders of 9 military units are satisfied with the fresh forces, they point out that the youths are ready for the service in the Ukrainian army. This concerns 146 servicemen, that is 21.44% of the total number.

76 young soldiers from 13 military units got to hospitals or medical units during a month after the arrival to their military units, which makes 11.6% of the total number (681) and 16.96% of the number of Kharkovites in these units.

8 persons were discovered, whose chronic diseases had exacerbated – 1.17% of the total number of the examined. By the way, according to the results of monitoring of the spring recruiting campaign-2003, this proportion was 5.59%. This evidences on the improvement of work of medical recruiting commissions.

Yet, some drawbacks were not liquidated. This is confirmed by the cases, where servicemen are dismissed because of the state of health.

So, the commander of military unit А3769 writes in his letter: “At the thorough medical examination, which was conducted in our unit from 10 November to 14 November 2003 by the specialists of the Vinnitsa medical center of the Armed Forces of Ukraine the medics disclosed that private Vladimir Bugaytsov (from the village of Petropavlivka, the Kupiansk district of the Kharkov oblast) had the consequences of craniocerebral trauma in the form of psychical-emotional instability. From 17 November 2003 to 14 January 2004 private Bugaytsov underwent the stationary medical examination in the main clinical military hospital of Kyiv, where he was acknowledged to be not able-bodied. On 15 January 2004 he was dismissed from the army because of the disease with the diagnosis: “Consequences of the closed craniocerebral trauma in the form of stable evident astheno-neurotic and emotional-volitional disorders of the mild degree, and the vegetovascular dystonia of insignificant degree”. The disease was not connected with the army service. That means that the work of the medical commission of the Kharkov oblast military commissariat was unsatisfactory.

Moreover, there are some drawbacks in the completion of personal records of recruits:

-  information about the families of recruits is absent, as well as the cards of professional-psychological examination;

-  lack of characteristics from the last place of employment or education, references about criminal records and references about the tax identification number is observed”.

Unfortunately, all these drawbacks are disclosed only during the army service.

The Kupiansk district military commissariat (DMC) of the Kharkov oblast had also enlisted Vitaliy Bystritskiy, who was dismissed by medical commission of the military unit А3306 with the diagnosis “consequences of early organic lesion of cerebral brain with stable emotional-volitional disorders” (information from the letter of commander of military unit А2467).

Whether there is not enough medical establishments or competent doctors in Kharkov, who would make such scandalous cases impossible! This is the second case (known to us) during the last year, when a youth is mobilized to the army less than six months after a craniocerebral trauma. One of these cases resulted in invalidity and criminal responsibility. As to the second case, it seems that nobody and never examined the boy.

From the letter of the acting head of the Institute of tank troops: “On the basis of certificate about illness No. 3/7030 of 5 January 2004 issued by the medical commission of military unit А-3306 (Kharkov military hospital) private Yuri Kruchina was dismissed from the Armed Forces of Ukraine with the diagnosis “Stomach ulcer, cicatrized acute ulcer of duodenum bulb”. The soldier had been recruited in November 2003 by the Zolochev district military commissariat of the Kharkov oblast”.

Commander of military unit А-2160 communicates in his letter the data about 7 persons with the high level of neuro-psychical instability. He also writes about privates Levchenko (enlisted by the Dvorichanskiy DMC) and Nesterenko (Moskovskiy DMC), who “were recognized as ineligible for education in the educational center because of their moral and business qualities and psychological characteristics, and were directed for further service to other units of the Southern operative commandment”.

A great anxiousness is aroused by the fact of death of serviceman O. Tereshchenko. By the information of the commander of the military unit A3351, “On 21 January 2004, about 18:00, private Oleksandr Tereshchenko (recruited on 7 November 2003 by the Izium military commissariat) turned to the medical unit of military unit A3351 with high temperature (39.5 C). He was taken to stationary with the diagnosis “acute respiratory disease”. On 22 January 2004, about 5:30 a.m., he went to lavatory and fainted. He got the first medical aid and was directed to the military hospital of the Chernigiv garrison, where he died on 22 January about 9 a.m. The reason of the death was: “Acute respiratory disease in the form of hemorrhagic tracheobronchitis and double hemorrhagic pneumonia aggravated with the acute suprarenal insufficiency, DVS- syndrome and acute pulmonary and cardiac insufficiency”. A criminal case was started after the fact of death of private O. Tereshchenko.”

We contacted with representatives of military prosecutor’s office of Chernigiv, but got the response that the case was not completed yet, and the investigation was carried out (since January!). However, the fact of the death during one day is worrying.

In all our reports on the quality of recruiting campaigns we express the opinion that medical treatment of servicemen in hospitals is much more expensive than examination and treatment in civil medical establishments. That youths go to army only for military training. That medical commissions must be responsible for the quality of recruiting campaigns. That recruiting campaigns must be conducted in compliance with the Law of Ukraine “On military service”.

Alas, the reality is absolutely different.

***

“Prava ludyny” commentary. We published here the report of the Kharkov oblast union of soldiers’ mothers on the results of monitoring of quality of the autumn recruiting campaign-2003.

In our opinion, the conclusion about the improvement of the quality of recruiting campaign in the Kharkov oblast is not final. The monitoring of the situation must be continued after the same methodic in order to make sure of this.

There is also a worrying fact that the complaints, which we received after this recruiting campaign, are systematic, but not accidental. The cases of recruiting youths after the craniocerebral trauma, with stomach ulcer or with erosive gastritis are not rare. In spite of the fact that these diseases are included to the corresponding articles of Order No. 2 (207) of the Ministry of Defense, these articles are frequently ignored by medical commissions, which realize the medical examination.

Besides, we want to turn the attention of our readers to the complaints of commanders about the badly made personal records of the recruits. This is not fault-finding, but a very acute problem, since the incomplete information in personal records often results in enlistment of seriously ill recruits.

We already wrote about the mobilization in 2002 of a boy with enuresis. There was no information in his personal record that he had finished 9 grades of a special boarding school for chronic psychical patients and had a psychiatric diagnosis. The youth threatened with suicide, and it is not known, how this story would end in the military unit, where he served, if the KhUSM would not interfere and get the medical documents from the school and psychiatric hospital.

The incomplete personal records of recruits, and later soldiers, results in the situation, when the youths are taken to the army, who have behavioral disorders, criminal records, are registered in narcological and psychiatric dispensaries. The consequences of underestimation of social and family conditions of recruits may be very serious too. So, all persons, who have the connection with compilation and study of personal records of recruits, must pay more attention to these documents.

The sudden and incomprehensible death of pneumonia of young serviceman O. Tereshchenko also deserves special consideration.

In May 2004 the book in memory of the perished in the peaceful time during army service was published in Kharkov, and the grievous list has been already supplemented with one more name.

As it frequently happens, the investigation lasts for many months and there is no answer to the question why a young and healthy man suddenly died of pneumonia. Maybe, he was not health, when he was mobilized? And maybe nobody paid the attention to his disease at the proper time? Or maybe he had been beaten, and the hemorrhagic pneumonia was a result of the trauma?

We are waiting for the answer from investigating organs and will inform the “Prava ludyny” readers about it. Because the death of a young soldier in the peaceful time is a national tragedy, and we have no right to interpret it otherwise.

Inna Sukhorukova

On 30 June the Ministry of Justice of Ukraine registered the all-Ukrainian Association of human rights protecting organizations “Ukrainian Helsinki Union of human rights”, which had been founded by 15 human rights protecting organizations.

The Union was created on 1 April, at once after the end of the First Forum of human rights protecting organizations and became a result of the joint efforts of these organizations during the last year.

The main goal of creation and work of the Union is realization and protection of the rights and fundamental freedoms of its members by means of the promotion of practical application of the humanitarian articles of the Concluding Act of the Helsinki Council on safety and cooperation in Europe of 1975, other international documents adopted for its development and all obligations of Ukraine in the sphere of human rights and fundamental freedoms.

The Union was founded by 15 human rights protecting organizations:

1. Vinnitsa town public organization “Vinnitsa human rights protecting group”

2. All-Ukrainian Society of political prisoners and the repressed

3. Public committee for the protection of constitutional rights and freedoms of citizens (Lugansk)

4. Ecological club “EOL” (the Odessa oblast)

5. Institute of economic-social problems “Respublika” (Kyiv)

6. Congress of National Communities of Ukraine

7. Center of juridical and political research “SIM” (Lviv)

8. Town public organization “For professional aid” (the Poltava oblast)

9. Sevastopol human rights protecting group

10. Kharkov oblast union of soldiers’ mothers

11. Kharkov group for human rights protection

12. Kherson town organization of journalists “Pivden”

13. Kherson oblast organization of the Voters’ Committee of Ukraine

14. Center of research of regional policy (Sumy)

15. Chernigiv committee for the protection of Constitutional rights of citizens

The Board of the Union consists of representatives of the most known Ukrainian human rights protecting organizations. The Board is chaired by Evhen Zakharov, and Volodymir Yavorskiy is the chief executive.

Famous activists of human rights protection movement of the 60s-80s were elected to the Supervisory Board of the Union: Zinoviy Antoniuk, Mykola Gorbal, Josyp Zisels, Vasyl Lisovoy, Vasyl Ovsienko, Evhen Proniuk and Evhen Sverstiuk.

Address of the Union: 36 Olegivska St., room 309, Kyiv, 04071; tel./fax: (044) 4174118.

Secretariat of the Council of Ukrainian human rights protecting organizations

On 2 July 1937 the Political Bureau of the Central committee of the VKP(b) approved resolution No. П 51/94  “On anti-Soviet elements”, which recommended to the secretaries of the oblast, regional and republican organizations, as well as to representatives of the NKVD, to create, within five days, the “special threes” and to determine the quantity of persons, who had to be executed or exiled. The operation began on 5 August 1937 according to order No. 004487 of the NKVD of the USSR, and had to last for four months. In fact, it was stopped on 15 November 1938 after the decision of the Political Bureau of the Central committee of the VKP(b). This was the most mass in the Soviet times “purge” of the society from the categories of population, which, in the opinion of Soviet authorities, were not suitable for building of communism. During 15 months of this campaign the “special threes”, without any investigations, trials, prosecutors, advocates and, very often, even without the accused, issued 681692 death sentences. The sentences were executed immediately. The officials directly fulfilled the instruction of V. Lenin, the creator of the Soviet state: “You must be absolutely merciless. You must shoot without questions and idiotic red tape!”

Quotas for repressions of the first and second categories (1 -- death by shooting; 2 – incarceration; the proportion – 3:1) were sent to every republic, oblast and district. The executors sent the reports about overfulfillment of these quotas, the socialistic competition began for such overfulfillment, the requests were handed about the increase of the quotas, especially in the first category. So, Israil Leplevskiy, a people’s commissar of internal affairs of the UkrSSR, thrice asked for such increase, and new people’s commissar Aleksandr Uspenskiy, who was appointed to this post in January of 1938, -- twice. And Moscow satisfied these requests.

The “threes” worked with all layers of population. The repressions were applied to “kulaks”, “criminals”, “counter-revolutionaries” of various kinds, “rebels”, “churchmen”, “spies”, “Trotskyites”, “saboteurs”, “wreckers” and “bourgeois nationalists”, that is Ukrainian intelligentsia, which, according to Stalin’s words “deserved no credit”…

Certainly, the repressions concerned all peoples, which were unfortunate to live in the Russian empire with the new name “USSR”. However, the Ukrainian people suffered most of all, since Ukrainians, with their deep religiousness, love of freedom and thirst for independent life was not fit for the building of communism and had to be replaced.

In the accordance with the mentioned Resolution, the “purge” was also carried out in concentration camps. So, Eykhman, the head of the Solovki special prison, got the order to compile the list of 1825 convicts for execution. One group, 507 prisoners, was shot near Leningrad on 8 December 1937, another group, 200 convicts, -- in Solovki on 14 February 1938. The lot of 1116 persons, the so-called “Solovki transport”, became known only in 1997: on 27 October, 1, 2, 3 and 4 November 1937 captain Mikhail Matveev shot 1116 Solovki prisoners in Sandarmokh – “a usual place for executions” in the north Karelia, near the Belomorkanal channel, where about 8 thousands victims, builders of the channel, had been already buried in 150 graves.

The “Solovki transport” included representatives of intelligentsia almost all Soviet peoples, which were imprisoned in Solovki. Almost 300 “Ukrainian bourgeois nationalists” were among them: poet- neoclassic Mykola Zerov, founder of the Ukrainian theatre “Berezil” Les Kurbas, playwright Mykola Kulish, Anton, Ostap and Bogdan Krushelnitskys, writers Valaryan Pidmogylny, Pavlo Filipovich, Oleksa Vlizko, Valeryan Polishchuk, Grigoriy Epik, Myroslav Irchan, Marko Voroniy, Mykhaylo Kozoriz, Oleksa Slisarenko, Mykhaylo Yalovy, historians academic Matviy Yavorskiy, professor Sergiy Grushevskiy (a brother of Mykhaylo Grushevskiy), scientists Mykhaylo Pavlushkov, Vasyl Volkov, Petro Bovsunivskiy, Mykola Trokhimenko, founder of the Soviet hydrometeorological service Oleksiy Vangengeym (a Dutchman by origin), minister of finances of the UkrSSR Mykhaylo Poloz and others. They were people, who could create the priceless spirit values, possessing which we would rise to the level of other civilized peoples. Even mere presence of such people in a society makes it better. Yet, the shots of illiterate butcher Matveev, an executor of the orders of Russian communist power deeply inimical to us, changed the course of history…

Sandarmokh was found and identified on 1 July 1997 by the Karelia and Saint-Petersburg “Memorials”, namely, Yuri Dmitriev and Veniamin Ioffe. On 27 October 1997 the honor was paid to these murdered people for the first time. That time Larisa Krushelnitska, Ivan Drach, Mykola Litvin and priest Pavlo Bokhniak visited Sandarmokh. In two days artist Mykola Malyshko made a modest wooden cross with the words by Pluzhnik: “In memory of the murdered sons of Ukraine”. This cross was brought to Sandarmokh by Evhen Sverstiuk. Near this monument another crosses, Russian and Polish, as well as a Moslem memory sign, are already placed on a clearing, and about 150 Karelian crosses stand in the forest. A stone with the inscription “People, do not murder each other!” was mounted near the entrance to the memorial. This stone was transported to Sandarmokh from Solovki by the members of Saint-Petersburg “Memorial”.

From that time on 5 August of every year in Sandarmokh and on 7 August in Solovki the Days of memory of victims of political repressions are conducted. The descendants of the executed gather there, as well as representatives of many countries, consuls of Finland, Poland, Germany and Ukraine. In 2003 the bloc “Our Ukraine” organized the expedition of 50 persons, which visited Sandarmokh and Solovki; many young people and journalists took part in this expedition; six of these people were the descendants of the perished. I was there for five times and will go again.

This year a three-meter Cossack cross made of gray stone with the inscription “In memory of the murdered sons of Ukraine” will be erected in Sandarmokh, on the stone tumulus. Some famous faces will be seen on the cross. Authors: Nazar Bilyk and Mykola Malyshko. The monument has been ordered by the Society of Ukrainian culture “Kalina”, which is headed by Larisa Skripnikova. The address of the Society: 2 Lenina Square, Petrozavodsk, Karelia, Russian Federation, 185014. Phones: 8-10-7-814-2 – 75-75-45, 70-28-94, E-mail: [email protected].

The estimated cost of the monument, taking into account the cost of the stone, is 150 thousand hryvnas (almost 28000 USD). In spring the bloc “Our Ukraine” gave 10000 hryvnas. The work is going now and there is a hope that it would be completed till 5 August. Yet, there is no money to pay for this work.

That is why we are turning to the Ukrainian community, to all Ukrainian citizens, especially to the prosperous people in Ukraine and diasporas, to organizations, enterprises, establishments and collectives with the entreaty to make donations to the following accounts:

For the donations in hryvnas or Russian rubles: