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12.12.2001

Juridical commentary of the Kharkov Group for human rights protection on the current political events in Ukraine

   

Recently political actions and events in Ukraine are characterized with unusual intensity, greater diversity and various degree of conformity with the national and international laws. The events directly and essentially concern constitutional rights and freedoms of man and citizen in Ukraine. All this makes the Kharkov Group for human rights protection (KhG, in what follows) to give its commentary.

It should be noted that the level of observance of legal norms in a society never is the same for all subjects of the constitutional (political in its essence) right. It is well known that average citizens have in the sphere of politics a wide choice of behavior patterns. The volume of their political freedom is regulated by common guarantees of the national sovereignty, by all the set of political constitutional rights and by the organic principle of the activities of all elements of the civil society: everything is permitted, which is not prohibited by law.

So, it is not surprising that the public in its political revelations may spontaneous, often not motivated, at a first glance ‘irresponsible’. Sometimes the high political activity of the masses in transitive societies is explained by the back swing of political pendulum, when the depressed during the years of totalitarianism political emotions explode with a noticeable passion and the personal coloring too. Anyway, separate individuals and their social unions act on the basis of the political freedom, universal constitutional guarantees of the realization predominantly popular and not state sovereignty.

In harmonious juridical systems quite other constitutional demands are applied to the political activity of the state and its ruling branches, organs and officers. Here the sphere of politically minded activity is also present, but it is well-structured, well-ordered and is works as formal procedures. All state subjects act not on the basis of political freedom and broad political rights, but on the basis of distinctly determined competence and rights. All that makes a right for a state is, at the same time, its duty. That is why the rights of state agents in the developed democratic countries are defined in the exhausting manner. Another substantial principle works here as well: the higher is the organ or an officer in the state hierarchy, the more limited is the range of its behavior, so, the necessary political procedures are restricted in greater details with special norms. Thus, the demands to political actions of the state and its authorities are strictly determined in legislation both in from and in meaning.

Clearly understanding all of this, the KhG is made to notice the substantial deviation of state organs and officers in Ukraine from the above-mentioned legal principles. The violation of the principle of the limited rule, separation of different powers, organizational autonomy and political neutrality of separate branches of the state power and, as a consequence, disbalance of the mechanism of mutual restrictions often happen now in Ukraine, and lately they have begun to assemble into dangerous precedents. The actions of the authorities listed below present especially significant deviations from the principles and norms of law and right, in particular the constitutions right.

Ungrounded acknowledgement in 2000 of the legitimacy of actions and decisions of the ‘parliamentary majority’, physically (geographically) separated from the Supreme Rada of Ukraine. The sitting of the ‘parliamentary majority’ was held in the ‘Ukrainian House’ under the conditions of the current crisis of the national parliamentarism, which was provoked by a number of unsuccessful attempts of reelection of the Parliament speaker. This substantially abused the universal international standards of parliament democracy, the rights of the political minority of in the Supreme Rada, which is backed by a significant proportion of Ukrainian voters. It is quite clear that the decisions adopted by the majority in the regime of the organizational could be quite different, if the parliament minority participated in the discussion.

As is well known, the principles of liberal democracy, acknowledged and described in a number of modern international juridical and political documents, mainly stress not the rights of the political majority, but the guarantees of the rights of the political minority. The sense of the modern liberalism just lies in the protection of the political minority rights. So, decisions taken under the conditions, when the political minority is forcibly devoid of the right to influence the decision of the majority, may not be quite legitimate, according with the modern ideas on political fair play. In spite of its external efficiency, the coercive (forcible) political split of the Parliament in the course of time encouraged the return to the public consciousness of the traditional totalitarian concepts not only about ‘correct’ and ‘incorrect’ deputies, but also that the truth and good in politics bring only those, who were upper dogs and won. In his time V. I. Lenin wrote proudly about the invincible force of bolsheviks. We all know very well what was the cost of this democracy simplified to the vulgarity to Slavonic peoples.

Another non-legitimate step of the official power was the recent ‘referendum after the people’s initiative’ concerning changes and additions to the Ukrainian Constitution. As is well known to practically all social-political forces of Ukraine, this initiative was people’s but formally. The uncouth results of the referendum proved the post-totalitarian syndrome in the mentality of the Ukrainian population and, at the same time, the administrative arbitrariness in the central and in the provinces. As a result, the European country got a number of decisions dubious not only from the point of view of their legitimacy and political fairness, but also doubtful as to their practical applicability. One way or another, the referendum appeared to be a project that nearly quarreled voters with their elected representatives. So it became a naive, but at the same time brutal action of the power that essentially damaged the political stability in Ukraine. Today the President of Ukraine speaks about the deficit of the well-balanced political relations on the democratic field. Yet it was his activities about the referendum, which provoked the current aggravation of the political dialogue in the country.

Unmotivated by any real public needs of the top power structures generated, it its turn, ‘the legal instrumentalism’ – the practice of manipulating the legal norms in the interests of the current moment, and sometimes merely in the interests of the Strongest. The right in Ukraine was turning from the universal rules and procedures, which are accessible and transparent to all political subjects, to an administrative club. The nihilistic practice of the power generated, in its turn, the corresponding cynicism of the official mass media. Even a mere taking of the foreign citizenship by former Prime-Minister P. Lazarenko was named a criminal act by a state TV channel, although such an action is not qualified as a crime by law. It is not surprising that after similar ‘disguising’ the Ukrainian public firmly believes that P. Lazarenko is a hardened criminal. This is understood as an axiom. Meanwhile, no court has found him guilty of committing a single crime listed in the Ukrainian Criminal Code.

Official information sources, especially the TV channel ‘YT-1’ described ‘Lazarenko’s case’ as an obvious one, that is found him guilty of the actions incriminated to him by the law-enforcing bodies. All the events around this person were officially elucidated so, as if Lazarenko was condemned in the USA for the violation of Ukrainian laws. But an action regarded as a crime in Ukraine must not be such in the USA of Switzerland. Besides, opening of the bank account in a foreign bank is regarded as a crime according to the draft of the new Criminal Code of Ukraine, whereas in, say, Latvia or in the UK such a step is regarded as an elementary right of a citizen. As is known, the great part of accusations of Lazarenko concerns his actions, which are regarded as crimes in Switzerland and, on the contrary, are not regarded as such in the USA. As to his legal state in Ukraine, Lazarenko’s position is covered by Article 62 part 1 of the Ukrainian Constitution that reads: ‘A person is regarded as non-guilty in committing a crime and may not be persecuted criminally until his guilt is proved in court and acknowledged in the court verdict’. The Ukrainian public under the propaganda pressure organized by the power forgot long ago that there was no trial of Lazarenko in any Ukrainian court.

Similar argument may refer the juridical status of former vice-Prime-Minister of Ukraine Yu. Timoshenko. Now, speaking about her, the prosecutor’s office of Ukraine permits itself to use such formulas, which, according to the operating laws, may be used only after the court indictment. So, a prosecutor’s office may not publicly affirm that someone has committed a crime. It may only suspect and accuse, since any accusation is not a verdict yet, but only an assumption. It is only a necessary base for the criminal investigation and court verdict. The latter, according to the law, may find the accused non-guilty.

Recently high officers from the prosecutor’s office of Ukraine demonstrated on TV throughout the country the schemes of financial transaction, with which Yu. Timoshenko allegedly bribed P. Lazarenko. In the process the said high officers never recollected that what they said was only an assumption of the investigation. They affirmed this quite shamelessly and categorically. Meanwhile, it is obvious even from the TV feature that the case cannot be so elementary, since a bribe, as any other crime in Ukraine, may be done only by a physical person. In this case the money was transacted by juridical persons. Besides, giving a bribe must be motivated, i.e. an activity (passivity), which serves in the favor of person giving the bribe. To prove such an accusation in the absence of Lazarenko can be done only by a Stalin’s troika. Besides, in case of Yu. Timoshenko there is a large possibility to collide with Article 62 (presumption of innocence). It is improper to prompt this to the General Prosecutor of Ukraine.

The so-named ‘cassette case’ has acquired recently very great political importance. Making account of the above-mentioned principles and behavior norms of the subjects of the right, it is necessary to acknowledge that while in the case of individuals and separate links of the civil society there may exist a large spectrum of assessments and hypotheses, in the case of state organs and officers such a freedom does not exist and may not exist. Nonetheless, some statements and opinions of state officers, in particular, from the prosecutor’s office, about the case are too hurried, and others are too slow. Besides the statements are biased and political arguments overrule juridical and technical ones. It does not encourage stability in the society, to say nothing about the transparency of the actions of the power structures, but also result in the deep public mistrust.

If the hurried investigation experiment resulted in the conclusion that it is technically impossible to eavesdrop the President’s office, and in several days it became clear that the conclusion was false, then it is reasonable to suspect that all other similar conclusions of the prosecutor’s office are also politically engaged, with the planned predetermined result. Certainly, we do not speak about the true solution of the case. Even if the prosecutor’s office made an honest mistake, and its technical experts had no necessary equipment and experience, then all the same the question arises about the measure of political responsibility of the General Prosecutor, who made public unreliable and unchecked results and ‘facts’. Just similar hurry and irresponsible attitude to the professional ethics after all destabilize society. A prosecutor, even the General one, unlike a sapper, has the right for a mistake. Yet, in a case of such great importance even one mistake can disturb the political equilibrium for half a year at least.

The prosecutor’s office stated, according to the genetic expertise, that the body from the Tarashchansk forest is that of journalist G. Gongadze (with probability 99.6%). However the prosecutor’s office has other proofs to this fact. Taken separately, they are not absolutely reliable, but in combination with other proofs, in particular with the genetic expertise, they noticeably increase the probability of the conclusion. All this is well known to professional investigators, and now it is clear even to a man in the street. Certainly, the investigators from the prosecutor’s office may have their own opinions, which may differ from the above-given. But it is noticeable that directly or indirectly their actions and words are of the sort that professionals describe as follows: no dead body means no murder.

It is quite possible that the public looks for a culprit in the wrong place. Nonetheless, all this neglect of the juridical and technical norms of the investigation, the multiplicity of different juridical roles in one person, the hurried and unproved character of opinions, which the officers from the prosecutor’s office spread about, make the hot temper of the public still hotter. In this way it is easier to come not the truth, but to the discredit of well-known political authorities. At the same time such methods increase pain and desperateness of the private persons close to the victim.

A joint statement of the President, Prime-Minister and the Speaker of the Parliament also looks rather weird in the juridical sense. And the matter is not only in its juridically dubious stock of words. In general, it is not clear, on which legal grounds the speaker I. Pliushch became an author of this statement. If he signed this document as a mere citizen, it would be not surprising. If there were a consensus or merely a political majority in the Parliament concerning the main problems of the political crisis, than Pliushch’s signature would also look proper. However, no one observes even the hints of the consensus in the Parliament. Then one may ask on which grounds the speaker signed this statement? Signing of the document my Prime-Minister V. Yushchenko also looks ill-grounded juridically. According to the Constitution he is subordinate to the President. He is an administrative, not a political Prime-Minister. This means that his signature under such documents must be not more than a visa. So, after all we observe a consolidation of top state officers not on the juridical base, but rather on a personal one. But what is the worth of such a base in a law-abiding democratic country?

Summing up, the KhG finds it necessary to warn the power structures, separate state organs and officers against the instrumental use of the right, against exceeding their authorities stipulated by law. The KhG also warns structures of one power against using the rights given by law to others. Besides the state organs and officers must bear on mind the benefit of the doubt. The KhG would like everyone to focus attention on the policy of state-owned mass media. It especially concerns the official TV-channel ‘YT-1’, that too often gives the assessments and opinions of the state representatives as confirmed facts, thus ignoring benefit of the doubt and general guarantees of human rights and freedoms.

The KhG supports exact and unflinching execution of the constitutional norms and demand of the national and international laws by the state and all its officers. A power, which uses illegal forcible methods and distortion of the truth, never achieves the strategic victory, but only compromises itself in the final count. The chance of the Ukrainian government to dodge the full political discredit is not completely lost, in our opinion. To this end, the top authorities must timely keep in check their aggressive ambitions concerning the political freedom of the civil society and act strictly within the restraints stipulated by law.

15 February 2001
The Kharkov Group for human rights protection

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