Address to the Ukraine – 2007 Conference in the European Parliament
Ladies and Gentlemen, I am sincerely grateful for your invitation to this conference. I must however first note two things.
I confess, first of all, to having been surprised by your invitation. My honoured Ukrainian colleagues have through their own efforts to a large extent ensured the acknowledged status in Ukraine of free European literature, free European publicist writings, and to a certain extent even free European press. I, on the other hand, by education and legend a lawyer, have certainly not ensured the rule of law and a law-based society in Ukraine. I will speak here not, in the main, about legal material, but about civic society in Ukraine and its relations with the State.
My second warning would be that in speaking about civic action, I may be subjective and biased, since I am representing a Ukrainian organization of civic action. I hope therefore that in any such case my colleagues will supplement what I say, and perhaps add their adjustments.
As far as I can understand, the European legal and state-forming tradition, its viability, even life –asserting quality is safeguarded by respect for procedure, the inviolability of this procedure. In such circumstances an alien body which finds its way into the wheel of the mechanism is either rejected or reprocessed to comply with the established legal system.
In the State of Ukraine it is all somewhat different. The system is based on a Byzantine-Muscovite understanding of power not as a means for resolving publicly important issues, but as a commodity which can be bought or sold. This system functions, not in accordance with procedure, but based on personal or clan expediency, and is highly resistant to external irritants. It either refuses to admit anything not infected by the same Byzantine elements, or fairly effectively neutralizes (denigrates) it..
Therefore, in speaking of human rights in Ukraine, one needs to understand two things.
Firstly, there is a fairly decent Constitution, as far as the section on human rights is concerned. Article 3 of this, for example, states: “Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State”.
Secondly, all of this interests the “powers that be” only in so far as using it with the appropriate rhetorical ballast can help get, retain or increase power according to the near-Marxist “Money – Power – Money” – “Power – Money – Power” … a vicious cycle.
The system is in no way interested in safeguarding human and civil rights and liberties. Or rather, it is interested precisely to the extent needed to con Europe. And if it was possible to successfully and comfortably run a “natural state” within the borders of Ukraine, the powers that be (the self-designated “elite”) would be delighted to distance themselves from Europe and forget about all those trifles and conditions.
I could therefore, undoubtedly, give you a lot of specific detail about human rights abuses in Ukraine.
Take, for example, the fact that quite recently in Penal Colony NO. 31 in Izyaslav, Khmelnytsky region, prisoners were subjected to torture and ill-treatment merely for going on hunger strike to demand better conditions and the dismissal of the head of the administration.
Or about the fact that mortality in remand centres [SIZO] in 2005 was 4.3 per thousand inmates, while in penal institutions, it was 1.9 per 1,000. Over the same period there were 473 complaints alleging unlawful acts by employees of the penal institutions. However, according to official statistics, not one complaint was deemed to be justified.
Or about the fact that the Ministry of Internal Affairs received 4,026 complaints from members of the public in 2005, alleging unlawful acts by its employees. For the first 6 months of 2006 the figure was 1,546. Only 61 officers were charged with disciplinary (not criminal) offences for unlawful acts.
Or about the fact that out of several hundred cases when we sent formal requests for information to the central authorities, the requirement set down in the Law “On information” [- to respond within a month – translator] was only complied with in one case.
Or about the fact that when I approached the court with regard to this, the same judge over a space of just two days handed down two substantively contradictory judgments in absolutely identical situations.
Or about the fact that in another Kyiv court during a hearing into a case the judges, without trying to conceal this, do crosswords.
Or about the strange understanding of the Kyiv authorities as to the right of peaceful assembly.
Or about the fact that one fine day the communal charges in the capital were tripled purely because it so suited our blessed Mayor, having pulled the figures out of the air, without any economic justification or consultation with the public.
Or about the fact that with a simple, regular, but not publicly announced, change of one digit in the account numbers for paying state duty, the State puts an obstacle in the way of exercising ones right to judicial protection.
However is it worth concentrating on isolated symptoms if the illness as a whole needs to be treated?
Can one expect effective defence of the rights of specific individuals by a state which by definition is not law-based?
A state where at the foundations of the legal system constitutional reforms (the so-called “political reform”) were introduced, having been illegitimately passed with infringements of procedure and against the wishes of the people at the presidential elections.
Where the legislative body regularly, consistently, openly, stupidly and demonstratively violates the Constitution.
Where the right of citizens, guaranteed by the Constitution, to appeal against the decisions, acts or omissions of the authorities remains on paper.
The Secretary General of the Council of Europe, Terry Davis, in commenting on the Gongadze case at the end of January said: “todays Ukraine does not appear in black and white, as before, and there are many changes in political life”. Allow me to disagree – if there have been changes, then only in two things.
Firstly, the population is learning well to differentiate between black and white, and to understand that in modern Ukrainian politics, it is very often grey that dominates.
Secondly, the level of press freedom. However, the increase in the scope of this freedom has not been accompanied by a reduction in manipulation. The public does not generally have reliable information about media owners. Transparency in this issue does not suit those in power and the oligarchs. In fact, this is true of transparency in general. Cockroaches are afraid of the light.
As far as free elections are concerned, given the widespread use of manipulative technology and the unlimited cynicism of politicians, the absence per se of significant violations of electoral legislation in no way ensures the power of the people.
Law theory has the concept “juridical constitution” and “actual constitution”. The first is the constitutional norms actually written down. The second refers to those rules which de facto regulate social relations. In Ukraine there remains a huge divide between the two. Moreover, if under Kuchma, one could speak of the existence of certain regulatory norms, albeit extra-judicial, or rather, on the contrary, half-bandit, now, with the coming to power of the so-called “Anti-Crisis Coalition”, the nature of the functioning of the state mechanism is controlled chaos. Undoubtedly the eternal question "qui prodest?" [“who benefits?”] in this context is highly topical.
If one speaks of the events of two years ago, known as the Orange Revolution, this was not a revolution in the classical sense, there was no social breakdown, dismantling of the system. One can probably also not talk of a completed revolution in public consciousness. Then the critical mass of numbers of changes in individuals consciousness gave a new quality to the change in collective consciousness, however this was rather Zen enlightenment, “Satori”, which needs to be relived again and again.
The events of the last two years ever more practically convince (although both slowly and painfully) Ukrainian society of the need to be a civic society, capably of defending itself against any encroachments on its rights and liberties, from whoever these may come. In the first place, from the State. People are coming to understand that Ukraine is our country, but an “alien” state, with none of the content it should enjoy according to the beautiful legend presented in our Constitution. “The regimes the regime – pure bandits”, as Yury Andrukhovych who is present here today said in one of his poems, without, in my view, any major exaggeration.
At the end of 2005, according to figures from the Ministry of Justice, Ukraine boasted 55,014 NGOs, of which 485 had international status, 1,774 – nationwide status. Practice demonstrates the increased ability of civic society to carry out at a professional level monitoring of the activities of the authorities and lobbying of its own interests. The best example of this was the civic campaign, unprecedented for Ukraine, in support of a civic candidate for the position of Human Rights Ombudsperson, which began with an initiative on the forum of the civic action website “Maidan”.
On 17 December the CE Human Rights Commissioner Thomas Hammerberg emphasized during an interview in Kyiv: ““Our experience shows that a Human Rights Ombudsperson works effectively only when s/he is independent, and that includes independence from political forces, because s/he has no right to represent a particular part of society”. At the beginning of January the Co-Rapporteurs of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe Ms Severinsen and Ms Volvend addressed a letter to Oleksandr Moroz on the need to appoint a politically independent Human Rights Ombudsperson. On the very next day, the ruling coalition in Soviet style responded with loud bluster directed at Europe over “flagrant violations of generally accepted principles of international law, in particular, state sovereignty and non-intervention in internal affairs”, and even managed to accuse the Co-Rapporterus of “humiliating Ukraine and its people”.
I do not agree with the intention of the ruling coalition to appoint a Human Rights Ombudsperson without any consideration of public opinion. The latter wants to see an Ombudsperson who has not been compromised by the disregard for the law and political engagement of the State Deputy from the Party of the Regions Nina Karpachova, but rather the well-known human rights defender Yevhen Zakharov. Civic society, on the initiative of the “Maidan” Alliance and the civic network OPORA, was able to achieve his official candidacy, through the support of two parliamentary factions [- only parliamentarians may put forward candidates – translator]. At the present time, around 330 civic organizations have declared their support for Yevhen Zakharov. The vote is to take place tomorrow, however regardless of the result (it is difficult to hope for any moment of enlightenment from the communists, highly specific “socialists” and “Soviet capitalists” from the Party of the Regions, but contra spem spero [hope against hope), the very fact that civic society has forced the “political realm” to take it into account, is an unequivocal victory. In addition, it is important that whoever becomes Ombudsperson, a number of civic organizations have formed a coalition to monitor the actions of the Human Rights Ombudsperson which again is unprecedented in Ukrainian society.
Furthermore, among the successes of civic society, one should also mention the growing information and coordination capabilities, primarily thanks to the development of public journalism and network structures of civic activists. One of the most successful examples of this was the creation in 2001 of the website for civic action “Maidan” and the formation around it under the banner “A free person in a free country” the most powerful civic network structure in Ukraine – the “Maidan” Alliance which I have the honour to be representing here today.
I understand that Marek Sivets, Vice President of the European Parliament, recently said: “to be honest, it is unclear who our Ukrainian partners of the EU are, whether among individuals or institutions. It is very difficult to establish dialogue”. I understand him. It is doubtless difficult to attempt dialogue with a political forces whose leader, having declared an annual income of less than 8,000 dollars, with a housewife spouse, and never having devoted a day of his life to business, is now wandering about in a coat from “Brioni” and a “Blankpen” watch. And whose colleague was recently killed in a shooting accident while poaching, with the attempts to save him involving measures which were as if from another world for ordinary Ukrainian mortals, including” beaming in” western doctors and the dubious “voluntary” nature of the giving of blood by cadets. I dont know if it is easy for Mr Sivek to hold dialogue with his supposed colleagues from the left, the Socialist Party [SPU], when the second person in the party not only decks himself out in similarly expensive clothes, but also in a most un-socialist fashion drives an Aston Martin, which cost minimum quarter of a million dollars. What is the likelihood that such political forces or those state structures which they control will, say, use European money to effectively fight corruption? It is probably also difficult to communicate with the parliamentary opposition which frequently demonstrates an incredible divide between word and deed, with its “flexibility” of strategy course and aversion to openness.
It is difficult not to agree with Hanna Severinsen and Renata Volvend who in their initial report stress that “the new Cabinet of Ministers is full of officials who epitomize the corrupt merger of business interests and the government.”
I would therefore propose resolving the problem, articulated by Mr Sivets, very simply: at least until the next elections, at least in what concerns human rights and liberties, the development of civic society, overcoming corruption, I would recommend that the EU seek Ukrainian partners not among the power institutions and political forces, but among organizations of civic society. The single true opposition to the anti-rule of law system existing in Ukraine is the civic opposition. Politicians have yet to earn the right to be called the opposition.
And it is dependent precisely on whether this civic opposition is able to create a mechanism for identifying, agreeing and efficiently lobbying the public interest, that is, a mechanism for turning the public interest into practical policy, as to whether the European Parliament will in the future have Ukrainian partners at state level.
There is no more immediate task in Ukraine than that on which we are working – the creation of a powerful machine for independent civic assessment of the work of the authorities, for appealing against decisions which run counter to the law, human rights and public interest, for the lobbying of these interests. I assure you that these are Europeans interests. ‘
Two years ago in Ukraine citizens beat the system in one particular case. Now they are learning to beat it on an everyday basis, in order to one day overcome once and for all. If the regime is a permanent conspiracy, then it is necessary to counter it with permanent resistance. It is, at the end of the day, only through the constant chase by citizens of those in power and politicians that an effective natural section takes place.
The revolution in Ukrainian lies ahead and this revolution wont be orange. It will be the struggle of the people for the return of their state. This revolution will be blue and yellow, the colours of the Ukrainian flag. And it is a pleasure to think that these are also the colours of United Europe. We are one in our freedom!