14.02.2011 | Yevhen Zakharov

Stop the political persecution!


January 2011 saw a wave of detentions, searches, interrogations of members of the organizations VO Svoboda [the Freedom Party], V.O. Tryzub and other similar organizations. At first the talk was of suspicion of having carried out the explosion of the bust of Stalin in Zaporizhya late in the evening of 31 December, however later these suspicions were discarded and there have been no reports of those responsible for the explosion being found. At the end of January 9 members of the “Tryzub” were in custody over the beheading of the same bust of Stalin on 28 December: Vasyl Labaichuk; Andriy Zanuda; Edward Andryushchenko; Roman Khmara; Pylyp Taran; Yury Ponomarenko; Vitaly Vyshnyuk; Anatoly Onufriychuk and Vasyl Abramiv.  All of them were detained between 8 and 19 January and charged under Article 296 § 2 of the Criminal Code (hooliganism carried out by a group of people). It was reported that the detainees had all their things removed and were issued instead light clothing, that they were given virtually nothing to eat and that some of them were beaten, and that the police had put obstructions in the way of them seeing lawyers. The question of a preventive measure was reviewed considerably longer than the three days set down by law. All 9 accused were remanded in custody.

On 10 January a member of the Zaporizhya branch of V.O. Svoboda, Yury Hudymenko, was detained over a criminal case reinstated by the Regional Prosecutor under the same Article 296 § 2 of the Criminal Code.  The case had been initiated in May 2010 over the daubing with paint of the monument to Felix Dzherzhynsky however was then terminated due to the lack of elements of a crime in Hudymenko’s actions. The investigator applied to the court to have Hudymenko remanded in custody, but the court did not initially agree, only extending the term of detention by 10 days. However on 20 January a ruling was nonetheless passed to remand him in the SIZO [pre-trial detention unit] for two months. Artyom Matviyenko who is also charged with daubing paint over the monument, together with Hudymenko, is under a signed undertaking not to abscond.

Several members of Tryzub have been detained and released. Another four are being held in custody. Andriy Stempytsky and Stepan Bychek are accused of unlawful possession of weapons. Ihor Zahrebelny and Artyom Tsyhanyok of setting fire to the office of the Communist Party in Zaporizhya back in 2009.

It is difficult to speak with certainly about the criminal cases mentioned at the present stage since the investigation is not completed and some of the charges are unknown. However some things can, a priori, already be considered.

In the 2001 version of Article 296 of the Criminal Code, hooliganism is “flagrant violation of public order motivated by overt disrespect for society, accompanied by particular impudence or exceptional cynicism.” Yet the accused had no intention of insulting society, expressing disrespect since the overwhelming majority of society have a negative attitude to Stalin and Dzherzhynsky as the organizers of mass murder and protested against the erection of the bust of Stalin by the Zaporizhya communists. In both cases, the motive was entirely clear – to express their attitude to Stalin and Dzherzhynsky.

Thus, these acts were merely expressions of their views. It is interesting to draw a parallel between these forms of expressing ones views to the considerably more audacious form, that of burning the national flag in protest against the politics of the regime. According to Article 65 of Ukraine’s Constitution respect for State symbols is a duty of Ukrainian citizens, while Article 338 of the Criminal Code carries a punishment for public dishonouring of the state symbols of either Ukraine or other countries. The situation in the USA is different with the standards of freedom of expression of views being considerably higher.

It became common to burn the State flag in the USA during the period of mass protests against the Vietnam War at the end of the 1960s. In 1968 a federal law was passed on respect for the American flag. Analogous laws were passed in the majority of states. These laws qualified the public burning of the national flag as dishonour and a criminal offence.

After the application of these laws, the case reached the US Supreme Court. In 1989 the Supreme Court in the case of Texas vs. Johnson judged that the burning of the flag as a form of protest is guaranteed by the First Amendment and therefore all laws which ban such actions are unconstitutional. President George Bush, who held the opposite view, suggested that the Congress pass a special federal law establishing criminal liability for disrespect of the flag. The law was passed, however the Supreme Court immediately declared it unconstitutional since it violated the right of Americans to express their views. Since that time defenders of the flag have been trying to bypass the judgment of the Supreme Court by passing new amendments to the Constitution especially devoted to defence of the flag. Over recent years at least 12 such attempts have been made, yet no amendment has been adopted.

We can also apply the European mechanisms for protecting human rights: freedom of expression is defended by Article 10 of the European Convention. The actions of those accused of hooliganism fall under that Article.  The actions of the agents of the State in response constitutes interference in exercising freedom of expression and, in accordance with Article 10, must be based on the law “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” and “be necessary in a democratic society”

We would note that the reaction of the communists and their supporters to the daubing of part on the monument to Dzherzhynsky; the erection of a bust of Stalin; the reaction to the beheading of the bust of Stalin are also ways of expressing their views. That is, in these cases, we are dealing with political discussion and actions linked with this. In accordance with European Court of Human Rights case law in the area of political discussions, “Article 10 leaves no room for restriction of freedom of expression”. The

European Court has confirmed this in connection with numerous cases involving Kurds vs. Turkey (1994-1994) – applicants Aslan, Polat, Syurek, Karatash, Bashkai, Ibrahim Aksoi, Okutan, Kyurchyu, Varhii, and many others.

In order to establish whether there has been a violation of Article 10 one needs to determine whether the interference was well-founded. That is, firstly, whether it pursued a legitimate aim. If so, then, secondly, whether the interference was proportionate to the aim pursued. And thirdly, if so, whether the interference was necessary in a democratic country (for example, whether it was an adequate reaction to an urgent public need).

In considering this, we can draw an analogy with the well-known case of Salov vs. Ukraine. Donetsk lawyer Serhiy Salov was the authorized representative of presidential candidate Oleksandr Moroz at the 1999 elections. On 30 and 32 October he distributed 8 copies of a special issue of the newspaper Holos Ukrainy [Voice of Ukraine} from 29 October which asserted that the current Presdent, Leonid Kuchma had died on 24 October. The issue was a fake. On 31 October 1999 the Kyiv District Prosecutor in Donetsk initiated a criminal investigation against Salov on a charge of obstructing the electoral rights of citizens (Article 127 § 2 of the Criminal Code). On 1 November 1999 Salov was arrested for circulating false information.  He was held in a SIZO during the investigation and court proceedings from November right up to 1 June 2000, when the preventive measure was changed from remand in custody to a signed undertaking not to abscond. On 6 July 2000 a district court found him guilty of obstructing the exercise by citizens of their electoral rights by means of deception, in order to influence the results of the presidential elections. He received a five year suspended sentence with a two-year trial period in view of the fact that Salov’s actions “did not cause actual serious consequences”. The Regional and Supreme Courts upheld this ruling. Salov applied to the European Court alleging a violation of Article 5 § 3, Article 6 § 1 and Article 10 of the European Convention. The European Court found that these violations had taken place.

In considering whether Article 10 had been violated, the Court agreed that the newspaper which Salov had circulated contained false information and found that the interference of the State had pursued a legitimate aim, that of ensuring the right of voters to truthful information during the 1999 presidential campaign. However in view of the insignificant influence which the circulation of 8 copies of the newspaper and the seriousness of the punishment imposed, the Court found the interference to have been disproportionate pursuance of the legitimate aim.  There was no consideration of whether such interference was necessary in a democratic society.

In the cases over the daubing with paint of the monument to Dzherzhynsky and beheading of the bust of Stalin, the proportionality of interference and need in a democratic society have clearly not been observed. Furthermore, the interference of the State was not based on the law since the legal qualification of the offence as hooliganism is incorrect and used in order to apply the most severe punishment possible.

We can thus confidently predict that if the members of Tryzub and VO Svoboda accused of hooliganism apply to the European Court of Human Rights, in both cases the Court will find violations by the State of Article 10. It is clear that Article 5 of the Convention which defends the right to freedom and personal security has also been violated. There are no lawful grounds for deprivation of liberty during the investigation which, according to European Court case law, would be deemed well-founded, in these cases.

However it is apparent that the daubing with paint and beheading of the bust cause damage. If the law enforcement bodies had raised the issue of compensation for the damage caused, this would have been an adequate reaction.

From this analysis it follows that the ten people accused of hooliganism over the beheading of the bust of Stalin and the daubing with paint of the monument to Dzherzhynsky are political prisoners in accordance to the definition given. Political persecution must stop! The charges of hooliganism must be dropped and those involved released from custody.

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