Human Rights Manifesto: Civil Society against Lawlessness
The following Manifesto was endorsed by participants of the Fifth Forum of Ukrainian Human Rights Organizations.
We, the participants in the Fifth Forum of Ukrainian Human Rights Organizations must with concern note that the level of disregard for human rights and freedoms by the authorities in Ukraine is steadily increasing and taking on worrying signs of a deliberate policy of exerting pressure on the public to serve the interests of certain political and oligarch circles.
Violations of civil rights and liberties have become systemic in Ukraine with this being seen in the overt use of the law enforcement agencies in persecuting people criticizing the government’s actions, in the numerous violations of civil liberties, first and foremost, freedom of peaceful assembly and free expression of views; in the fostering of a corrupt judicial system aimed not at defending human rights, but at serving officials and big business; in the intentions of those wielding power, using anti-social laws, to destroy economic competition, crush small and middle-level business, establish neo-feudal relations between employers and employees; in the attempts of the government to remove civil society from taking part in State governance.
We do not have the right and will not silently observe the domination of irresponsibility before the law in Ukraine. Such a state of affairs presents a real threat to each citizen, to society and the State as a whole.
We are carrying out our civic duty and openly pointing out the indicators of Ukraine’s transformation into a place of lawlessness. We demand that the authorities unwaveringly comply with the laws and engage in constructive dialogue with society.
1. Violation of economic and social rights
The main reason for the violation of economic and social rights in Ukraine is the usurpation by major capital of the right of ownership of the people to national wealth. According to Article 13 of the Constitution, natural resources are the property of the people and therefore rent from utilization of such resources should be paid into the State coffers. Instead it is being appropriated by private individuals. Effectively all the millions and billion parts of Ukraine’s riches have only one source – the direct or indirect appropriation of economic rent.
In practical terms the appropriation of national wealth is being carried out either by seizure and corruption, or through creating vertically integrated companies of oligarchs according to a technological chain, for example, coal – coke – metal – export of first redistribution for minimum value. Then abroad hire – specialized production with high added value (in Poland and Romania) at their own factories – sale on the world markets and the profit into offshore accounts.
The other side of this privileged set up for fairytale-like enrichment of the nouveau riche is as follows. All the dirty production is here, in Ukraine. Unequal exchange between the links in one of the above-mentioned chains sucks up the profits like a vacuum cleaner into offshore companies, as a result of which working areas turn into industrial ghettos, the budgets at all levels are exhausted, and the level of exploitation of labour is the highest among countries of the area. Wages and pensions cannot keep up with the increase in prices and the standard of living is falling ever lower. The black holes in the budget are eliminated at the expense of scientific, education, medical and cultural institutions.
This shameless plundering of workers does not bother either State bodies, or the “official” trade unions – the “school of opportunism”. On the contrary, this over-exploitation is cynically explained away as being due to a lack of money with the claim that they will calculate wages or pay pensions “as is needed”, with wage and pension arrears increasing, this leading to social tension.
Attempts by workers to defend their rights by creating independent trade unions are stopped by the owners as harshly as they can, with such workers being dismissed for trumped-up reasons.
The economy of the country which has had its life blood sucked out by the oligarch regime has no money to renew the main production sources – enterprises are becoming run down and bankrupted while the internal market is glutted with imported goods. Unemployment is on the rise, and the government employment policy of little effect.
Qualified specialists are unable to create their own businesses and go to other countries in search of work. Those business owners who represent the most healthy and active part of society are bankrupted and stopped as a result of repressive tax policy. One of the reasons why the heads of major, in particular, “budget creating” enterprises can restrict the rights of their employees is specifically the restricted opportunities for their subordinates to move into the small business sector and work independently from those in the authorities who provide “protection”. Small business is an important component of the national economy, in its significance at least equal to the State sector and large enterprises. For it to function normally this sector probably needs minimization of State intervention, but there needs to be effective anti-monopoly legislation.
In such conditions local budgets and the State Budget are not providing the legally established social guarantees and social standards, while the communal housing and services economy is simply moribund and hanging on only by charging excessive tariffs and through unlawful expropriation. The very institution of local self-government has everywhere degenerated into an institution of self-rule, this being symbolized by “deriban” where land or communal property is basically seized through corrupt schemes. This is possible because Article 60 of the Law on Local Self-Government gives the local councils the power to own, use and dispose of communal property without this being coordinated with the community.
The State has no money for health care. The constitutional guarantees regarding effective medical services available for all citizens, free medical care remain words. It is for this reason also that the mortality rate in Ukraine is the highest in all Europe. Effective diagnostic services are not available and nor is the necessary treatment at the early stages of illness. The majority of the population do not have enough money to renew and maintain their health.
We would draw the authorities’ attention to the extremely unsatisfactory state of institutions for orphans, people with physical disabilities, as well as psychiatric institutions which are closed to the public resulting in serious violations of human rights taking place there.
The quality of education is catastrophically low. Young people do not see a connection between their education and their life prospects. This leads to demoralization, social apathy, a hedonistic now-oriented style of living among whole generations. Statistics show that around 50% of young people would like to leave Ukraine for good. This is a verdict over the present political and economic model in Ukraine.
The agricultural sector of the country, Ukrainian villages suffer most from such policy of reforms which do not envisage the villagers themselves as being part of the reforms. The “reform” of the formal collective farms was carried out supposedly in the interests of “efficient owners”. Yet the majority of villagers were superfluous in the new system of economic management. The historic chance to transform ineffective kolkhoz property into the property of cooperatives, involving the villagers with their allocated shares of property and land, the chance to develop a new system of ownership in rural Ukraine was lost. Huge areas of real estate of collective economic structures were simply plundered. The allocated shares were bought up for a pittance and lease of land carried out before the State acts of land plot ownership were formalized. At present the villages with such an act in their possession are only the nominal owners of their land shares, since they don’t know where its boundaries are, they don’t have control over its use and totally depend on the will of those leasing it. This new situation has led to the disintegration of the rural infrastructure because the village as a social and cultural unit is of no interest to the leasers. The prospect of land being bought from villagers who are not the fully-fledged owners of their land plots carry the danger of their yet again being robbed.
The anti-law and antisocial practice of State institutions with regard to Ukrainian citizens is a result of the shocking divide between the wealth of a small number of families who control the resources and wield power in Ukraine and the poverty of the country’s population. The merging of those in power and business interests is the main reason why the State has effectively already lost the possibility of carrying out democratic social policy. While there are offshore setups in Ukraine for diverting capital, one can forget about social policy.
Under such conditions, the reforms presently proposed by the government, for example those to pensions, labour legislation and housing reforms are based on a flawed ideology of market fundamentalism for which people who work are a function, commodity, and pensioners and children – an undesirable article of expenditure in the State Budget.
The most important requirement of the times and prerequisite for any reform is to separate the authorities from capital. Any privileges for particular social groups (regarding pensions, taxes, subsidies and benefits for enterprises of oligarchs, etc) should be considered a violation of Article 24 of the Constitution.
The situation is such that the centralization of power which has taken place over the last year can have only one justification and historic sense: the government will begin reforms of the fundamental institutions of property, work, exchange of information in order to change the political and economic structure. That means that all the productive property of the country needs to be legalized and registered in a single open register. People’s enterprises need to be created on the basis of communal property, and employees’ part in the property and profits of the companies needs to be ensured. A progressive tax rate should be introduced and tax on wealth. There need to be reforms to the archaic feudal-Soviet system management by government bodies of resources. A free information realm needs to be ensured for which the main function is to be the nerve system of society and not a means of manipulating public opinion.
Without economic democracy political democracy is a fiction.
Without such fundamental reforms it is senseless to “fight corruption” and the shadow economy. Without such reforms the free sale of land declared will only be destroyed by the inhumane regime of oligarch power, the centralization of power will degenerate into despotism and Ukraine will lose and for a long time its historic chance to become a developed democratic country.
2. Violation of civil rights and political freedoms
We would draw attention to serious violations of fundamental rights and freedoms. Freedom of peaceful assembly under the current regime has been infringed more than over the five previous years put together. Criminal and administrative proceedings have been initiated against those involved in such gatherings with the clear aim of intimidating them and forcing them to stop taking part in protests. Freedom of speech on television has been eliminated or, in the best instance, seriously restricted on the national television channels while the First National Channel (which is state-owned – translator) has become like central television under Brezhnev. It is only on the Internet and some printed outlets that there remains the possibility of expressing oneself freely, yet how many Ukrainians have access to these? No more than 15% In some cases involving unusual expression of views the authorities have begun responding with criminal prosecutions as seen in the case against artist Volodarsky, over the daubing with paint of the monument to Dzherzynsky, the beheading of the bust of Stalin and frying of eggs on the Eternal Flame.
We are forced to point out that the increase and intensification of political prosecutions is a highly dangerous development and demonstrates that the authorities are afraid of political opposition. Political prosecutions carry the danger not only of further violations of various human rights, but also the final destruction of the foundations of a law-based system, the consolidation of abuse of the law as a widespread and systemic phenomenon.
Freedom of information is violated even more than previously despite the adoption of the Law on Access to Public Information. This was seriously trimmed and furthermore it is clear that the authorities do not want to abide by it, and conceal information about their activities just as before. There are, moreover, a lot of clashes between this law and the new version of the Laws on Information and on Personal Data Protection. In breach of the latter and of the Constitution the State authorities are continuing to collect personal information. In general the right to privacy is flagrantly violated in all its aspects. Violations have also appeared of the right to freedom of conscience and religion. The Ukrainian Orthodox Church under the Moscow Patriarchate is becoming more and more a privileged Church receiving political and property advantages at the expense of other confessions, for example, State or municipal property constituting historic, cultural or natural monuments.
The right to a fair trial is constantly and flagrantly violated, including through not ensuring access to legal aid. The presumption of innocence, it would seem, is mentioned these days only at lectures in institutes and never during court trials. In general the possibilities for defending human rights through the courts have diminished considerably. Judges are now entirely dependent on the ruling party. The High Council of Justice and other bodies responsible for ensuring the administering of justice are under the political control of the Party of the Regions and therefore there is no question of their impartiality in assessing cases where judges are alleged to have breached their vow. There remains an inquisitorial, and not adversarial, procedure for holding judges to answer in which a member of the High Council of Justice or the High Qualifying Commission of Judges is at once the investigator, prosecutor and judge with respect to another judge. The Supreme Court in breach of Article 125 of the Constitution was stripped of its status as the highest court body in the system of courts of general jurisdiction and effective possibilities for standardizing practice of these courts though the removal of the right to issue a final judgement in the case and retains the possibility of reviewing court rulings in the case of divergent application only of norms of material, not procedural law.
Miscarriages of justice and court rulings not based on law have become widespread and systematic. The interests of the public are violated through it being made possible to have a court examination into a case with the participation of a person who was not informed of the hearing, for example through the fault of the post office. There has been a serious reduction in the timeframes for submitting appeals or cassation appeals against court rulings, in some categories of cases – 20, 15 or even 5 days. Citizens have been deprived of the right to ask for a judge’s withdrawal if the circumstances prompting this became known after examination of the case had commenced.
With the adoption of the Law on the Judicial System and Status of Judges, the public received rapid, but unfair justice from dependent judges. In order to ensure just court proceedings and real independence of judges this law must be reviewed. We demand that mechanisms be introduced for ensuring both the independence and the responsibility of judges. We also consider it vital to final introduce a jury system and magistrate courts.
3. Violations of human rights and freedom by the law enforcement agencies
Beating and torture, deaths in police custody, suicide by detainees in places of confinement have steadily become common events in Ukraine, one of the unpleasant, but already inseparable elements of our existence.
According to information at our disposal in 2011 there have already been 24 deaths due to the criminal actions or inaction of police officers. Of these 10 committed suicide. That is a clear indicator that the law enforcement bodies in Ukraine have effectively reached a point of no-return, the border which once crossed means that the people will already be unable to return to principles of humanity and themselves put an end to the brutality in their ranks. For the police we are all merely figures for assessing their activities, dry numbers for statistical results and upbeat reports to the management about an improvement in the crime situation in the country.
The State has introduced legislation making it possible for the police to temporarily restrict human rights and freedoms – to use weapons, detain and restrict people’s freedom, go into flats and carry out searches of people homes, tap telephone conversations etc. Rather than a mechanism for protecting Ukrainians’ interests from the criminal milieu, such actions are steadily turning into a pitiless machine of repression and our destruction.
We would stress that unwarranted violence, indifference to citizens’ rights and freedoms by an armed body of power compromises this regime, destroys our trust in it, crushes the seeds of democracy in Ukraine and is becoming one of the threats to the stability and existence of the country.
Unofficially encouraged by politicians, Ukraine’s police have taken upon themselves the role of an instrument of repression aimed mainly at ensuring docile enforcement by the public of the political will of the country’s leaders. This is demonstrated by numerous cases where the law enforcement bodies have obstruction the enjoyment by members of the public of their right to peaceful assembly; have used excessive force to stop such gatherings and have consistently persecuted those taking part in protests.
We assert that at the present day there is absolutely no public control over the activities of Ukraine’s police force as a State institution. This is evidenced by the dissolution of the Human Rights Public Councils under departments of the Ministry of Internal Affairs [MIA in the regions and the cessation of the work of the mobile groups where members of the public helped check that human rights were being observed in police stations and special police institutions. Hypocritically declaring in public their readiness for change and slogans like “The Police are with the People”, the MIA has become totally closed to members of the public, a structure with its own departmental interests and values which radically differ from the interests of the public. The MIA management constantly reiterates that the police are defending the rights and interests of society, yet they stubbornly fail to understand that in such a situation they cannot be free of control from this society and must report on and answer for their actions. They also fail to understand that they must not flagrantly violate the rights of MIA staff who are being turned into silent cogs in the wheel.
Ukraine has yet to fulfil its obligations to the world community by creating a national preventive measure against torture as set out in the Optional Protocol to the UN Convention against Torture which was ratified by Ukraine back in July 2006.
Police impunity generates lawlessness in the police system yet the government are ignoring numerous recommendations from human rights organizations on legislating the beginning of a mechanism for independent and effective examination of complaints of torture and ill-treatment by the police with the mandatory involvement of human rights workers and civic specialists, with this effectively encouraging police officers to commit human rights violations yet again.
For a long time there has been no consideration of the new draft Criminal Procedure Code drawn up back in December 2009, as well as the Concept Framework for Reforming the System of Criminal Justice, adopted by Presidential Decree No. 311/2008 from 8 April 2008.
The Police remain a body of power where, with the tacit consent of the MIA leadership, xenophobia is rampant and there are cases of discrimination against members of certain groups in society. Unlawful fingerprint-taking of citizens according to a selective principle based on their belonging to a particular group, interception of private information from their mobile phones, unwarranted checks of vehicles and searches of people’s homes have become the norm in Ukraine.
We would point out to the authorities the unwarrantedly brutal and unconcealed non-legal basis of the actions of the police in relation to foreign immigrants. This is the unlawful detention of foreign nationals, taking them to police stations on the pretext of it being necessary to check their documents, bringing of administrative charges on trumped up grounds and the legally questionable expulsion from the country. In order to give the European community the impression that Ukraine is actively fighting illegal immigration and to confirm this through figures, wide-scale harassment of foreign nationals is taking place throughout the country. The switch in the concept of fighting illegal migration with that of fighting foreign nations can be seen by the MIA’s own statistics. In the vast majority of cases, detained migrants are citizens of CIS countries who do not present a danger for the migration situation in EU countries.
We would stress that the public do not wish to see the police as enemies and our criticism is not an attempt to discredit the law enforcement body and denigrate the professional and personal dignity of its staff. Our aim is to stop the scourge of violence and arbitrary will which are swiftly spreading and corroding the police force from within and to finally achieve a civilized and democratic level of relations between the public and the law enforcement bodies. We believe that this is impossible with changes to the MIA management and demand the dismissal of the Minister Anatoly Mohylyov.
The President and Government must finally understand that the time has come to move from declaring the need to defend the rights and freedoms of each individual to specific action on eliminating lawlessness in the law enforcement bodies.
While noting that the general principle of equality of all citizens is enshrined in the Constitution, we would point out problems with its practical implementation in the life of society. Discrimination of various groups is widespread with this being confirmed by sociological monitoring and expert studies.
The principle stipulated at Constitution level is also reflected in branch level legislation. Yet there is a problem in the lack of a definition of discrimination and effective mechanisms for implementing the principle of equality. There are no anti-discrimination provisions in current normative legal acts which would prevent discrimination in various areas of public life, such as employment, education, medical care, provision of accommodation, access to public and social services, the exercise of human rights and fundamental freedoms, contractual relations between individuals, individuals and legal entities, etc. Nor those which would establish effective mechanisms and the duties of state bodies on countering discrimination and investigating cases where there has been an infringement of people’s equal rights.
We would note that a definition of discrimination in domestic legislation is given only to discrimination on the basis of certain features, for example in the Law on Equal Opportunities for Women and Men and the Law on the Social Protection of the Disabled. Yet they also fail to provide a clear definition which encompasses all possible manifestations and types of discrimination on those grounds.
0n the other hand, international documents which Ukraine has ratified – the Convention on the Liquidation of all Forms of Racial Discrimination; the Convention on the Liquidation of All Forms of Discrimination against Women; the Convention on the Rights of the Disabled and others – contain the necessary definitions and anti-discrimination norms. They are a part of domestic legislation and should be applied. Yet State bodies do not in practice use these.
Flawed legislation, the lack of State policy directed at countering discrimination, the lack of understanding of the very concept “discrimination” and fixed stereotypes in society with regard to various groups lead to the spread not only of direct or indirect discrimination, but also other phenomena such as victimization, harassment, multiple discrimination and others. We would stress the need to define in law a general concept of discrimination, its forms and manifestations on different grounds, and create a State body answering for anti-discrimination policy, providing it with the appropriate competence in fulfilling this aim. This body must also be capable of carrying out independent monitoring of cases of discrimination and providing recommendations on countering discrimination to other bodies of power. It is also important to introduce administrative liability for discrimination and to clarify the wording regarding the elements of hate crimes.
Bearing in mind that manifestations of discrimination are also the result of stereotypes existing within society, as well as of the fact that a considerable percentage of the public lack even basic knowledge in the area of human rights, we believe it vital that the State promotes an increase in the level of awareness in the human rights sphere and development of tolerance to social and cultural diversity.
We would stress that the constitutional principle of equality of citizens can be fully implemented only through introducing well-thought-out normative legal, organization-legal and educational measures on overcoming discrimination.
5. Violations of environmental rights
The Forum participants note that a sizeable part of Ukraine’s territory is in a critical environmental state. The main reasons for the deepening environmental crisis must be seen in the progressive “de-environmentalizing” of policy and public awareness in general. The lack of systemic State environmental policy is resulting in large-scale violations of citizens’ environmental rights.
There countless such violations in Ukraine. The authorities more and more frequently demonstrate their ability to encourage owners of enterprises to take responsible actions on the principle that the polluter pays. As a result we see the billions in profits to oligarchs obtained through excessive exploitation of natural resources resulting for Ukraine in huge amounts of emissions, pollution and exhaustion of the environment. Restrictions on the right of citizens to enjoyment of natural resources which have, counter to the public interest, been handed over for private use have taken on unprecedented proportions. So too have the destruction of city green zones; the seizure of nature reserve land; unlawful development of land and the water fund, for example, the sea coast, as well as the removal of the public from the process of decision-making.
Concern is firstly aroused by the large-scale infringements of Article 13 of the Constitution according to which land and other national resources are the property of the Ukrainian people. In practice the real owners of national wealth, citizens, are seeing it removed from them. Not for the first year in Ukraine are we seeing the plundering of lands – the main national wealth “which is under the particular protection of the State”. A transparent process for the sale of land in inhabited areas by auction has year in, year out been stalled. As a result land plots are sold to “their people” at artificially low prices, “allocated” free of charge while their real market price ends up in officials’ pockets. Despite moratoriums on the sale of agricultural land, while politicians make waffling noises, one sees full-scale shadow privatization of reserve land by individuals who usually have nothing to do with the village. The relevant instructions from State Administrations are passed without the public being properly informed, and without agreeing them with the local community.
We are disturbed by signs that territorial communities are being prevented from having at their disposal virtually all natural resources. In this sense there are grounds for asserting that there is a violation of Article 7 of the Constitution regarding the guarantees of local self-government. After all, if the material basis for self-government lies in natural resources then the removal of this basis will inevitably lead to the destruction of self-governing communities in Ukraine.
In their turn the State as largest owner has not developed the practice of effective management of natural resources: reservoirs, mineral resources, forest land, water and nature reserve funds. For example, artificial water reservoirs are usually let out to private owners. The procedure for such transfers is unclear and lacking in transparency. Furthermore, restriction of the right to members of the public to general use of the water is stipulated not by law, but by lease agreements, and in the majority of cases this right is cancelled altogether.
Ukraine which 25 years ago suffered from an unprecedented manmade disaster has still not made the appropriate conclusions from the Chernobyl and Fukushima nuclear power plant accidents. The Government is stubbornly refusing to review the Energy Strategy which envisages the building of 22 nuclear reactors.
The clumsy imitation of public discussion of plans for the development of nuclear energy is in sharp contrast to the steps taken by European governments aimed at real support for the principle of safety in the energy field.
We are convinced that the issue of environmental protection and sustainable development should be viewed as one of the main priorities for Ukraine’s eurointegration. After all the requirements for joining the EU envisage not only declarations about developing a strategy for sustainable development, , but actually implementing it.
Instead the President’s Programme of Economic Reform for 2010-2014 is based largely on achieving economic objectives, leaving to an equal extent social and natural factors, as well as human rights, on the sideline.
It is not surprising therefore that Ukraine has been officially named one of the two countries, together with Turkmenistan, which systematically infringes the provisions of the Aarhus Convention which sets high standards for environmental democracy.
The Forum participants call on the government to radically change the situation as regards observance of environmental rights. In accordance with the Aarhus Convention, all key decisions on issues of State environmental policy and on the use of natural resources must take into consideration the position of the public.
For this reason the provisions of the recently passed Law on Regulation of Urban Construction must be reviewed. This Law violates citizens’ rights, restricts the powers of bodies of local self-government and renders meaningless the role of the environmental impact assessments in the process of planning and development of inhabited areas.
We also believe it necessary to hold a nationwide referendum on the issues of the development of nuclear energy and the introduction of a market of agricultural land.
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We turn to all those Ukrainians who care about their future and invite them to endorse our MANIFESTO. We believe in each person’s consciousness, that their sense of personal dignity cannot be broken down and in their will to defend themselves against violence and humiliation. We are not a political party, we have no interest in the intrigues of politicians and interests of oligarchs, but we will be in opposition to any regime which increases the lack of rights of the people.
We turn to Ukrainian human rights and civic organizations – the time has come for unity. At present Ukraine is facing not only an economic and political crisis, but also a legal one. The present regime has set itself on track for open confrontation with the human rights community, viewing criticism from civic organizations as an attempt to destabilize the situation in the country, using financial assistance from abroad. Such absolutely unsubstantiated accusations have become the basis for harassment of particular human rights workers and resulted in the curtailing of cooperation between State institutions and the public. Of particular concern is the fact that pro-regime Deputies openly express their intention to implement these dangerous trends at the level of legislation, restrict the independence of civil organizations and place them in the service of the ruling political force.
We can have and express different points of view over individual events in our country, however we have no fundamental differences with regard to the main thing: such actions by the regime are unacceptable and pose a threat to democracy in the country. No regime will single-handedly save as from the legal chaos dominant in Ukraine, only we ourselves, free in our rights and freedoms, capable of defending ourselves.
Success in defence is dependent solely on our ability to unite and our determination. Life yet again faces each one of us with a choice: be silent and endure or fight and win.
Understanding the need for such unity, we announce that we are developing closer cooperation between human rights organizations, including in order to defend our colleagues from harassment connected with their civic activities.
We turn to journalists and call on them to not stand aside but to support the human rights groups’ MANIFESTO and to circulate it. We remember Georgy Gongadze and your other colleagues who suffered because of their commitment to their profession. Overcome censorship, after all your role in defending civil rights and freedoms is the most effective and useful for society. It is your views that those in power pay heed to. We hope for your help and have confidence in your sense of social responsibility, moral principles and desire for justice.
We turn to international figures and our colleagues abroad – we need your support since Ukraine’s relations with other countries on the basis of partnership, stability and mutual trust are impossible without democratic changes and unwavering observance by Ukraine of the rights and freedoms of each individual.
We turn to those politicians, deputies and officials in Ukraine who do not view the power and the authority received from the people as a means for personal enrichment and protection of their own interests. We still hope for your understanding that the rights and freedoms of the average citizen must be higher than any interests of the regime. We would draw your attention to violations of human rights and fundamental freedoms in Ukraine and await your active role in eradicating this shameful situation. This will be your test of human decency and commitment to your country.
The Manifesto was supported by all 121 participants in the Forum