Public Committee against Political Persecution in Ukraine: Defining Political Persecution. Document 2
Definition of categories applying to political persecution
Following the 2010 Presidential elections the new Administration began steadily resorting to political persecution of its opponents and critics. This has been widely reported by the media; foreign and Ukrainian experts. For this reason the law and human rights communities need to establish definitions for “prisoner of conscience”, “political prisoner” and “persecution on political grounds” in today’s Ukraine. We shall base this on the experience both of Amnesty International and of the Soviet human rights movement of the 1960s to 1980s. This gave definitions which were later developed in numerous documents of the Council of Europe, OSCE and other international organizations.
Generalizing international legal practice while taking into account Ukrainian social and political reality and the experience of the Soviet and in particular Ukrainian human rights movement, Ukrainian history, and taking as a premise the categorical rejection of violence as a means for upholding ones rights and interests, for political or social protest, we propose the following definitions.
Persecution may be based on the law when criminal proceedings are initiated against a person or their rights are restricted in connection with the initiating of a criminal investigation over a crime, or coercive measures of a medical nature, including psychiatric, are used against a person without grounds; or when a person is accused of committing an administrative offence; or a person becomes the object of civil or economic legal proceedings. The persecution can be entirely unlawful. This can involve, for example, intimidation via prophylactic talks; threats of dismissal from ones job or expulsion from an academic institution; being deprived of ones work and legal income; unlawful actions by the law enforcement agencies (beating, unlawful gathering of information about a person, unlawful surveillance, detentions, searches, etc); obstruction in circulating information; being forced to join a certain political party; being forced to take part in measures of a particular political party, and so forth. These actions may be carried out both by public officials, or by private groups or individuals with the authorities tolerating such actions.
The persecution is politically motivated if the actions of the State bodies and their officials are based on a) illegitimate considerations of a socio-political nature or b) actions of the individual persecuted for defending people’s rights, freedoms and legitimate interests
We propose using the definition first presented by Sergei Kovalev, former political prisoner, human rights defender and first Russian Human Rights Ombudsperson. This considers a person a political prisoner where political motives have played a significant and clearly defined role in the criminal or administrative proceedings against them – and only such prisoners. It is of no importance whether it is specifically political causes that prompted the actions which the person is accused of as a crime or offence; what is important is only the presence of political interest of the regime in the outcome of the case. Since in the application of the law assessments and judgements beyond the framework of the law are unacceptable on principle, political motivation in court proceedings may result in procedural or material infringements such as:
elements of falsification in the charges;
unwarrantedly severe restraint measures or punishment;
wrongful sentences or rulings regarding administrative offences;
bias of the court in evaluating the evidence presented by the defence and the prosecution;
various restrictions regarding the possibility of defending oneself, including with the help of defence counsel;
arbitrariness in choice of evidence, ignoring obvious facts;
use of norms of the law irrelevant to the deed committed;
the selective (discriminatory) nature of court prosecution compared to analogous cases involving others.
We consider it unequivocally true that any political motivation must be eliminated in the sphere of justice, regardless of the gravity and consequences of the crimes.
It should be noted that besides politically motivated discrimination against those whom the regime deems to be their opponents, it sometimes resorts to persecution of its supporters or those who implement its repressive decisions. This is as a result of internal conflict or in order to mask selective repression. Such persecution is also politically motivated and equally unacceptable.
Prisoners of conscience
We propose considering as prisoners of conscience those who are deprived of their liberty on knowingly wrongful from the point of view of international standards, grounds or on unwarranted charges in connection with:
their convictions or public expression, civic or political activity of a non-violent nature which does not demand discrimination against any others;
looking for, retaining or circulating open or publicly important information;
refusing to wear a military uniform or take part in acts of violence due to religious or other convictions.
People who resort to violence or propagate violence and enmity are not considered prisoners of conscience.
For comparison, the Amnesty International definition states that a prisoner of conscience is a person deprived of his or her liberty solely for peacefully expressing their political, religious or scientific views. This definition was given at the beginning of the 1960s by the founder of Amnesty International Peter Benenson.
We would also note the definition of political prisoner given by Council of Europe: experts Stefan Trechsel, Evert Alkema and Alexander Arabadjiev:
(54). A person deprived of his or her personal liberty falls within the category of “political prisoner” :
a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;
b. if the detention has been imposed for purely political reasons without connection to any offence;
c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of;
d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,
e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities.
The onus of proof
The assumption that a person is a “political prisoner” should be confirmed prima facie by evidence, following which the State depriving a person of liberty should prove that the imprisonment is fully in compliance with the requirements of the European Convention on Human Rights as interpreted by the European Court of Human Rights according to the merits of the case; that the requirements of proportionality and non-discrimination have been observed and that deprivation of liberty was the result of a just procedural review.
Based on the above definitions, one can draw the following conclusions:
There are a fairly large number of people who have been persecuted for political motives. These are participants in protests who are being intimidated in various ways, sometimes connected with violence – small business owners, students, members of civic organizations, political parties, trade unions, etc; journalists and civic activists with whom the Ministry of Internal Affairs [MIA] or Security Service [SBU] have held prophylactic talks, or in relation to whom there has been demonstrative surveillance; staff of public sector institutions who, under threat of dismissal, have been forced to join parties, take part in rallies, etc.
In our opinion, the criminal cases initiated against the participants of the Tax Code Protest, the members of the organizations Tryzub and VO Svoboda, as well as former high-ranking officials – Yulia Tymoshenko; Yury Lutsenko and Yevhen Korniychuk – should be considered political persecution.
All of the accused in these criminal cases who were deprived of their liberty or remain in detention are political prisoners. This conclusion follows from an analysis of the rulings regarding choice of restraint measure and the circumstances of their arrest and remand in custody. The former Economy Minister Bohdan Danylyshyn who has received political asylum in the Czech Republic was a political prisoner. One can say with a great degree of certainty that political persecution is involved in the cases of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the criminal investigation.
The criminal cases against the Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman and the Vinnytsa trade union activist Andriy Bondarenko must also be considered politically motivated. The political grounds are indisputable for the reinstatement of the old criminal cases against members of the national organization UNA-UNSO regarding the events of 9 March 201 (all the accused have already served sentences aside from National Deputy Andriy Shkil) and the Head of the Secretariat of the Mejlis of the Crimean Tatar People Zayir Smerdlyaev (he is charged with taking part in mass riots and resisting the police during a rally of the Crimean Tatars on 22 June 2006).
Virtually all civic activists who received administrative sentences under Article 185 and / or 185-1 of the Code of Administrative Offences, (infringing the procedure for organizing a peaceful gathering) after holding a peaceful gathering can a priori be considered victims of political persecution. To be certain each such case should be viewed in isolation.
The list here of political persecution in no way claims to be exhaustive.