V. Yavorsky: Repression must be countered now before it’s too late
Yulia Abubok from the Internet publication OstroV speaks with the Executive Director of the Ukrainian Helsinki Human Rights Union, Volodymyr Yavorsky on the recently created Public Committee against Political Persecution, the reasons why it is needed and other worrying trends in Ukraine.
Details about the Public Committee against Political Persecution [the Committee], its aims and activities, can be found here http://www.khpg.org/en/index.php?id=1312451015
How warranted is the creation in Ukraine of a Committee against Political Persecution?
We can see at least 20 political cases which are being very actively developed. I consider that 20 for a democracy is too many. That is already taking on a systemic form, especially when these cases involve civic activists and politicians.
This must be countered now when the first wave of imprisonments is taking place since the second wave will already not have the necessary public impact. The experience of other countries shows that you need to stop the first wave or it’s too late.
You mentioned recently that since June there has again, after a temporary break caused by criticism from the public in Ukraine and abroad, been an increase in activity from the SBU [Security Service]. What is this seen in?
In constant meetings with activists. This is sometimes reasonably harmless, they simply ask them what they’re planning to do, how and why. But sometimes it takes on a different form. They say: “Perhaps you should give it up? You’re quite young, why do you need that? After all don’t you want to continue studying at your university?” Or they meet with the parents and ask them: “Do you know what your son is involved in?” Just imagine how people brought up in Soviet times react when they meet the Security Service and are asked about their children.
The pressure is already quite intense, though this is still, one can say, testing.
Since the beginning of this year the police have begun behaving much better. Whereas in 2010 just in the first four months we had around 300 reports of unlawful actions by the police during peaceful gatherings, now such appeals are relatively rare.
Now we have more problems with the courts.
What kind of problems?
The courts are on a large scale banning all peaceful gatherings, without any kind of justification, using obsolete Soviet legislation, for the example, the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR. According to the USSR Presidium, this was in force for three months meaning, de jure, that it has not been valid for a long time. Why the entire judiciary uses it is a mystery to me. Where our lawyers are involved, we manage to prove that it has no force.
We have an article of the Constitution which regulates questions relating to peaceful assembly. To hold a peaceful gathering you need only provide the relevant notification, and such gatherings can only be banned if there are good reasons and clear justification. There is also European Court of Human Rights case law which is a source of law in this country.
You also mentioned that the European Court has four cases for review at present concerning political persecution in Ukraine, including with regard to peaceful assembly. If the Court’s judgement is in favour of those you see as victims of political persecution, what will that do for our country?
The Court judgement will find that Ukraine has problems with peaceful assembly, that there is problematic legislation and, even worse, problematic application of legislation, and that administrative proceedings are being used against activists, i.e. they are being detained without any grounds.
This will be a fact and the government will not be able to say to the world “These are all lies, all stories from our opposition and civic organizations financed by western foundations”.
As well as other things, you are accompanying the cases of Yury Lutsenko and Yevhen Korniychuk in the European Court.
We are providing consultation to the lawyers working on those cases.
You insist that they are political.
At least the detention of Korniychuk and Lutsenko were absolutely unwarranted. This is what the cases are about in the European Court, not the criminal prosecution since this is the main problem at present.
What about the Tymoshenko case?. You have also called that political.
That case is more difficult to call political since it has several components, however there is a political component. The mass of procedural infringements shows that there has been a certain commission and the judge is clearly behaving in a biased fashion
Furthermore the charge laid is very strange, boiling down to the fact that the Prime Minister gave an instruction to buy gas not at the price that the new Prime Minister would want to buy it. Yet you can’t punish for that, there is no element of a crime there!
Misuse of power must be for some gain, only then is it a criminal offence. If it was committed out of stupidity, ignorance, short-sightedness or under the pressure of circumstances, you can’t bring criminal prosecution.
There is perhaps a rather different story with the case of the purchase of ambulances, but as far as the gas is concerned the question of the element of a crime has been put very strangely, and has not even been clearly articulated.
In the documents about the creation of the Committee there is a list of authoritative international organizations supporting its activities. Are we to understand that their position in categorizing this or that case of political persecution coincides with that of the Committee’s?
We cannot assert that. They will make their own statements. The Committee’s objective is to ensure that they send their representatives here, to study these cases in situ and then take the appropriate stand with regard to them. Sooner or later, in autumn or winter, when it gets to the verdicts, they will speak out one way or another.
How is their support reflected at the present stage?
The main problem in these cases is determining how much of a political component there is. Our partners have worked all around the world that they have enormous experience in defining who is a political prisoner or persecuted on political grounds, and who not. We are relying on their experience.
You said that there are 20 cases which can be categorized as political. What are these cases?
They’re all cases of the political opposition – at present there are 18. These are the cases of: human rights worker Dmytro Groisman from Vinnytsa; human rights activist Dementiy Bily from Kherson; the beating up of a human rights activist in Luhansk; the case of Verentsov from Lviv; in relation to members of the Tryzub organization concerning the bust of Stalin in Zaporzhya; against the person who scrambled eggs as a protest on the Eternal Flame in Kyiv, and several others.
In several cases there is also some kind of moral – ethical component. I saw the video with Dementiy Bily, he behaved inadequately.
But he was beaten, and he ended up with concussion. I don’t know whether he behaved adequately or inadequately, however the authorities’ behaviour was definitely inadequate. Whatever the case, his behaviour did not give grounds for using physical force. Two people held him while the third beat him, and now they’re accusing him of beating up the person. The criminal investigation was terminated, now they’re restarting it.
Or scrambling eggs on the Eternal Flame
That was in fact a barbaric idiotic idea. But the maximum punishment for the young women committing it was administrative arrest for a couple of days. You can’t keep them in prison for a year – they’re not criminals. Therefore we are dealing with prosecution for ones views.
What do you want to achieve through the Committee’s activities?
To put pressure on the authorities using internal and international mechanisms so that they return to a law-based realm. Politicians need to be defeated at the elections and not with the help of the law enforcement bodies.
How old are the 20 political cases you’re talking about?
It all began starting from May last year.
That means that you can unequivocally link it with the coming to power of the new regime?
And there was no political persecution before 2010 in Ukraine?
There were cases but they were isolated, and only against activists, not against politicians. There was, for example, the case of Vadim Hladchuk, a Kyiv activist who was held for three days in a SIZO [detention unit] without any court order. We are presently running that case. There was the case of a trade union activist, Bondarenko. Since he complained about violations of human rights too often, the Prosecutor’s office decided that he was mentally ill and needed forced treatment – 30 days in a psychiatric hospital. They tried to achieve that for several years, and last year a court allowed their application.
There were cases from 2005 but they were terminated quite quickly. We spoke out then, incidentally, against the detention of Boris Kolesnikov.
Now these cases are numerous.
We held off from creating this Committee for a whole year in the hope that the regime would have the commonsense to take a step back.
If you compare the present period with the presidency of Leonid Kuchma, which would win from the comparison?
The Kuchma period was harsher, for example, censorship on TV was stricter and some people simply weren’t seen on the screen at all. Then they persecuted business and the tax authorities put pressure on the media and civic organizations. Everybody was subjected to checks, under surveillance and that was on a much wider scale than now.
Now businesses don’t have to complain to the Ukrainian Helsinki Human Rights Union about pressure?
Businesses complain, but at present the pressure put on them is not politically motivated. Now there is a process of monopolization going on in various areas of the economy and there are therefore attacks on business owned by others.
However the party in power is gathering information about businessmen. For example, last year they came up with something called a “passport of the region”. They gather information about all more or less well-known people in the region, including information about who they voted for in 2004, 2006, 2007, whom they finance, what kind of business they have, what kind of media outlets, who they’re loyal to.. And all this was gathered by the President’s Administration. In this way they have all the data about who supports whom where.
The Polish newspaper Gazeta Wyborcza quite recently described an analogous situation with them where one of the biggest political parties gathered information about the media, editors and journalists – who was loyal to them, who not. That is, it’s clear that this is not entirely legal, but it turns out that this is normal party practice.
In fact this may be normal practice for a political party, but in the given instance it was carried out by a State administration. We have documents which directly shown that such instructions were sent out by the President’s Administration, then regional administrations distributed them through their channels. That is the authorities’ resources were used which is not acceptable in a democratic country.
Do businessmen often complain to you?
Reasonably seldom. Businessmen, as a rule, do not believe in legal means of defence. Politicians from different levels often approach us - we defend mayors, the heads of local councils.
They manufacture cases against them. For example, they don’t want to give out land. An example was the well-known case of Marunyak which began under the previous regime. In the Kherson region they wanted to appropriate around three hundred hectares of land by the sea and Marunyak was one of the heads of the village councils that didn’t let them do it.
They fabricated a case against him, for that matter, extremely comical. They sent a person to him as if to give a bribe and Marunyak said: “Make a donation to the Village Council”. The person made a donation and then the Prosecutor insisted that it was a bribe. This was money that the head of the Village Council wanted to use to repair the roofs of one of the village buildings. That is, there was no motive of personal gain at all.
The most comical was that these 10 thousand UAH were taken from the State Treasury and later needed to be returned. And it was impossible to return them. They needed to be used as material evidence in the case and were given to the person who had supposedly given them as a bribe for safekeeping, i.e. to a private individual and of course the ten thousand disappeared.
We spent two years defending the Head of the Village Council. Unfortunately we weren’t able to help his colleague from a village nearby because they put a lot of pressure on him. He was sentenced to five years and served one year.
Have you not tried to establish dialogue with the authorities to give them signals not via public channels, but through personal communication?
We did that constantly, and furthermore we are still trying to have such dialogue now. For example, I am a member of the National Commission for the Affirmation of Democracy under the President. We draw up draft laws, for example, we’re among the authors of the new draft Criminal Procedure Code which has been being worked on for many years.
We are in fact ready to communicate with the authorities. The question is how ready they are to listen to us. For example, the Ministry of Internal Affairs [MIA] is not ready for dialogue at all and all our efforts have failed. We are therefore forced to use other mechanisms of influence. Why do we turn to the international community? Because we can’t resolve the issues in Ukraine.
Are you pleased with the new draft Criminal Procedure Code?
About 80-90 percent. It was very good two years ago but then it was spoiled a bit. They spoiled the norms on trial by jury, incidentally. However conceptually it remains good. This is in fact a reform we have been waiting for a long time which will really bring a European system of criminal justice to Ukraine.
Is the adoption of this Code not being dragged out?
It’s being dragged out by the law enforcement bodies which are afraid of this reform because they don’t have the inner strength to adapt to it. This is because with the adoption of the new Criminal Procedure Code [CPC] they will have to prove a person’s guilt. They need to build their investigation system quite differently. Putting pressure on people becomes pointless because if a person does not confirm his confession in court, it wont’ have any force. In such conditions our police are simply not capable of working – today all their work is built around getting a confession out of a person, and the court has a formal role.
What is the problem with juries in the Code?
Their role has been minimized. We had proposed that juries would work in district courts when examining criminal cases where a person could face a sentence of over 10 years imprisonment. According to this CPC, they will be involved only in examining particularly cases and will effectively decide nothing.
You said that the police are not capable of working according to the new CPC. Will the courts cope with the tasks that it sets before them?
Not entirely because the courts at present are totally dependent on the Prosecutor, and they will find it very difficult to take a decision which is not in the latter’s favour. At present if judges take a decision in favour of the other party, the Prosecutor applies to the High Court of Justice to have those judges dismissed.
Judges need to learn to work particularly since over the last year many older judges have left the system – according to our data, around 20 percent. New judges have come, young ones with little experience.
Is this is as a consequence of the so-called judicial reform?
Yes. Most of the judges who left hurried into retirement in order to retain their previous level of pay whiel another part found themselves under such pressure that they simply couldn’t remain. I know many judges who left because of their own stand.
Did the “judicial reforms” bring any other significant changes?
The legislators did everything to prevent people taking the State to court. For example, they restricted the timeframe for filing law suits and lodging appeals. In administrative proceedings it is now impossible to demand the withdrawal of a judge if the proceedings have already begun. In the High Administrative Court they have created a so-called “Fifth Chamber” which according to procedure which is not subject to appeal examines all cases against the President, the High Council of Justice and other higher bodies of power. That means it is a kind of special court for examining cases concerning the higher bodies of power, and this is in general strange. Its decisions cannot be appeal since this is a chamber of the High Court unless the High Administrative Court should decide to pass the case for the consideration of the Supreme Court which is improbable.
One of the achievements of the “judicial reform” was presented as being that each citizen is given the possibility of complaining about a judge to the High Qualifying Commission or to the High Council of Justice. Have you made use of this possibility?
We have tried, but without any result. To all our complaints we received the answer that we must appeal against the actions of this or that judge through the courts. Not one of our complaints has been effective. This is despite the fact that the High Council of Justice, as a judges’ Gestapo, now considers cases against judges – in one year there have been more than 300 applications for dismissal due to infringement of their oath. This is a very large number in fact, more than in all the years of Independence. A deliberate purge is taking place. The role of the Prosecutor in this is very evident because three of its representatives are members of the High Council of Justice. They are extremely active with respect to specific judges.
In the High Council of Justice they say that you can appeal against the actions of a judge. Yet to resolve a problem with inaction you need nonetheless to go through the High Council? How else?
In the High Council of Justice they answer that on the part of judges there aren’t infringements that would require High Court sanctions.
As a result the public have absolutely no faith in the objectiveness of court rulings, and the courts are not a means of resolving disputes, but a way for the strong to punish or avenge themselves against the weak.
The judges virtually never acquit people, with less than one percent of all rulings being acquittals. In our practice there has only been one case where the person was acquitted. The most that a court will let itself do is to send a case back for further investigation. Incidentally there is one high-profile case involving the son of a deputy from the Party of the Regions who is accused of killing a well-known businessman. There was a verdict in the case, but it was revoked, and sent back for new investigation. At this stage the case is gradually crumbling. It’s been reclassified – it’s now virtually killing through carelessness.
Tying a man to a radiator and then drowning him is through carelessness?
Yes, that’s through carelessness. They say that at that moment he was already death. The classification was based on the fact that if you drown a man who’s tied to a radiator, that’s murder with particular cruelty. But now they’re arguing that they tied a dead man to the battery in order to hide the body.
Why do they not acquit people?
The judges don’t know how to do that because nobody teaches them, after all for that you need to master certain methods of argumentation. In the majority of cases they’re frightened because they’re very dependent on the law enforcement bodies.
Also at local level nepotism and close ties are very widespread. If the Prosecutor and judge go out together at the weekends hunting or fishing, and on work days meet in the court, then how can the judge pass a sentence against the Prosecutor? In our system if there is an acquittal, then you need to punish the Prosecutor and investigator since that means that it was a case of wrongful prosecution. This is a fundamentally wrong approach but since the system works this way a judge understands the consequences – primarily for him or herself.
A year ago the public protested against the draft law on peaceful assembly and since then it’s been put aside and nothing new has been proposed. Do you have any idea what to expect as a continuation to that story?
The National Commission for the Affirmation of Democracy under the President drew up a new, really high quality draft law and sent it to the Venice Commission for their opinion. This is expected in October and it’s therefore envisaged that from October to December the President could submit the new draft law to parliament. We will soon see whether there is the political will among those in power to push it forward.
In one of your interviews you noted that in the legislation of Western countries the right of the people to uprising and revolution is enshrined. Incidentally I understand what the problem is for the regime in peaceful gatherings. They’re petrified of a second “Maidan” [i.e. Orange Revolution – translator]. Yet where is the border where one can talk not of unlawful mass disturbances, but of just uprising as this is understood in the West?
In theory there is democratic governance and the people in such conditions can act only through peaceful means. When power is seized by a tyrant, the people have the right to overthrow him in order to hold honest elections. In order to determine the boundary between tyranny and democracy you need to start off from specific situations. For example in Belarus there is clear tyranny. The Orange Revolution can also be called a legitimate movement.
The interviewer was Yulia Abubok
11 August 2011