Monthly bulletin Prava Ludyny (Human rights)
The consideration of Yagoferovs complaint is suspended
As the Lugansk branch of the Voters committee anticipated, the Lugansk oblast court did not satisfy the complaint of Anatoliy Yagoferov at the decision of the town council that stopped his mayors power before the proper term.
The court decision is not based on any consideration of the essence of the matter, but on some purely procedural questions. The court ruled that Yagoferov had not indicated in his complaint which rights of him were violation by the town council. His arguments concerning the mayors rights the court refused to consider, since Yagoferov is not the proper claimant in this question. The reason given is that on the day of handing claim Yagoferov was already not the mayor: his powers were terminated by the town council, and he did not turned to court with the demand to restore him on the post. Besides, the violation of the rights of a mayor does not figure in the list of rights about which a mayor may turn to court (item 15 of Article 42 of the Law ‘About self-rule in Ukraine. Due to this the court ruled that the case must not be considered in court according to item 1, Article 227 of the Criminal-Procedural Code, and closed the case.
Anatoliy Yagoferov declared at a press conference that he would turn to the Supreme Court for the cassation of the Donetsk oblast court decision, and, if his claim were declined, he would hand the claim for his restoration at the mayors post. That was the method recommended to his by the Donetsk judge.
Our prediction: Yagoferov will win his case, since there was a precedent in Ukraine. Last year the Supreme Court of Ukraine cancelled as illegal the similar decision of the Lugansk town council of 1997, when the powers of Aleksey Danilov were terminated under the same circumstances. But the decision in favor of Yagoferov will be taken not earlier than the spring of 2002, when the decision of restoration him on the post would be taken too late. The plan is simple: just to waste a little time.
Did the judge change his decision?
On 18 June the Leninskiy district court of Lugansk suspended the decision of the town council about termination of mayor Yagoferovs powers. Yet, practically at once the decision was recalled.
Citizens Valentin Tkalich (the head of the UNR oblast organization) and Aleksandr Smetankin (a member of the executive committee) handed the complaint about the illegality of the decision of the 24 thsession of the town council that terminated the mayors power. They consider that this decision abused their voters rights. The newspaper ‘Zhizn Luganska (Lugansk Life) received the letter sent to the Lugansk town council by O. Matveyshin, a judge of the Leninskiy district court. The suggested to return to court the act about the suspension of the town council decision without execution.
By the way the letter is dated by 18 June 2001, the same day when the court decision was taken.
The Severodonetsk Septameron with six happy ends
A member of the Lugansk Branch of the Committee of Voters of Ukraine (LB CVU) took part in the court session as a representative of the defendant. The claim was directed by former head of Severodonetsk militia M. Frolov against pensioner O. Novokhatskiy. The militiaman handed the claim about the defense of honor and dignity damaged by the collective appeal organized by Novokhatskiy and handed through MP Yu. Ioffe to the Ministry of Interior. The appeal contained the negative assessment of Frolovs work and the demand to transfer him to another place in the framework of the conventional rotation. In his claim the militia officer demanded to refute the lies contained in the appeal and to recompense him the moral damage assessed as Hr 1000.
Comprehending that the court could not be unbiased, our representative based his defense on the impossibility to prove that Novokhatskiy took part in the compilation of the appeal and the fact that reading a letter without knowing its content beforehand may not be considered as spreading lies.
The consideration of the case took four court sessions totally lasting 10 hours. Outside the court the plaintiff and the defendants representative came to the agreement, after which the demands to Novokhatskiy were withdraw in toto. Yet, the plaintiff insisted that the information given in the appeal was not true, and the court agreed with his arguments. Novokhatskiys representative did not object, since this decision did not have any consequences for everybody except Frolov.
On 9 January 2001 the PR-department of the LB CVU ‘Luganskinform-KVU placed on the site ‘Political Ukraine the information about holding in Severodonetsk the meeting for disbanding the Supreme Rada and against launching the aggregate for the utilization and destruction of pesticides. The meeting was organized by the initiative of mayor V. Gritsishin. The meeting finished with clashes of some of its participants with militia. The CVU observers predicted that the consequences of these clashes would have to be considered by their public reception office.
On 18 January a militiaman tried to detain S. Dyakov, the secretary of the town committee of CPU in the building of the town executive committee. The militiaman intended to take Dyakov to the precinct for compiling a protocol on an administrative offence. Dyakov phoned to the CVU reception office, a member of which spoke by telephone with the militiaman and convinced him that there were no grounds to detain Dyakov and promised that the latter would come to the precinct by his own will with an advocate and written explanations.
From the explanations of the militiaman it became known that Dyakov was accused of holding a non-sanctioned meeting (lasting 2.5 minutes, to be exact from 14:30 to 14:33 on 9 January) after the termination of the official meeting organized by the executive committee. In this connection the CVU members worked out the plan of defense and wrote the explanations, from which it followed that Dyakov did not hold any meeting. According to the version of the CVU turned to Dyakov during the meeting asking him to explain what was going, why the floor was not given to people with differing views, who personally was elected to the committee for protecting constitutional rights, etc. That is why Dyakov continued to answer the question after the official meeting was closed. He even had to use a loudspeaker, since the people, who asked questions, were numerous. However, his speech may not be regarded as a meeting, since it has no generic features of a meeting.
Dyakov came to the precinct together with a representative of the CVU reception office, who tried to explain the matter to Chistokletov, the deputy head of the precinct. But the latter refused to listen to the representative and demanded from him to leave the precinct, or else... After this Dyakov together with our representative left the precinct, leaving there the signed explanations.
The protocol about the administrative offence was compiled in militia and passed to court. In February the protocol and the explanations were considered by judge Zmiyevskiy, and he refused to open the case because of absence of the offence.
By the way, it was the sixth attempt for two last years to bring Dyakov to responsibility allegedly for his behavior during meetings. Similar attempts concerned two more persons. In all such cases the CVU provided citizens with efficient aid: all the cases were won in the first of in the surveillance court instances.
Severodonetsk public reception office has been helping pensioner Vodnev already for two years in restoring his rights. The privatization department of the executive committee refused Vodnevs request for privatization of the flat, where he resides, on the grounds that he has not yet exchanged his Soviet passport for the Ukrainian one. In November 1999 handed his complaint against the illegal actions of a state official; in December of the same year the claim was rejected by judge Medvedev. In doing this the judge made some procedural mistakes, which were used by our representative as the basis of the cassation. Yet, the cassation was also rejected. Then we handed the complaint to the oblast prosecutors office and the head of the oblast court. The oblast court head refused to reverse the court decision and the resolution of the cassation collegium, the oblast prosecutor entered a protest. The protest was rejected by the presidium of the oblast court. By the way, the prosecutor used good arguments, quoting the laws, according to which all people, who lived in Ukraine at the date of declaring the independence, are her citizens. Using these arguments the reception office helped Vodnev to compile the complaints to the Supreme Court and the General Prosecutor of Ukraine. The Supreme Court refused to satisfy the complaint and the General Prosecutor handed the protest the protest was rejected by the Supreme Court. Unfortunately Vodnev reviewed the answer from the Supreme Court only three months after the consideration of the General Prosecutors protest, when the reception office requested about the state of the case. Thus, the term to turn to the Strasbourg court already expired.
In order to meet the conditions of the term we decided to turn again to the first instance court, but now not with a complaint, but with a claim. It enabled us, if the claim were rejected in courts of first and second instances, to turn to Strasbourg. The claim for restoring the violated right for privatization was handed. The claim was considered by the same judge Medvedev. He refused to consider the claim since the matter had been considered before and a valid court decision had been taken. The cassation was handed. It was considered on 8 March and unexpectedly was satisfied. The case again returned to Severodonetsk. During the trial the representative of the reception office used an unexpected stratagem: he asked the court to concord the juridical state of Vodnev with his real state. Since, if Vodnev has no right for privatization as a non-citizen, then how he may have a propiska, why he may participate in elections and has some other rights typical for a citizen. The trial continues and we think that it may be very resonant.
In March Severodonetsk town court took an unbelievable decision. Two years ago Severodonetsk dweller S. sold his car, Audi of 1978 year of production, having agreed with the buyer for the price of $2500. Actually, he was given $100 in cash and the IOU for $1500. Then the buyer decided not to pay any more and warned S. not to insist on the payment, of he does not want himself to pay even more. In the end of 2000 a claim was handed to Severodonetsk court against S. the plaintiff demanded Hr 36 thousand to recompense the losses. The claim was appended with the act of assessment of the worth of repairs of the car, which, according to the assessment of a special firm, demanded Hr 16 thousand. The sum is not very surprising, if to repair such an expensive and worn out car. Besides the claimant appended a list of spare parts, which he allegedly bought, for the sum of Hr 7 thousand, as well as the demand to recompense his moral damage. In spite of the absence of any documents confirming the purchase of the spare parts (the plaintiff said that he bought them on a market), the judge found valid the claim for 7 thousand, referring to the law on the protection of consumer rights. The judge confirmed her decision that, according to the general principles of trade, if the contract of sale does not contain any obligations about the quality, then the purchased article must be suitable for use. The judge disregarded some argument on the side of the defendant: that the claimant did not deny that he actually used and intended to use the car, and that, according to trade rules, any pretensions at the quality of goods are accepted up to the expiration date of the guarantee, which is long over for a car of 1978 year make.
We think that the decision of the judge was obviously biased. Even if the fact of the dishonesty of the seller were proved, then the judge would be able only to annul the deal, making the seller to return the money and the buyer to return the car. Besides, the mentioned decision has created a very dangerous precedent by making the seller to give his goods gratis and even paying additional sum to the buyer. As to the IOU, the court even did not consider it. The plaintiff, in his turn, insisted that the IOU was not already valid, since the term of payment had expired.
S. turned to the CVU reception office with the request to ‘press on the oblast court. We refused to do it, but we gave him some advise how to behave at the cassation. On 19 April 2001 the cassation instance of the Lugansk oblast court reversed the decision of Severodonetsk town court and sent the case for reconsideration.
The torments of Igor Orel started in April 1998. Mr. Orel is a businessman from the town of Stakhanov, the owner and manager of an enterprise with the same name; he is also the founder and publisher of the oppositional newspaper ‘Kadievka. As the result of checking financial documents the tax police regarded the transport expenditures of the firm (Hr 30 thousand for 2 years) as a concealed profit: they came to this conclusion because some running schedules were not available. The Rules on using running schedules does not concern private transport, but tax police disregarded this fact. On 16 June 1998 a criminal case was started according to Article 148 part 2, and an enormous fine was imposed on the enterprise. As a result, the work of the enterprise stopped and 15 workers lost their jobs.
Yet, this case never came to a court, since nobody was accused. I. Orel refused from a consecutive amnesty, and in September 1999 the case was closed because of the absence of corpus delicti. On May 2000 the Lugansk oblast tax inspection annulled the fine and sanctions imposed by Stakhanov inspection. After this I. Orel supported by Stakhanov public reception office of the CVU handed a claim against Stakhanov tax inspection. He demanded to recompense his moral damage with Hr 100 thousand. In May 2001 Stakhanov town court satisfies the suit partly, ordering the town tax inspection to pay Hr 10 thousand to Igor Orel. Such a verdict is, perhaps, unique in Ukraine.
Town markets are typical objects that are controlled by oligarchic clans. But this seductive object in Severodonetsk was a rented enterprise from the beginning of the 90s. This means that the property was owned by the oblast consumers union, but was rented by another group. This group invested much of the income to the development of the enterprise.
Some time ago representatives of the local establishment decided to grab the market. Having agreed with (or enforced?) Valentina Maluta, the former manager of the enterprise, the protocol of the common meeting of the collective was faked (Protocol No. 12 of 14 January 1998). This protocol read that the collective agreed to reregister their rental enterprise as an associated company.
The cheated leasers learned about the fake in summer of 2000, when the new boss appointed a new director and started to sack old members or persecute those, who were not yet sacked. At the same time the property gained by the collective during several years was wasted fast. In summer the enterprise had almost Hr 100 thousand on its bank account, whereas in December they had a debt of Hr 250 thousand. The attempts of the collective to defend their rights by pickets and civil disobedience were suppressed with traditional Severodonetsk liberalism: militiamen armed with Kalashnikovs came to the enterprise, pushed out some of the protesters and took the most energetic to the precinct.
In summer Lugansk arbitrage rule to cancel the reregistering of the enterprise, but Severodonetsk executive committee circumvented the resolution. The decision about the registration of the associated company ‘Severodonetsk central market was canceled, and another associated company, ‘Central market of Severodonetsk, was registered.
The CVU reception office deals with this case since September 2000. We sent the complaint to the Zhovtnevy district court of Lugansk (the decision of this court about the annulling the reregistering and the dismissal of the former director was not obeyed by Severodonetsk executive committee). We also sent the collective members complaints to Severodonetsk town court about the illegal activities of the authorities, which violated their rights.
On 9 December the court took the decision that satisfied the demands of the leasers and ruled immediately (during 5 days) to restore the autonomous registration of the rental enterprise.
On 8 September Vadim Lebedev turned to the reception office asking to help him at the court session, where his cassation would have to be regarded. Earlier (without any participation of the CVU) he turned to the town court with the claim against Severodonetsk heat-electric generating plant, demanding to write off a part of his debt for heating, and to pay him a compensation for moral and material damage explaining his demands by the fact that the temperature in his flat was lower that required by sanitary norms (lower than 18 C). The court partly satisfied the demand to write off some of the debt, but refused the item about compensation. The court also ruled that the plaintiff must pay the court expenses. The cassation was compiled by a professional advocate. After this the complainer turned to the CVU reception office.
We advised the complainer not to insist on the compensation of material damage (it, according to the rules, may be demanded only if the corresponding clause figures in the contract), but to focus on the illegal decision of the first instance court about the court expenses. This is a legal request since, according to the decree ‘On court expenses, the expenses shall not be taken from a consumer, who turns to court for protecting his consumers rights. Along with it we advised the client to insist on the moral damage compensation, referring to part 3 item 3 of the Resolution No. 4 of the Supreme Court of Ukraine of 31 March 1995.
On 14 September the cassation instance reversed the decision of Severodonetsk town court and directed the case to the court of the town of Rubezhnoe.
26% of the Ukrainian population are poor, 14.7% are paupers
26% of the Ukrainian population are poor, 14.7% are paupers. Such data were presented to the Parliament by the Ministry of labor and social policy during the parliamentary hearing ‘The 5 thanniversary of the adoption of the Ukrainian Constitution. Rights and freedoms of Ukrainian citizens – hopes and reality. These data concern the first nine months of 2000. According to the complex investigation of the living standard, the main part of the poor consists of families with children up to 13 years old – 75%. The poor families with children, where all adult members are able to work, make 47.2%, families, where each adult member works – 18.5%. Another substantial part of the poor are pensioners. Families with pensioners make 44.5% of the poor families. According to the above-mentioned data, 78% of the poor families are the families, where at least one of the adults works.
Words and deeds of the Supreme Court chairman
In January 2001 the broadened session of the Plenum of the Supreme Court of Ukraine was held. V. Boyko, the chairman of the Supreme Court, delivered the report ‘On rendering justice by common courts in 2000 and measures of its improvement aimed at realizing the Constitution of Ukraine.
The report was very meaningful, with distinctly determined problems and ways of their solution. But how sincere is Mr. Boyko? In which extent his words correspond with his deals? How often he, controlling, according to Article 51 of the Law ‘On courts, how courts obey the Law and the interpretations of the Supreme Court Plenum, protests against biased court decisions?
In his report V. Boyko reminded that the jurisdiction of courts covers all legal relations in the state.
In practice the matters look somewhat different. For example, the Supreme Court of Ukraine got a complaint against the decision of the court collegium in charge of civil cases of the Dnepropetrovsk oblast court concerning the claim of K. Ustimenko to the town central heating organization ‘Dnetroteploset. The Supreme Court rejected the complaint and upheld the decision of the oblast court. The motivation of this resolution is contained in letter No. 6-1791n99 of 20 January 2000 signed by V. Boyko. ‘The Supreme Court based its decision on the fact that any court has no right to reverse orders on disciplinary punishments, since a court is competent only in the question whether the order is legal or illegal.
However, Article 6 of the Civil Code reads that courts defend citizens rights and, if the rights are violated, the court must restore the initial situation. Hence the court has the right to cancel an illegal administrative order.
In this connection we would like to ask several questions from the Chairman of the Supreme Court.
Case 1.A worker handed a claim against the manager of his enterprise about recompensing his moral and material damage caused by illegal sending him for coercive work. The district court ruled out to satisfy the claim in the part relating to the material damage. The court refused to satisfy the demand to recompense the moral damage, since ‘the labor laws do not contain any clauses about moral compensations for illegal transfer to other work. This decision was based on Article 440 of the Civil Code and any references to the Labor Code. Moreover, the moral damage was collected not from the manager, who ordered the coercive transfer, but from the enterprise, which, in spite of plaintiffs objections, was determined as another defendant by the decision of the court.
This dubious decision was acknowledged as legal and well-grounded in Boykos answer No. 6-2040n00 of 08 June 2000.
V. Boykos attitude to recompensing the moral damage by state enterprises was demonstrated in another case.
Case 2.A court acknowledged the actions of the service of rent subsidies as illegal and imposing on citizens rights. Again the material damage was recompensed, but not the moral one. The following reason given was that the service of rent subsidies is a state budget organization.
Answering the protest judge Boyko directed letter No. 6-8767n00 of 23 February 2001, in which agreed with this motivation and refused in reversing the decision.
But why one may not take compensation from a state budget organization?!
Case 3.A court considered illegal the transfer of a worker to another job. The decision reads that the position of a 3 rdgrade fitter was absent in the staff list, so the plaintiff was transferred to the position of the 5 thgrade fitter, but with the wages of the 3 rdgrade one.
Basing on this order, the worker turned to court demanding to pay him the difference of the wages. The court rejected his claim because ‘the court did not get ant proofs that the plaintiff really fulfilled the work of a 5 thgrade fitter. The judges did not want to notice the testimony that there was no work for a 3 rdgrade fitter at the firm. Nonetheless the Supreme Court, in answer No. 6-3091n00 of 13 June 2000 regarded the court decision as legal and well-grounded.
Case 4.Answer of the Supreme Court No. 6-7761n99 of 21 February 2000 regarded the decision of the Dnepropetrovsk oblast court of 30 August 1999 as legal and well-grounded.
This decision was reversed as illegal by the oblast court presidium on 20 October 1999, about which the Supreme Court was informed. The Supreme Court chairman did not protest.
There are some other problems. Everywhere courts violate the procedural terms for preparing and considering civil cases, terms stipulated by Articles 146, 148 of the Civil-Procedural Code (CPC). The trick of relating a case to the category of especially complicated is widely spread. This enables judges to use Article 209 of the CPC for postponing the execution of the motivating part (which should be done within three days) for long periods. In this connection the following case is illustrative.
Case 5.In 1997 a worker turned to court with the complaint that he was illegally disciplinary punished and deprived of the bonus. In 1998 his claim was fully satisfied, but the cassation instance reversed the decision because of the scarcity of information and sent the case for an additional investigation. In 200 the claim was satisfied again, but the cassation instance again reversed the decision, and again directed the case back to the district court for reconsideration.
The disciplinary punishment is already long withdrawn, the bonus is paid in the framework of immediate fulfillment of the first court decision, no falsehood is found in the plaintiffs testimony, so there are no grounds to reject the already executed decision. The subject of the controversy does not already exist, but the district court must obey the instructions of the cassation instance. As a consequence, the overloaded district courts get additional load.
There is Boykos answer No. ?6-8306n00 of 19 December 2000 that approves the decision of the cassation instance.
Case 6.The actions of the main physician of the psycho-neurological dispensary were acknowledges as unlawful by the decision of a district court. He was accused of presenting false information and concealing true information. The court decided to make him present the information about including and excluding patients into and from the register of psychically sick in absentia of patients. The Dnepropetrovsk oblast court cancelled this decision in the cassation order, the case was closed because it was out of the scope of court rights. The legality of this closure was confirmed by V. Boyko in his answer No. 6-1147a93 of 18 November 1996.
The Constitutional Court of Ukraine, having considered the complaint, decided that in cases of refusal to give information or premeditated concealment of information by a medical doctor, his actions may be protested in court, that is such questions lie within the scope of court rights.
Basing on this decision of the Constitutional Court the prosecutors office turned to the oblast court about reconsidering the case in connection with new circumstances. Yet, the oblast court rejected the prosecutors request, since the decision if the Constitutional Court did not mention the information essential for the correct solution of the case, which the both sides and the court did not and could not know. Obviously, at the moment of taking the decision the court knew that the case lay within the scope of court rights.
In answer No. 6-6778n00 of 29 December 2000 V. Boyko acknowledged the decision of the oblast court as legal and well-grounded, so this case was refused to be considered in the Supreme Court.
For the illustration of Boykos attitude we shall present some quotations from his above-mentioned report (‘Visnyk Verkhovnogo Sudu [Herald of the Supreme Court], No. 1, 2001):
‘Frankly, one should confess that some of our colleagues themselves provoke distrust and negative estimates by their low professional level, unqualified decisions, simplifications, impoliteness or even rudeness.
The high status of a judge, who is a carrier of the court power, must make him always be unbiased, just and hard-edged to those, who violate any rights and freedoms of citizens.
‘Special attention of judges should be paid to the quality of court decisions, which must well-grounded and convincing...
‘It is necessary... to improve the quality of control over legality and objectivity of court decisions, which already came into force.
PL commentary:1) As to the first case, one should point out the following. At the moment of taking the decision by the Amur-Nizhnedneprovsk district court of Dnepropetrovsk (29 November 1999) the old version of the resolution of the Plenum of the Supreme Court of Ukraine ‘On court practices in cases concerning moral (non-property) damage of 31 March 1995 was acting. Item 2 of this Resolution stipulated that controversies about recompensing a moral damage should be considered only in the cases implicitly listed in the special laws. The conflict concerning the compensation of the damage caused by an illegal use of coercive labor by the enterprise, where the plaintiff worked according to the labor contract, was regulated by labor laws, mainly by the Labor Code of Ukraine (LC). This law, at the moment of the transfer, mentioned only the responsibility of an employer for the material damage of an employee caused by dangerous or harmful labor conditions (Article 173-1 of the LC), as well as damage to the health during fulfilling the labor duties (Article 224 of the LC).
The decision of the court to regard the enterprise as another defendant also did not contradict the operating laws. The reason is that the manager ordered the transfer not as a physical person, but as an official representing the enterprise. It follows that the guilty side is the enterprise, although it, in its turn may suit the manager, who abused the law, and then the manager would have to recompense all the damage inflicted to the enterprise (Article 134, item 8 of the of the LC).
2) In the second case the reference of court that the Service of rent subsidies is a state budget organization (and so it is not responsible for moral damage) is not consistent with laws, although in this case a misinterpretation could occur. The matter is that Article 442 of the Civil Code is still operable since 1985. It stipulates that officials, state or public organizations are responsible for the damage inflicted by them in the process of administration as all other people, but this article refers to other Articles: 440 and 441 of the Civil Code. This means that, if one interprets the law literally (adequately), then it follows that they are irresponsible for any moral damage, since Article 440-1 on recompensing the moral damage was added to the Code as late as in 1993. However, one should interpret this case in a broader sense, since the core of the article is not a list of references, but its main criterion – ‘the main concept of recompensing the damage.
3) The problems connected with the terms of informing the sides about the court decisions on civil cases are most common problems of the modern civil legal proceedings in Ukraine. The judges are ‘overloaded and, since the definition of ‘especially complicated cases in part 4 of Article 209 of the Civil-Procedural Code (CPC) is rather vague, judges under this pretext very often relate quite common cases to this category and postpone them. There are cases, when the decision is take not within three days, as it is stipulated by Article 209, but in a week or even several months.
All these actions break part 1 Article 6 of the European Convention of protecting human rights: the right of getting the court decision within a reasonable term and the right of the access to court.
Any explanations about the overloaded national court system in such cases are not taken as mitigating by the European court.
4) Case 6 presents especial interest both for juridical theory and practices. In this case the oblast court rejected the decision of the prosecutors office about reconsidering the case in the connection with the appearance of new circumstances, because the new circumstances were but a decision of the Constitutional Court of Ukraine (CCU).
The matter is that Articles 13, 14 of the Law ‘On the Constitutional Court of Ukraine distinctly make a hard line between the competence of CCU and common courts. The competence of the CCU lies in determining how legal documents agree with the Constitution. The documents meant are: laws, other legislation acts of the Supreme Rada, decrees of the President and government, international agreements signed by Ukraine, observation of the impeachment procedure by the Parliament and interpretation of laws. This means that the CCU may not consider any court decisions as to their essence, to reverse decisions, etc. This enables many lawyers to doubt the competence of the CCU as a court.
The fulfillment of the CCU official resolutions is obligatory for all legal subjects in Ukraine (Article 69 of the Law), but such fulfillment is possible only in the framework of the existing procedures. In the case considered the cassation instance took the decision, which becomes operable immediately after announcing without the right to be appealed (Article 321 of the CPC). Thus means that in order to change the decision the special procedure must be applied: the protest of a competent official in the framework of surveillance or a prosecutors order about the reconsidering the case in connection with the appearance of new circumstances. However, Article 343 of the CPC does not mention among these circumstances an appearance of the Constitutional Court interpretation, which does not agree with the decision of the court (the same is true also for the decisions of the European court of human rights). Account of the interpretation by the Constitutional Court certainly must be added to the list of circumstances. This will enable the claimant to seek the reversing or changing the court decision by himself, without turning to a prosecutors office. Yet, nowadays the refusal of the oblast court to reconsider the case was quite well-grounded, since the Constitutional Court did not add any new factual circumstances, about which the court did not or could not know
In this case the mistake was made by the prosecutors office, since it would be better to hand the protest in the framework of surveillance, on the basis of the improper interpretation of the property rights by the court (Articles 313, 338 of the CPC).
Besides, it must be noted that the plaintiff did not get the information about his including and excluding into and from the register of psychically sick. This means that the violation of the Constitution, noted in the CCU decision, continue, the CCU decision is not obeyed yet.
To sum up, we want to point out the excessive importance of the precedents described by Konstantin Ustimenko and to thank him for his long fruitful work. At the same time we want our readers to pay attention to the positive changes in the work of the Supreme Court of Ukraine and the court system as a whole. This promising fact was more than once marked in ‘PL.
Advocate Salovs case
On 15 June 2001 the Voroshilov district court of Donetsk satisfied advocate Salovs claim against the town prosecutors office and militia. The claim concerned ‘the torture and degrading treatment during investigation. As the claimant affirms, he was kept in the only cell without a bunk, so he had to sleep on the bare floor. After several months staying in the preliminary prison his health deteriorated. The claimant demanded the compensation of Hr 50 thousand. The court ruled to satisfy the claim partly and to enforce the Donetsk town prosecutors office and the Donetsk militia directorate to pay Salov Hr 1.5 thousand each as the compensation for moral damage.
Yet, the accusation of Salov is not taken off. On 31 October 1999, on the eve of the presidential election, Salov found in his mailbox the parliament newspaper ‘Golos Ukrainy, which informed of Leonid Kuchmas death. It was a fake, and Salov did not take part in its printing. He showed this newspaper to a few people and was arrested for spreading false rumors. Salov was accused of violating Article 127 of the Ukrainian Criminal Code ‘Preventing to realize the right for election. For this ‘crime in July 2000 Salov was convicted to five years of incarceration with the postponement of the verdict for two years. Before the trial he was kept in the preliminary prison.
People perish of torture in Ukraine too
On 14 June in the informational center IREX ProMedia representatives of the Ukrainian Association of Amnesty International (UAAI) held a press conference, where they told that they started a worldwide campaign against torture. In particular, the place of the press conference was declared as a ‘torture-free zone.
These days The UAAI celebrates its seventh anniversary. The first spots of the movement appeared in Ukraine in 1991, and nowadays 41 UAAI organizations operate in the Ukrainian territory. Amnesty International, as a worldwide movement for human rights protection and releasing prisoners of consciousness, by way of attracting the attention of the world public, was founded by Peter Benenson, an English journalist and advocate. After the publication of his article ‘The forgotten captives in 1961 the idea to organize a worldwide campaign for human rights protection was supported in the majority of countries.
During its existence Amnesty International (AI) actively worked on cases of 43 thousand prisoners of consciousness, 40 thousand of them were released. The top priority spheres of the AI activities are the protection of womens and childrens rights, release of all prisoners of consciousness, just trials for all political prisoners, abolishment of the death penalty, struggle with political assassinations and torture. The AI includes a network of professionals – groups of medics, lawyers and other people, who use their knowledge for human rights protection.
In the course of the round table held these days UAAI head Svetlana Kharitonova informed that since 1997 the AI received reports on the application of torture by state officers from more than 150 countries. Torture is widely spread and often applied in more than 70 countries. In more than 80 countries such practices result in the death of the victims. According to Ms. Kharitonova, Ukraine is one of these countries. She added that torture was applied both to the suspects of crimes and to political prisoners, socially unprotected people and dissidents, men and women, adults and children.
Information from 150 countries confirms that the most frequent kind of torture and degrading treatment is beating by police or militia. Some victims die after it. Frequently applied kinds of torture are as follows: rape and sexual molesting and electroshock (in 40 countries), suspending the victim (in 40 countries), beating on the soles (in 30 countries), strangling (in 30 countries), long-lasting isolation (in 50 countries).
The most active torturers are: in 140 countries -- policemen and militiamen, in 40 countries – the military, in 20 countries – so called ‘death squads. During last three years torture and degrading treatment of children was observed in more than 50 countries. The captive children risk much to be raped or sexually molested both by policemen and their cellmates. Since 1997 the Ai received messages from 50 countries on all continents about rapes and sexual use of women by state officials.
During the round table its participants also learned that during the current year the Ukrainian ombudsperson got several hundreds of complaints concerning torture by militiamen and prison guards.
‘Torture or cruel, inhumane or degrading treatment shall not be applied to anybody, reads Article 5 of the Universal Declaration on human rights. The AI appeals to governments of all countries to publicly condemn torture; state officers of all ranks shall declare ‘torture-free zones within the space controlled by them. The Ai also appeals to citizens, who experienced torture and degrading treatment, to turn to the European court of human rights.
Children ask to release their father
On the International Day of children protection the wife and five children of the convicted Crimean journalist Sergey Potamanov picketed the buildings of Crimean government, parliament and prosecutors office, demanding to release their husband and father, whom they believe to be a political prisoner.
Lubov Tishchenko, the wife of journalist Sergey Potamanov condemned in December 2000, told that she chose 1 June for picketing on purpose. She said that five underage children ‘is a weighty argument serving to attract the attention of the world public to the lot of their father, the editor of the district radio station ‘Feniks, on the Day of children protection.
L. Tishchenko regards that her husband ‘is a political prisoner, since this was the only reason why he was persecuted. ‘He did not kill and he did not steal, he only stood in the way of the authorities of the Leninskiy district, said L. Tishchenko. In the complaints that she passed to the Supreme Rada of the Crimea, to Council of Ministers of the Crimea and to the prosecutors office of the Crimea she asked ‘to assist in returning the unjustly incarcerated father to his children. Leonid Grach, the speaker of the Crimean parliament promised ‘to clear up the matter and to help. A member of the staff of the prosecutors office, who did not give his name, also promised to help.
As the Committee of monitoring the freedom of the press in the Crimea, Sergey Potamanov, in his appeal passed from the prison in the beginning of May, declared that he did not consider himself guilty and would continue to fight for his freedom. Last December Kerch town court found him guilty according to 4 articles of the Criminal Code. He was blamed of hooliganism, destruction and theft of state property and of storage of ammunition. Sergey Potamanov calls the accusations a revenge for his journalist and human rights protecting activities. This April he handed a complaint to the European Court of human rights.
Simferopol, 1 June 2001
The press release prepared by the Committee of monitoring the freedom of the press in the Crimea
at the Crimean Center of independent political investigators and journalists,
tel. (065-2) 27-69-65, e-mail [email protected]
Interview of independent journalist Oleg Eltsov
Recently independent journalist Oleg Eltsov has started a new project: the Internet site ‘Criminal Ukraine. The series of article about the Derkaches clan, the eldest of whom has lately headed the USS, became the most explosive material placed on the site. Briefly, the essence of these articles is that Leonid Derkach is connected with the notorious businessman Semen Mogilevich, was engrossed in external political intrigues behind Kuchmas back and even considered ways to exchange the President for a more flexible one. As a result, the USS got interested in the site.
On 25 June 2001 a criminal case was started about divulging the information ‘presenting state secrets and divulged by a person, whom this information was entrusted or became known in the connection with his service duties, but at the without features of the high treason. This information was published on Eltsovs site. For the time being the journalist is a witness in this case. Article 67 of the Criminal Code, according to which the case was opened, envisages the incarceration for the term from 2 to 5 years. Next day Eltsov was summoned for an interrogation to the USS investigation department. After the interrogation the investigating officer ordered to have search the journalists flat. On 27 June the journalist was summoned for another interrogation. There they made him to give an obligation not to spread information about the case.
In the small hours of the morning of 28 June we managed to communicate with Oleg, who just returned after a subsequent interrogation.
Corr.: Oleg, what has happened?
Oleg Eltsov:It seems that an unprecedented event has happened: a case is open about a publication in the Internet. Here I must comment that the site is not registered as a mass medium. Our purpose is to help the law-enforcing organs to open criminal cases basing on the materials of the site. The bright example is the article about the Derkaches. Alas, this has not happened yet. My colleagues turned to the General Prosecutors office with the request whether the facts mentioned are checked, but got no answer. Instead of this the case was opened according to the article ‘divulging information presenting state secrets. In my opinion, this is a rather interesting precedent. In any case this article does not cover me. It is rather amusing to observe the clumsy actions of the investigators: they just do not know what to do in such cases, what to confiscate and from where. The investigator does not understand the phrase: ‘I placed the information from different computers. This means that the concept of the place of crime becomes rather amorphous. Our operatives have appeared quite unprepared for work with computer operations.
Corr..: Who conducted the search?
O. E.: A USS officer – state secrets are their domain. The search warrant was issued by the deputy General Prosecutor.
Corr:: Has a criminal case been started?
O. E.: Yes, I am a witness. It is good. As such I have no right to use advocate services. It is bad.
Corr.: How do you explain all this fuss?
O. E.: It is difficult to answer now, by I have an impression that they are searching for the originals and some additional documents, which I never had and about which I informed them at once. There are no grounds yet to tell that the case was ordered. Although I feel some suspicions.
Corr.: Have you ever dealt with law-enforcing organs in such a capacity?
O. E.: I never was a witness. Usually I suffered from libel claims, which were checked before the investigation by prosecutors office. I did not loose a single libel case and their total number was about five. I was never accused in divulging state secrets, although during the searchers from the USS were puzzled by finding in my archives many documents from the USS and militia, many concealed data about our oligarchs, politicians, etc.
In principle, I am pleased with this scandal. It is another opportunity to remind our gallant law-enforcers, that they should pay more attention to mass media.
The information is obtained from the Center of extreme journalism
PL commentary:The press reaction to this event is very strange. As to the USS reaction, it should be expected. The information published on the Eltsovs site is secret, so the criminal case about divulging the state secrets was started legally. In such a case the journalist may figure in the case only as a witness and must not be responsible for the offence. As far as we know, it is the third similar case of divulging secret information through mass media in independent Ukraine; in two previous cases the journalists did not suffer. The goal of the investigation is to find the leak of secret information and punishment the guilty, whom the state secrets were entrusted. It is difficult to believe that Eltsov, who was writing many years about security services, did not understand what he was doing, when he published on his site the document classified as secret. This publication is, more probably, a part of the well-planned campaign, which is carried out by one power clan against the other, and the publication of secret materials serves rather for to fan the fire. This purpose has been successfully achieved. I think that this story will have a serious continuation. Alas, our mass media long before became inter-clan media, journalists play the role as mouthpieces.
Of course, the information published by Eltsov is very grave and requires a careful checking. The journalist, who published the documents, took chances. Yet, in my opinion, we must not hurry to declare that the Derkaches are criminals. Taking account of the criminal character of Ukrainian business, which was artificially created and is carefully supported, it is easy to present the activities of any businessman (especially the richest of them, oligarchs) as a chain of crimes. It abnormal, when the order ‘Tally-ho! is given concerning a businessman and he is destroyed. Why he and not somebody else? All of them are equally guilty before the law. All these fuss is determined, after all, by the fight for power, for the opportunities to control money flows, for the opportunities to get privileges for ones own business. It is quite understandable that under such conditions various security services procure compromising materials against each other and about firms patronized by different services. The closed manner of work of the Ukrainian power just promotes and supports these processes.
What can change this system? Any political force tending to grab power will have to elucidate the ‘dark spots of out economic, which is impossible without the victory of the doctrine of open and moral policy. Until it happens, all the speeches about the struggle with corruption will be lip service.
Urgent problems in Ukraine – sugar diabetes and cancer
Sugar diabetes is a serious medical and social problem, said Vitaliy Moskalenko, the Minister of health protection, in the Parliament on 12 June, the Government day. He told that nowadays there is about one million of sugar diabetes in Ukraine. Among them 11-14% are insulin-dependent, 120 thousand need daily insulin injections, about 300 thousand live on sugar-lowering drugs. According to the Minister, the proportion of the sick in 2000 was 129.4 for 100 thousand. The proportion of the sick children in Ukraine is increasing with time: in 2000 it was 9.3 for 10 thousand; the children are sick only with the insulin-dependent from.
Another serious problem in Ukraine are malignant tumors. The proportion of the sick with cancer and the death rate from the disease are large and show no tendency to diminish. The risk to get this disease grows with the deterioration of the environment and the increase of the average age of the Ukrainian population. According to Moskalenko, the special calculations showed that during the lifetime one of three men and one of five women has the chance to get cancer. The proportion of the sick in 2000 was 316.2 for 100 thousand.
About 160 thousand of new cancer cases were registered last year. According to the forecast, in 2010 this figure will reach 180 thousand.
The Minister also noted that cancer is the cause of more than 15% of the total number of deaths in Ukraine.
TB is spreading in Ukraine
According to Vitaliy Moskalenko, the Minister of health protection, the number of TB cases for the last decade has increased by 1.8 times and equaled 60.2 for 100 thousand in 2000; the mortality rate caused by TB has increased by 2.7 times.
Annually about 30 thousand of new TB cases and about 11 thousand deaths cause by it are registered in Ukraine. TB causes more deaths that all the other infectious diseases rolled together (83 %).
186 anti-TB establishments work in Ukraine. Their total capacity is 25531, that is 5.2 for 10 thousands of population. This ratio is constant for last three years.
At the same period the total expenditure for buying drugs for TB cases increased from Hr 10.4 million to Hr 49 million. The expenditures for buying the medicinal drugs from the state budget at the same period increased from Hr 950 thousand to Hr 36 million. In 2000 this kind of expenditures was financed with Hr 27.5 million (100% of the planned sum).
Message from the Sevastopol human rights protection group
About 10 people with TB are kept in one cell of Sevastopol militia detention block. They are accused of various crimes including grave ones. The administration of Simferopol preliminary prison refused to take them because of the poor health referring to absence of suitable conditions for their upkeep. However, the conditions in Sevastopol detention block are even worse: it is not suitable for long upkeep of inmates. Now the sick convicts do not get the necessary medical aid and are not taken for walks. This kind of detention, in the opinion of the Sevastopol human rights protection group is cruel and inhumane, that is incompatible with international obligations of Ukraine. The relations between different penitentiary organizations must not create conditions for violating human rights. The Sevastopol group demands to grant the necessary medical aid to all TB cases in custody in Sevastopol, and to provide them the upkeep conditions consistent with the Minimal standard rules of upkeep of prisoners adopted by the UNO.
News agency STATUS QUO
Military prosecutors office is investigating cases of dedovshchina
Five criminal cases on dedovshchina were started this June. One of them concerns three servicemen of the military-constructive faculty of Kharkov technical university of construction and architecture, the military prosecutors office of the Kharkov garrison informed.
The investigating officers found out that, cleaning the soldiers canteen, the accused decided that the private on duty badly cleaned and washed up. The punishment followed, during which the private got many grave injuries. The investigation classified the actions of the servicemen as violating Articles of War and Article 238 ‘B of the Ukrainian Criminal Code.
Daily toils of the Social Service of Ukraine
The Social Service of Ukraine is a voluntary public organization, whose activities cover the entire territory of Ukraine. The chief tasks of the organization are humanitarian, moral and intellectual aid to the population, especially to its least socially protected part. First of all, it concerns the following spheres:
• aid to the sick, handicapped, old and lonely;
• aid to families with many children;
• aid to children, who suffered from the Chernobyl catastrophe;
• restoration of old national customs and traditions;
• all-sided intellectual and moral aid;
• cooperation in international partnership programs;
• support and promotion of Ukrainian schools;
• cooperation with all people of good will in Ukraine and abroad.
The high administrative organs of the Social Service of Ukraine are the congress and the directorate that is elected at the congress. The current directorate rules 97 branches in all oblasts of Ukraine and the Crimea.
The main founders of the Social Service of Ukraine (SSU) are the World Council of the Social Service (headed by O. Daniliak) and the Social Service of Canadian Ukrainians (SSCU) (headed by M. Stebelska). They sponsor Ukraine through the funds ‘Aid to Ukraine and ‘One-dollar Fund.
Now the joint project of the SSU and the SSCU ‘Charity canteens is fulfilled. One of the participants of this project is our district organization.
The SSU is open for cooperation with all public and political organizations, parties, public movements, religious unions that support state and the independence of Ukraine.
Gola Prystan district organization of the SSU began its activities in 1993 as a branch of Kherson town organization. Since 14 July 1994 the organization got a status of a district organization with its own statute, seal and bank account.
During the years of its existence the organization conducted charity activities rendering aid to lonely people, children and poorest. In particular we helped to:
• the boarding school for mentally retarded children in Starosburyiv (principal M. Andriets);
• geriatric boarding house of the Gola Prystan district (vice-manager S. Khrapko);
• Gladkivka secondary school (principal V. Shchipak), Gladkivka hospital (head physician V. Zakharov).
We bought the needed medicine in the Gladkivka village drugstore No. 77 (manager S. Moroziuk) for poor families and families with many children, as well for victims of the Chernobyl catastrophe.
We also helped to inhabitants of the village of Tavriyska (head of local rada P. Shevchenko) and to the village secondary school (principle P. Pavliuk). We helped by giving them clothes obtained from the foundation ‘Counterpart.
Financial aid was also rendered to some inhabitants of the district.
In November 1998 Ms. Nadiya Samuliak, the head of the SSU in Kyiv, visited our district. Jointly with coaches of the International organization ‘Womens consortium she held training sessions on tender relations in the society for women of Gola Prystan and the villages of Gladkivka, Maly Kopani, Tavriyske, Nova Zbruevka and Stara Zbruevka. Ms. M. Stebelska, the head of the SSCU attended us on 12 September 1999. She visited the office of the district organization in the village of Gladkivka, visited the local church and communicated with the parishioners, participated in the procedure of the consecration of the church and the memorial to the victims of the holocaust of 1932-33.
The organization cooperates with the Fund of charity and health (A. Tiutiunnik), the fund ‘Saint Olga (O. Kornienko), the oblast branch of the Committee of Voters of Ukraine (D. Bely) and with the following international organizations: the Union of Ukrainian women in America (I. Krisa), the Fund ‘Counterpart International, the National-democratic Institute. We are also establishing the ties with the organization ‘Cooperation initiative ‘Poland –USA – Ukraine.
In 2001 our organization works on the project of creating the consulting centers of volunteers for owners of land plots.
The goal of this project is the maximum increase of the quantity and activity of the family-owned farms by way of granting legal aid to the landowners in protecting their rights for land and by way of the pressure on the district authorities to make them observe laws in implementing the land reform.
The tasks of the project are:
• creating the voluntarily consulting centers of volunteers for owners of land plots in every village of the district;
• creating the volunteers schools for instructing land owners and their preparation for the work in the consulting centers on land reform;
• legal aid to land owners in trials concerning the protection of their rights for land;
• practical aid to shareholders in their relations with various inspections, funds and other agencies, as well as in compiling various reports.
We wish to enlighten farmers and thus increase their opportunities to influence the authorities and their decisions. To this end, we have created the above-mentioned consulting centers.
We are going to:
• create the consulting centers in each village of the district;
• publish and distribute among land owners booklets, brochures and bulletins on the land reform with the addresses and phone numbers of the nearest consulting centers;
• cooperate with the district department of land resources and farmers organization;
• organize the monitoring and analysis of the reasons of the refusal of peasants from their land plots and passing the plots to other people, as well as of the negative consequences of this phenomena;
• create the database to account for the number of the individual farms and people, who want to organize such farms;
• organize a mobile group of professionals for work as traveling consultants of the village centers and for the realization of the program ‘Enlightening literature and individual consultations to each family
• create a permanently working school of volunteers for the village consulting centers;
• organize a series of radio transmissions about the state of the land reform;
• organize a series of radio lessons for peasants on the topic ‘Concept of land in the Ukrainian peasants mind (history, literature, law)
• cooperate with independent lawyers, land distributors at village councils, specialists from the department of land resources and specialists from agrarian structures of the oblast.
In the framework of this project we published the booklets containing recommendations, which may be of help for the people, who are going to become farmers.
Who are best protectors?
The Association of public organizations of the Poltava oblast for the first time conducted the comparative evaluation and determined the popularity rating among representatives of mass media and public organizations that deal with the protection of citizens interests and rights. The organizations for evaluation are: groups or individuals protecting women, children, veterans, the handicapped, the unemployed, etc. It is natural to determine the winners of our competition not in high offices, but in a democratic way, as it is done throughout the world.
We distributed our questionnaires among various political parties, NGOs and mass media, that is among the active and competent people. The respondents were asked to compile a list of ten journalist and public figures, who, in their opinion, were the most active in 2000.
The results of the poll were processed by the method, which completely excluded subjectivism. Since every respondent ordered ten pretenders, and each place determined some number of points, so the rating of any pretender was obtained by mere summing.
All in all 26 journalists and representatives of public organizations were mentioned. The ten people, who got the largest number of points, are as follows in the decreasing order of the obtained points:
1. Ludmila Kucherenko — the president of Poltava media club.
2. Zoya Kovalenko — the deputy head of the Center for human rights protection at the Union of army veterans in the Poltava oblast.
3. Tamara Prosianik — the editor-in-chief of the Kremenchug newspaper ‘Informatsionny bulleten.
4. Anatoliy Banny — the editor of the newspaper ‘Pryvatna sprava.
5. Lubov kaluzhna – the rector of peoples university at the culture and enlightenment society of invalids ‘Irina.
6. Ganna Kiyashchenko — the head of the Poltava branch of the Ukrainian Social service.
7. Oleksiy Gavrikov — the head of the oblast committee ‘Pravozakhyst.
8. Mykola Kulchinskiy – the head of the oblast organization ‘Prosvita.
9. Grigoriy Bordiug – a deputy of Poltava town council.
10. Evgen Muller – the head of the Poltava branch of the Committee of Voters of Ukraine.
Although the poll was conducted in Poltava only, the respondents also mentioned such names: journalists Viktor Kozoriz from Mirgorod, Yaroslav Prots from Shishaki, Olga Olenich from Kremenchug and human rights protection activist Volodymir Velichko from Lubny. This testified that their noble activities are known far outside their towns and districts. It surprised the organizers that nobody mentioned such well-known figures as Lidiya Safronova, the head of ‘Rodynny dom and Viktoriya Kurilko, the head of the Poltava Womens Union ‘Churayivna. The latter, by the way, was noted in the nomination ‘public figure in March at the joint celebration organized by the Agrarian party and the party ‘Solidarity of women of Ukraine.
The Association of public organizations of the Poltava oblast intends to conduct such a poll every year.
Interview with MP Viktor Shishkin
Here is a fragment of the interview with MP Viktor Shishkin for the radio ‘Liberty.
Igor Stoliarov: You, as well as MPs Eduard Gurvits and Yuri Karmazin, are personae non gratae for the authorities-obedient press. In this connection, I am sure that our listeners will be interested in your work in the Parliament.
Viktor Shishkin: The main task of any MP is creating laws. And we do it -time. This concerns not only compiling our branch-wise laws, such as the Law ‘On court system or the Criminal-Procedural Code. This is an immense system of interconnected laws covering also the activities of militia and prosecutors offices.
I also participate in compiling laws of other kinds. For example, our voters from Odessa sent us some suggestions concerning the Law ‘On land. And I introduced them to the group of similar questions for discussing. Our contribution to the residence code is also not small.
Other obligations of MPs are connected with the controlling functions of the Parliament. This is the control over the executive power organs and other state institutions.
More than once I gave interviews on this topic for the press and TV. Unfortunately, these interviews were not made public. It was these interviews, where I spoke that our control functions were substantially constrained by some decisions of the Constitutional Court. For example, we are completely prohibited to intrude to court activities. Now we are unable to react to the complaints connected with court activities.
The next decision of the Constitutional Court concerned the activities of prosecutors offices. There our rights became also very restricted. The constraint retains to the prosecutors office, which is a part of the executive power, whereas in civilized countries the protection is controllable by the Parliament. That is why I, in spite of the prohibition, now and then send to prosecutors the complaints of Odessa inhabitants with my own comments and notes.
I was especially offended by the third decision of the Constitutional Court taken last year. It followed the notorious referendum ‘after peoples initiative and cancelled many rights of us, which concern our reaction to the actions of local authorities. I reckon that an MP from Odessa, especially elected according to the majority system, must react to the activities of Sergey Grinevetskiy or Ruslan Bodelian (the present and former mayors of Odessa. – Translators note). After the mentioned decisions of the Constitutional Court the scope of my control reactions is rather limited.
The letters, which I sent to the Odessa authorities, more often are not answered or answered formally.
I. S.: The election to the Parliament and to the mayors office are coming. That is why I want to know your viewpoint as to the life in Odessa.
V. Sh.: To put it in as nutshell, bright life in Odessa has terminated. I believe that under mayor Gurvits the life was more vivid. In spite of the fact that Gurvits had a tendency to violate laws, about which I used to write, the life, as a whole, developed and progressed.
I know about many misuses and violations connected with land, beaches and their distribution in Odessa. Many voters turned to me. But it is impossible to suppress the misuses under the existing system of power...
The local authorities, having come across a felony, usually refer to the general chaos in the state. The local authorities must try to increase the number of jobs in Odessa. They must also control that the Ukrainian laws should be obeyed in the city. I get a lot of complaint about the activities of law-enforcing bodies, organs of health protection, etc.
I. S.: Another urgent question is THE FREEDOM OF SPEECH. After the appearance on the screen of you and MP Yuri Karmazin the popular TV feature ‘OKO was closed.
V. Sh.: Nowadays the freedom of speech in Odessa reflects the general level of the freedom of speech in Ukraine. It seems that in Odessa the freedom of speech is the most painful problem for the authorities.
I understand the behavior of the President and his local yes-men – Grinevetskiy and Bodelian – that concerns sealing mouths to the oppositional MPs.
Let us have a look: four MPs were elected in Odessa in the majority boroughs. Two of them are openly oppositional to Leonid Kuchma. I have never concealed my opinions and took an active part in erecting, guarding and protecting the tent camp in the framework of the action ‘Ukraine without Kuchma. I took part in all manifestations and meetings during the campaign. My colleague Yu. Karmasin acted likewise.
The third deputy, E. Gurvits, also belongs to the anti-President opposition, although he has lately become less active.
It is obvious that under such circumstances the President and camarilla do everything they can to make us shut up.
When we tried to express our opinions about the ‘cassette scandal, Georgiy Gongadzes case, activities of ministries and agencies, the remaining independent TV-channel ‘OKO was closed. In fact, now we have no opportunities to use mass media to bring our opinions to the people.
The authorities so their best to prohibit not only our opinions – they even prohibit to publish analytic comments and articles about the activities of the opposition.
I believe that nowadays the situation with free expression in mass media is much worse than in 1988-1990, when communist were in power. In that time I had an opportunity to convey my opinion to my voters.
Now the people is held in the informational obscurity.
I. S.: What is your opinion about the criminal situation in Odessa?
V. Sh.:Unfortunately, the criminal situation is difficult to analyze. I recollect how this question was discussed when Gurvits governed the city. Then any, even insignificant, event was made a sensation.
I believe that today the situation is much worse, but it is hush-hushed. Economic and political clashes occurring in Odessa do not get enough attention of mass media. We do not know the actual state of things.
I. S.: Independent mass media in Odessa, as well as the Internet sources, now write much about the connection of Ruslan Bodelian with Aleksandr Zhukov, the president of the holding ‘SINTEZ. Do you know anything about this affair?
V. Sh.: yes, I know about this affair just from the Internet. I read about this on the site ‘Federal investigation agency. The description gives, in my opinion, many details. The relations of certain persons, such as Angert, Zhukov, Bodelian, Andrey Derkach and President Kuchma, are described properly.
What must be ones attitude to this publication?
Let us begin with facts, although all facts are well known by now. But we know that Zhukov was actually arrested by the Interpol in Italy, as well as his accomplices. These are not newsmens fantasies, these are bare facts.
Now about their activities connected with arms. Experts in Italy distinctly determined the arms-trade channel, which went through Odessa port. And this is also a well-proven fact.
Did the persons mentioned on the site ‘Federal investigation agency from a clique? I believe that the information is truthful. I shall explain my position. We must take into account that independent journalists owing to the Internet never made a mistake.
What was the reason of killing Georgiy Gongadze? In fact, for his similar publications in the newspaper ‘Ukrainska pravda. Almost all that was published there was later confirmed.
Nowadays those, who work in the Internet mass media, check the data they spread. They never publish unchecked facts. The times, when journalists chased after ‘hot facts, paying no attention to their veracity, have already passed. Journalists now have already mastered the idea that one must pay for the wrong information.
I. S.: Last, but not least. Volodymir Zhurakovskiy, the head of the city militia, said at a briefing for journalists that the law-enforcing organs have not enough grounds for checking the chain of organizations subordinated to A. Zhukov.
V. Sh.:I no nothing about this remark. But if it was really made, then it was done to justify the absence of any attempts of checking.
Let us recollect the Criminal-Procedural Code in the part concerning the reasons for starting a criminal case and for starting a check. Every information, which hints that a crime was committed, must be checked. The chief militiamans remark confirms either his personal interest in the absence of the check or his low professionalism.
I want to remind one more fact. I mean opening several criminal cases in Belgium against MP Oleksandr Volkov, the head of the fraction ‘Vidrodjennia regioniv. Volkov rejected all accusations. Then why he does not want to go to any country of the European Community, where he will be immediately arrested?
A kitten on a barb
30 years ago the heart of the legendary political prisoner and nationalist Mykhaylo Soroka stopped beating. His friend Mykhaylo Goryn recollects about him.
On 17 June Mykhaylo Goryn, the head of the Ukrainian Worldwide coordination council, will be 71. This outstanding human rights protector, politician and public figure continues to build and protect Ukraine. His destiny presented him not only many years in Soviet prisons and concentration camps, but also friendship with the main partisans of the national-liberating movement. One of them was Mykhaylo Soroka.
For the first time it was Polish authorities, who incarcerated Mykhaylo Soroka (1937-1939). In 1940, after the ‘brotherly unification of the Western Ukraine with the Soviet Union, he was exiled to Vorkuta. In 1949 he returned to Lviv for short two months. Then he was exiled to Kransnoyarsk territory, where he was later tried and condemned to the death penalty, which still later was exchanged for a 25-year imprisonment.
M. Soroka died thirty years ago – on 16 June 1971 in the distant Mordovia. It happened on the eve of Goryns birthday. And those victuals that Goryn procured for his birthday party were used at the funeral one.
In what follows we present an extract of the memories of M. Goryn, which tell us about the last days of the inflexible nationalist.
-- The first day in the concentration camp. We, myself and Mykhaylo Osadchiy, were convoyed somewhere. We so a man, who went in the opposite direction: the head was closely shaved, eyes were blue with red veins, very fatigue eyes. He went somewhat strangely, as if on artificial legs. He wore a vest and his torso looked like that of a bodybuilder. Later I learned that he was a gymnast of the European level...
When in summer of 1970 I returned from the Vladimir prison to the 17 thconcentration camp, we decided to celebrate the 100 thanniversary of birth of Lesia Ukrainka. Then it was still permitted to send books to colonies, so my brother Bogdan passed me a volume her poems. The scientific conference lasted for 10 days. I chose a unique topic: ‘A philosophy of defeatism in the works by Lesia Ukrainka. Mykhaylo Soroka selected the stem report: ‘Life and creativity of Lesia Ukrainka. He did it excellently!
I have one of his notebooks. One can see which were Sorokas interests. Look, whim he quotes: Kuprin, Chernyshevskiy, Kipling, Shevchenko, Rylskiy. Young nationalists used to say then: ‘What, to read Rylskiy? But he is a communist dog!. The spiritual world of this man was wide and rich. He was not a narrow-minded nationalist. There were both Kipling and Chernyshevskiy, but the quotations were, in the final count, aimed at the confirmation of the Ukrainian national idea.
We were very close friends. Every evening we strolled around our barrack and debated on the liberating movement. For several months we strolled, we talked, our souls blending together. By education he was an architect, he drew well and gifted pictures of various birds to my little daughter Oksana. I was thinking all the time: ‘If our resistance were headed by him, and not by Stepan (Bandera. – Editors note), then the resistance would be much more efficient. He would ennoble it by his personality. The spiritual level of the leader determines the spiritual level of all the movement. Relations between people, the ethical level of these relations, nobleness of relations – may be either developing or trampled. I was enchanted with this man.
It should be said that many people in the colony did not know what to do after work, maybe to play chess. It was difficult to co-exist with them. But we, after coming from work threw ourselves at books: read, made notes, debated. These people, who did not know to what apply their intellect, got into brawls and similar ‘occupations. Mykhaylo was not only the umpire in such conflicts, but also a teacher of normal human relations.
Mykhaylo Soroka sympathized with captives and tried to protect them from degrading. At nights I lectured him on the psychology of human relations, gave him books on physiology and psychology. On the basis of such literature he wrote an interesting brochure about the conflicts among prisoners. As far as I remember, Ivan Kandyba must have a copy. The brochure begins approximately in such a way: ‘I see a picture: a young man stripped to the waist is washing. His colleague, a political prisoner, is standing at his side. The former, excited with cool water in the hot weather, throws some water on his neighbor. The latter exploded. Why did he explode, why he did not see a joke? Why has he such a strained psyche? This is typical: a captive must behave so that no one would thin of aggression...
In the colony it was forbidden to grow anything except flowers. Yet Mykhaylo planted lettuce and parsley in between. Sometimes we walked along flowerbeds, picking out edible plants and prepared a tin basin of salad. He invited all the Ukrainian community of the colony, about 50 men. We set around the table, ate the salad and talked.
Mykhaylo told that he already had a heart-stroke. Sometimes he showed us gymnastic tricks, to demonstrate what he could. At 60 he was fit as a flea.
On 16 June 1971 after the supper we again went for a walk. This was a path not longer than ten meters between the barrack and the barbed wire fence. It was our usual route. There was a sloping descent, and Mykhaylo told me to go ahead. I asked him what was the reason. He answered that for him it was somewhat difficult to go down the slope. I walked slowly and knew in which place he would catch up with me. But Mykhaylo did not catch up with me. I look behind and saw him bent. I helped him to lie down and ran for a male-nurse. The male-nurse refused to go to the sick, since he had some conflict with Mykhaylo. I was shocked: Mykhaylo was like father to me. I took a broom... Maybe Mykhaylo would die in the colony some other time, but this time his death was accelerated. The male-nurse, who knew nothing about medicine, said that must press on his chest for artificial respiration. There was a convict, Gavrilov by name, who had been a submarine captain, wrote a book and got 12 years for his literary inclinations. That Gavrilov sat down on Mykhaylos knees and began to do the artificial respiration. He took Mykhaylos wrists and put aside his arms for several times. Then a tear rolled on Mykhaylos cheek and he died. We promoted his death. If we did not disturb him, if we left him in peace and gave him some proper medicine, Mykhaylo would, may be, stay alive...
I am convinced that people anticipate their death. There was one Vasyl Pirus, an OUN soldier, a very strong, but somewhat rude man. On the same day I and Mykhaylo we walking along the path and we saw a little kitten hanging on the barbed wire, such a kitten as big as a mitten. It got on a barb and wounded its side, its blood was streaming. Mykhaylo cried out: ‘Look, blood, blood! Pirus reacted: ‘Let it be blood! Have not you seen blood? I sensed that something was wrong with Mykhaylo: he usually was a very quite man, but this time he exploded. That was the last day of his life...
When we brought Soroka to the medical aid room, Gryts Pryshliak (also from the OUN) took a volume by Shevchenko and read it like a psalm-book. We draw him away... Next day a coffin was brought, and Mykhaylo was brought to the coffin. We did not go to work, and nobody punished us for it.
Recorded by Vakhtang Kipiani and Vasyl Ovsienko
P.S. On the place, where Mykhaylo Soroka had died, Ukrainian convicts planted a dog rose and some flowers. One day it appeared that the bush had disappeared and the flowers had been trampled. It was made by the order of captain Zinenko, also a Ukrainian, who made hell of Chornovils and Stuss lives. He ordered to some criminals to dig out the dog rose and to plant it in front of the administration building. In such a way the colony administration tried to erase the memory from the place, which became sacred for Ukrainians.
Monthly bulletin Prava Ludyny (Human rights), 2001, №06