“Prava Ludiny” (human rights) monthly bulletin, 2005, #09
Memorandum of the Kharkiv Human Rights Group with regard to the threat posed by the “political reform Open letter from the Kharkiv Human Rights Group regarding the threat posed by the “political reform” The “Maidan” Alliance is turning to the President of Ukraine demanding that he put an end to the “blue and pink” counter-revolution The Regime must not stop reforms in the field of human rights A Constitutional and legal analysis of Leonid Kravchuk’s statement regarding impeachment Analysis of Viktor Yushchenko’s appointment of acting Prime Minister and Head of the Security Service The right to a fair trial
Conclusion of the Committee on Issues of Legal Policy: “Military courts should be liquidated gradually”. Planned amendments to the Ukrainian Constitution to bring it into compliance with the Statute of the International Criminal Court Access to information
The level of transparency in State executive bodies The President has yet again been set up. Prohibition of discrimination
Observance of labor rights in Ukraine today and the role of criminal law in defending these rights Civic society
Maidan demands that it be served! Deported peoples
I am happy because it has been my good fortune to be in charge of a worthy task!
Politics and human rights
Memorandum of the Kharkiv Human Rights Group with regard to the threat posed by the “political reform
27 September 2005, the Kharkiv Human Rights Group (KHPG) issued an “Open letter regarding the threat of ‘political reform’ in Ukraine. Today, in this “Memorandum” we will attempt to go somewhat deeper into the arguments presented succinctly in the open letter. In contrast to previous publications of the KHPG about the ‘reform’, here we propose to consider its basic conception and the attempts at implementing it on the formal judicial, purely procedural level.
It is clear that a vote on introducing amendments to the Constitution of Ukraine adopted in 1996 may be held solely in accordance with the procedure set down in Articles 154 – 159 of the Constitution. This procedure comprises the content of Section XIII of the Constitution (the Main Law) and is protected by the entire constitution-based legal system. One need only refer to the fact that on the basis of Article 156 of the Constitution of Ukraine any modification whatsoever of Articles 154 -159 would need to be approved by a mandatory All-Ukrainian referendum. Such procedure in the purely judicial sense testifies to the absolute nature of the according constitutional procedure, the general inviolability of the judicial procedural form.
It should also be noted that such procedure is envisaged by the best constitutional models current in the world. The Constitution is a document which, as well as liberty, safeguards the stability of the legal system as a whole, and the latter, in its turn, begins with the principle of the inviolability of the constitutional form, of the material and procedural norms of its text. The inviolability of the constitutional form is a crucial component part, the condition of its legal content, while the procedural norms of the Constitution are the main judicial guarantees of the values enshrined in its basis. In awareness of this, we would stress that a “package” vote on a draft law introducing amendments to the current Constitution of Ukraine was and remains unacceptable from a judicial point of view.
The possibility of voting in constitutional amendments as part of a “package”, that is, together with amendments to any other parts of national legislation is never mentioned either in the Constitution or in Ukrainian legislation in general. Nor is this by chance since “package” voting is a classic example of “linked” voting or “a vote on certain conditions” (it is no accident that two questions may not be combined in one point of a referendum). Such voting means that the expression of will with regard to one normative act in the “package” version is strictly linked with analogous (in the sense of the choice between “for” or “against”) voting in connection with another normative act. From the psychological point of view, this denotes direct interference with the motivational part (phase) of an individual’s act of will. Expressing this more simply, each parliamentarian when voting, while having the duty to define his or her position and think about one thing, needs at the same time to take into consideration something quite separate and different.
In the case of the Ukrainian vote on constitutional amendments, the situation is made worse by the fact that this “package” combines draft laws of different judicial force, that is, normative acts which belong to fundamentally different legal registers. As a result, the changes to some norms of current legislation are conditional upon amendments to the entire constitutional normative mass, while the change to a significant group of norms at a constitutional level are dependent upon amendments to provisions of normal (ordinary) law. We are forced to acknowledge that in the given case a procedural move was made which falls under the definition of a legally prohibited reverse: the fate of norms of current legislation determines the fate of norms of the Constitution of Ukraine. This means that the content of a norm of a lower judicial level potentially (before the voting itself) and kinetically (during the actual voting) used the content of a norm at a significantly higher judicial level.
From the formal logic point of view this means that the attitude of parliamentarians to the norm of a lower judicial force not only could optionally influence, but directly determined their attitude to a norm of the highest judicial force. The opposite side of the coin was also present, however since this was, from a judicial point of view, more acceptable (correct), we will not comment on this aspect. In an organic legal system an inadmissible direction was thus taken: a norm of current legislation (the amendment to the law on elections) a priori determined the content of a constitutional norm. That is, the normative nature of an ordinary, tactical and operational level governed the normative-axiomatic system of law (the Constitution being a collection of legal axioms). From the point of view of cybernetics, this could be compared with the artificial creation of information noise when taking fateful managerial decisions. As a result, the “package” voting has not clarified, as is demanded by the fundamental principles of constitutional procedure, but blurred the consciousness of State Deputies (parliamentarians) when voting on issues of truly general State significance and content.
One of the fundamental features of the Ukrainian constitution-based legal system lies also in the fact that the possibility is not recognized for discretionary powers for State executive bodies and bodies of local self-government. On the basis of Article 19 of Constitution of Ukraine, “State executive bodies and bodies of local self-government, and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”. This automatically implies a prohibition on a higher body of legislative power – the Verkhovna Rada (parliament) of Ukraine – attempting any free modifications of strict constitutional, as well as other legal procedures. Unfortunately, just such a modification (a spontaneously made reconstruction) of constitutional procedure can be seen in the “package” voting.
Moreover, as is indicated in Article 157 of the Constitution, „The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. As a teleological interpretation (according to its designated purpose, functional role) of this norm shows, the Constitution of Ukraine may not be amended (even where formal procedure is adhered to) in conditions where the public situation is excessively impassioned, turbulent and emotionally unstable. The prohibition on introducing amendments to the Constitution of Ukraine during such a period should in no way be understood in a formalistic sense. The given prohibition is defined not only by the letter, but also by the spirit of the Constitution, as is most clear to constitutional judges. Thus, in order to introduce constitutional amendments, relative social harmony, reason and civic quiet are needed. The “package” vote, in contrast, took place at the height of civic confrontation, in conditions of revolution, albeit revolution where no blood was shed.
All of the above convinces us that the “package” vote on introducing amendments to the Constitution was an overt and flagrant violation of the Constitution of the Ukraine, in particular its Section XIII (Articles 154 – 159). Organic constitutions are usually “wise” legal documents, which envisage in advance the existence of the danger of political challenges which can provide temptation for the governing elite. As the oracle in the science of management, Peter Drucker, once commented, political ambitions are boundless and are capable of destroying the character of any person. Exceptions are conceivable, but they only serve to confirm the rule. The temptation to change the established order of things is one of the typical features of human nature. It is specifically this temptation which, by definition, constitutional order safeguarded by guarantees of stability is called upon to counteract. Any other way of thinking on this would be a betrayal of the universal principles of constitutionalism.
Ukraine’s democracy is at an early stage, and its state of political stability can easily be shattered. The newly-elected President of Ukraine proclaimed as a political objective Ukraine’s becoming part of a united Europe. Ukraine’s European choice was supported in December 2004 by the people on Maidan. However, the contemporary European way stipulates not only a well-developed, but also a crystallized, legal awareness. All of this would be better to understand here at home ourselves, than to read it between the lines of the latest conclusions from the Venice Commission. Unfortunately the constitutional reform, just as the overall style of its introduction in Ukraine, does not yet bring us closer, but on the contrary distances us significantly from Europe.
In our opinion, these circumstances demand from the President that he involve the Constitutional Court in an analysis of the situation. The issue which is now before him would seem specifically from the judicial point of view entirely transparent. The President of Ukraine as Guarantor of the National Constitution must appeal to the Constitutional Court to provide interpretation of the norms of Section XIII (Articles 154 – 159) of the Constitution. That is, it is necessary to ascertain from the Court whether the possibility of the recent “package” vote held can follow from the constitutional procedure for introducing amendments to the said Constitution. It would seem that adherence to the canons of the rule of law would make the answer to this question unambiguously clear.
[1] Prepared by KHPG’s constitutional expert, V. Rechytsky
Open letter from the Kharkiv Human Rights Group regarding the threat posed by the “political reform”
The Kharkiv Human Rights Protection Group (KHPG) has on several occasions commented on the events around the “political (constitutional) reform”, providing analysis of both its essence and the manner in which it has been introduced. KHPG’s constitutional experts have, in particular, demonstrated that the Draft Law which was voted on as part of the “package” (including amendments to electoral legislation) of 8 December 2004 needs to pass through the necessary review procedure in the Constitutional Court of Ukraine. We were expecting a constitutional application to the Constitutional Court by the Ukrainian President or from a group of 45 State Deputies, and a final vote which should have thrown out this both politically and legally seriously flawed creation. However this has not happened. The former opponents of the “reform” have turned into its supporters, hoping for future victory in the parliamentary elections and that their leader will be given the post of Prime Minister with presidential powers. The President whom we were relying upon as Guarantor of the Constitution, has signed a memorandum with Viktor Yanukovych, the first point of which concerns the introduction of this political reform.
Not wishing to raise the level of their political culture to the demands at least of the current Constitution, the present political elite are stubbornly endeavouring to lower the level of constitutional regulation to their muddled and short-sighted pseudo-democratic conceptions which yet again demonstrate concern for short-term political interests as opposed to respect for the rule of law. It would appear that none of them are concerned that this “reform” would create an illogical competition between the highest State posts of President and Prime Minister within one – executive – branch of power, effectively tearing apart the unity of Ukrainian foreign and domestic policy, encroaching upon the principle of collective responsibility of the Cabinet of Ministers and making a mockery of the principle of division of branches of power. They do not appear to care that the “reform” introduces the principles of the worst kind of political collectivism, transforming parliamentary Deputies into voting machines, entirely dependent on the will of party bosses and leaders of factions, manifestly increasing the risks of parliamentary-presidential confrontation and significantly strengthening the direct organizational dependence of parliament (the Verkhovna Rada) on the will of the President. Nor do they care that the reform will be an obstacle to creating a strong and independent judiciary, returning the old Soviet-style general surveillance into the hands of the Prosecutor’s offices and thereby once again running counter to the commitments Ukraine gave in joining the Council of Europe. Further arguments in support of this position can be found in the conclusions of KHPG’s constitutional experts:
KHPG believes that it has a duty to once again warn that the implementation of this so-called political reform would be very likely to have disastrous implications for the future of our country. The “reform” poses a real threat to State independence and sovereignty of the people. Its introduction will bring about a sharp increase in the already significant level of corporatism in the Ukrainian political system. The influence of self-seeking interests of powerful financial-industrial groups on parliament will increase and take on a permanent, systemic nature.
The political reform, changing the constitutional powers of the President “in midstream” is undoubtedly a violation of the principle of his legitimization via the elections (this is stressed, in particular, in the open letter of the “Maidan” Alliance “In defence of the sovereignty of the people and the Constitution”, which was signed by around a thousand people and sent to the President on 16 September (cf. http://khpg.org/1127812713). We would, yet again, stress that a “package” vote on introducing amendments to the Constitution is absolutely unacceptable since such a means of expression of will is a classic example of voting (expressing one’s will) “on certain conditions”. It would seem that, aside from the Ukrainian courts, this is understood by any constitutional or supreme court with a basic level of professionalism in the world. Voting for a document of strategic significance, the State Deputies should have been guided by purely constitutional and long-term principles, and not by tactical considerations arising exclusively from the specific circumstances of December 2004. “Package votes” are not allowed by either current legislation, or even by Section XIII of the Constitution of Ukraine. They also fail to comply with Article 19 of the said Constitution which prohibits bodies of State power, and therefore the Ukrainian parliament, from undertaking any free modifications of key judicial procedures, separately set down and safeguarded by special guarantees at the highest level!
We are firmly convinced that the Ukrainian political elite must after all realize, and now, what kind of hybrid distortion they are planning to create, and to stop this process. Is it really impossible to find 45 Deputies in the Verkhovna Rada (Parliament) who feel their responsibility before the people? Can the President really not understand that agreeing to this reform will negate his own victory at the elections of last year and will transform him into the destroyer of constitutionalism and democracy in Ukraine? Is the Constitutional Court of Ukraine really unable to understand legal axioms? Can the supporters of parliamentary republicanism, who are in favour of the “reform” purely as a result of their abstract support for the principles and benefits of the parliamentary system, not see that the implementation of this dubious and risky idea will distance them still further from parliamentary democracy, as well as generally distancing the people from having any influence on those in power?
In our opinion, Ukrainian politicians and lawyers still have the chance to avoid being totally discredited and to stop this shameful and hypocritical political action. For this they need only to somewhat subdue their ambitions as regards power and before it is too late to recall good common sense.
We are sending this appeal in the form of an open letter and call on all concerned organizations and individuals to add their voice.
Yevhen Zaharov
Co-Chairperson of the Kharkiv Human Rights Protection Group
Chairperson of the Board of the Ukrainian Helsinki Human Rights Union
Member of the Board of the International Society «Memorial»
Irina Rapp
Co-Chairperson of the Kharkiv Human Rights Protection Group
Vsevolod Rechytsky
Constitutional Expert for KHPG
Oleksandr Severyn
Legal Adviser to the “Maidan” site
The “Maidan” Alliance is turning to the President of Ukraine demanding that he put an end to the “blue and pink” counter-revolution
The “Maidan” Alliance has sent an open letter to the President of Ukraine regarding the need to reverse the so-called “political reform”. The letter in particular stresses that the Medvedchuk-Moroz-Symonenko “reform”[1] “not only does not comply with, but in fact runs counter to the vector of the expression of the people’s will which was focused on electing the Head of the State for the period set out in the Constitution with those powers which are stipulated in the same Constitution”, and therefore “it will only be possible to hold a discussion about changing the powers of the President with regard to the new term of the next Head of the State”. The open letter, which via the website “Maidan”, was signed by 933 citizens, was sent to Viktor Yushchenko in accordance with the Constitution of the Ukraine and the Law of Ukraine “On appeals from citizens”. “Political expediency, - the letter stresses, - must not take precedence over the expression of the people’s will and the will of the people must not become the object of behind-the-scenes deal-making between groups of individuals, albeit those entrusted with Deputy mandates”.
The citizens who have signed our open letter demand that their President uses all necessary judicial and political means to protect the current Constitution and, at the same time, to begin the process of preparing a truly democratic constitutional reform. The full text of the open letter can be found on the website: We provide the text of this letter below:
http://www2.maidan.org.ua/news/view.php3?bn=maidan_petit&key=1113337121&trs=.(in Ukrainian)
To the President of Ukraine
V. A. Yushchenko
01220, Kyiv-220, Bankova Street, No. 11
OPEN LETTER
16 September 2005
Your Honour, Viktor Andriyevych,
The Ukrainian people, a majority of whom having expressed their will at the last elections and having defended their choice on Maidan, fulfilled, as the sole bearers of sovereignty in the country their sacred constitutional right to elect their President, and they chose you.
By electing you President and thus defending not only your, but their own victory, the citizens of Ukraine have possibly for the first time in the history of the State filled with real meaning the constitutional provisions regarding the sovereignty of the people and the free expression of the people’s will (Article 5, 69 and 71 of the present Constitution of Ukraine). They elected their President for the term and with the powers outlined by the Basic Law.
Unfortunately a side effect of the election process which took place in bitter confrontation with a system which had essentially been built on sidestepping the law and on anti-democratic principles was, as a result of political deal-making, the Law of Ukraine from 08.12.04 №2222-IV «On introducing amendments to the Constitution of Ukraine». An analysis of this legislative act from a judicial, as well as a general civic standpoint, compels us to state the following: The Draft Law №4180 has been transformed into a Law with fundamental procedural infringements: the text which was voted on is significantly different from that which passed through the review stage in the Constitutional Court, although in such a case, in accordance with the Basic Law, a second review of the altered draft law is required by a body of constitutional legal procedure.
Law №2222-IV is, in our opinion and according to the conclusions of many leading specialists, inherently contradictory and does not meet the demands of the current stage of development of the Ukrainian State, even more so considering the European prospects which have opened up for Ukraine since you were elected to the office of President.
Finally, and most importantly, Law №2222-IV not only does not comply with, but in fact runs counter to the vector of the expression of the people’s will which was focused on electing the Head of the State for the period set out in the Constitution with those powers which are stipulated in the same. This needs to be stressed in particular. In accordance with Article 103 of the Constitution, the President of Ukraine is elected by the people for a period of 5 years, with the powers of the President clearly set out, moreover, in Article 106. It should be noted that in Paragraph 2 of Article 1 of the Law of Ukraine “On the Presidential Elections” it is also stipulated that the President is elected for the term set out in the Constitution. The only possible conclusion from this is unambiguous both legally and politically: by electing a President of Ukraine the people vest in him or her for a period of 5 years the range of powers set down in the Constitution current at the time of the expression of the people’s will. Any other interpretation, even if one moves away from formal jurisprudence, has quite simply nothing in common with democratic principles. Accordingly, the State Deputies who voted for the “political reform” did not have the legal, and still less the moral right to interfere in such a manner at the level at which the people elect, in accordance with constitutional norms, their choice for Head of State. Such interference directly contravenes the principle of the sovereignty of the people and the exclusive right of the people themselves to establish their constitutional system. Law No. №2222-IV, furthermore, by effectively introducing the possibility of suspending a part of the powers of the President early, runs counter to Article 108 of the Constitution which, in speaking only of the possibility of early suspension of all powers (as a whole package), does not envisage anything of the kind. It will only be possible to hold a discussion about changing the powers of the President with regard to the new term of the next Head of the State.
Political expediency must not take precedence over the expression of the people’s will and the will of the people must not become the object of behind-the-scenes deal-making between groups of individuals, albeit those entrusted with Deputy mandates.
Mr President, your Honour!
In your inaugural speech on Maidan Nezalezhnosti [Independence Square], you stated, in particular, that lawlessness must not be the norm in a state and that you envisage Ukraine as a state governed by the rule of law. At the end of last year it was the people themselves who defended the rule of law. The turn is now yours as Guarantor of the Constitution. We do not dispute the expediency of introducing amendments to the present Constitution, however we are firmly convinced that such amendments, aimed at providing maximum safeguards for civil rights and freedoms, as well as the effective functioning of the State apparatus within the context of Ukraine’s European prospects, must be the result of public social debate and must be carried out according to legally impeccable procedure. Otherwise the sovereignty of the people will be trampled, the principle of the rule of law denied and the legitimacy of the Basic Law will be for ever placed in question.
In view of the above, we are turning to you and would ask you to take all necessary judicial and political means to protect the current Constitution and, at the same time, to begin the process of preparing a truly democratic constitutional reform.
With sincere respect,
The “Maidan” Alliance
12-04-2005
[1] This “reform” was part of a package of amendments to laws passed on 8 December 2004. The package also included electoral changes considered vital to counter the vote rigging that had totally invalidated the results of the second round of voting in the Presidential elections. The constitutional “reforms” were pushed by V. Medvedchuk, Presidential Administration Chief of Staff under Kuchma, O. Moroz, Leader of the Socialists and P. Symonenko, leader of the Communist faction.
The “Maidan” Alliance has sent an open letter to the President of Ukraine regarding the need to reverse the so-called “political reform”. The letter in particular stresses that the Medvedchuk-Moroz-Symonenko “reform”[1] “not only does not comply with, but in fact runs counter to the vector of the expression of the people’s will which was focused on electing the Head of the State for the period set out in the Constitution with those powers which are stipulated in the same Constitution”, and therefore “it will only be possible to hold a discussion about changing the powers of the President with regard to the new term of the next Head of the State”. The open letter, which via the website “Maidan”, was signed by 933 citizens, was sent to Viktor Yushchenko in accordance with the Constitution of the Ukraine and the Law of Ukraine “On appeals from citizens”. “Political expediency, - the letter stresses, - must not take precedence over the expression of the people’s will and the will of the people must not become the object of behind-the-scenes deal-making between groups of individuals, albeit those entrusted with Deputy mandates”.
The citizens who have signed our open letter demand that their President uses all necessary judicial and political means to protect the current Constitution and, at the same time, to begin the process of preparing a truly democratic constitutional reform. The full text of the open letter can be found on the website: We provide the text of this letter below:
http://www2.maidan.org.ua/news/view.php3?bn=maidan_petit&key=1113337121&trs=.
To the President of Ukraine
V. A. Yushchenko
01220, Kyiv-220, Bankova Street, No. 11
OPEN LETTER
16 September 2005
Your Honour, Viktor Andriyevych,
The Ukrainian people, a majority of whom having expressed their will at the last elections and having defended their choice on Maidan, fulfilled, as the sole bearers of sovereignty in the country their sacred constitutional right to elect their President, and they chose you.
By electing you President and thus defending not only your, but their own victory, the citizens of Ukraine have possibly for the first time in the history of the State filled with real meaning the constitutional provisions regarding the sovereignty of the people and the free expression of the people’s will (Article 5, 69 and 71 of the present Constitution of Ukraine). They elected their President for the term and with the powers outlined by the Basic Law.
Unfortunately a side effect of the election process which took place in bitter confrontation with a system which had essentially been built on sidestepping the law and on anti-democratic principles was, as a result of political deal-making, the Law of Ukraine from 08.12.04 №2222-IV «On introducing amendments to the Constitution of Ukraine». An analysis of this legislative act from a judicial, as well as a general civic standpoint, compels us to state the following: The Draft Law №4180 has been transformed into a Law with fundamental procedural infringements: the text which was voted on is significantly different from that which passed through the review stage in the Constitutional Court, although in such a case, in accordance with the Basic Law, a second review of the altered draft law is required by a body of constitutional legal procedure.
Law №2222-IV is, in our opinion and according to the conclusions of many leading specialists, inherently contradictory and does not meet the demands of the current stage of development of the Ukrainian State, even more so considering the European prospects which have opened up for Ukraine since you were elected to the office of President.
Finally, and most importantly, Law №2222-IV not only does not comply with, but in fact runs counter to the vector of the expression of the people’s will which was focused on electing the Head of the State for the period set out in the Constitution with those powers which are stipulated in the same. This needs to be stressed in particular. In accordance with Article 103 of the Constitution, the President of Ukraine is elected by the people for a period of 5 years, with the powers of the President clearly set out, moreover, in Article 106. It should be noted that in Paragraph 2 of Article 1 of the Law of Ukraine “On the Presidential Elections” it is also stipulated that the President is elected for the term set out in the Constitution. The only possible conclusion from this is unambiguous both legally and politically: by electing a President of Ukraine the people vest in him or her for a period of 5 years the range of powers set down in the Constitution current at the time of the expression of the people’s will. Any other interpretation, even if one moves away from formal jurisprudence, has quite simply nothing in common with democratic principles. Accordingly, the State Deputies who voted for the “political reform” did not have the legal, and still less the moral right to interfere in such a manner at the level at which the people elect, in accordance with constitutional norms, their choice for Head of State. Such interference directly contravenes the principle of the sovereignty of the people and the exclusive right of the people themselves to establish their constitutional system. Law No. №2222-IV, furthermore, by effectively introducing the possibility of suspending a part of the powers of the President early, runs counter to Article 108 of the Constitution which, in speaking only of the possibility of early suspension of all powers (as a whole package), does not envisage anything of the kind. It will only be possible to hold a discussion about changing the powers of the President with regard to the new term of the next Head of the State.
Political expediency must not take precedence over the expression of the people’s will and the will of the people must not become the object of behind-the-scenes deal-making between groups of individuals, albeit those entrusted with Deputy mandates.
Mr President, your Honour!
In your inaugural speech on Maidan Nezalezhnosti [Independence Square], you stated, in particular, that lawlessness must not be the norm in a state and that you envisage Ukraine as a state governed by the rule of law. At the end of last year it was the people themselves who defended the rule of law. The turn is now yours as Guarantor of the Constitution. We do not dispute the expediency of introducing amendments to the present Constitution, however we are firmly convinced that such amendments, aimed at providing maximum safeguards for civil rights and freedoms, as well as the effective functioning of the State apparatus within the context of Ukraine’s European prospects, must be the result of public social debate and must be carried out according to legally impeccable procedure. Otherwise the sovereignty of the people will be trampled, the principle of the rule of law denied and the legitimacy of the Basic Law will be for ever placed in question.
In view of the above, we are turning to you and would ask you to take all necessary judicial and political means to protect the current Constitution and, at the same time, to begin the process of preparing a truly democratic constitutional reform.
With sincere respect,
The “Maidan” Alliance
12-04-2005
[1] This “reform” was part of a package of amendments to laws passed on 8 December 2004. The package also included electoral changes considered vital to counter the vote rigging that had totally invalidated the results of the second round of voting in the Presidential elections. The constitutional “reforms” were pushed by V. Medvedchuk, Presidential Administration Chief of Staff under Kuchma, O. Moroz, Leader of the Socialists and P. Symonenko, leader of the Communist faction.
The Regime must not stop reforms in the field of human rights
We consider that, in order to ensure the continuation of democratic development and to guarantee the implementation of fundamental rights and freedoms, the present regime must now, even before the elections, take real steps towards achieving fundamental changes, in particular the following:
1. It is crucial that investigations are immediately begun into the activity of the organizers of mass violations of human rights which took place in the past, especially those during the elections. Despite the fact that a large number of those who carried out the activities have been punished (with over 700 criminal investigations launched against over 6 thousand people), as of today not one case against the organizers of the vote rigging of the presidential elections has ended in a court conviction. Nor have those who ordered other notorious crimes, in particular, the murder of Georgy Gongardze, been uncovered. It is similarly important before the next elections to complete the investigation into past economic crimes and to direct each such case to the court in order to eliminate speculation as to the existence of political repression in the country. Moreover, law enforcement bodies should not make selective use of criminal legislation.
2. There should be immediate declassification of illegally classified legal acts of the President of the Ukraine, the Cabinet of Ministers of Ukraine, the General Prosecutor and other executive bodies which are hidden under the illegal and unconstitutional stamps “Not to be printed”, “Not to be published” and “For official use only”. (OU)”. Since the new regime came to power, 43 Decrees have been issued by the President of Ukraine with the illegal stamp “Not to be printed”, while there have been 16 decisions of the Cabinet of Ministers of Ukraine either with the stamp “OU” (3 decisions) or “Not to be published” (13 decisions). In the past such acts concealed misuses of power and “buying favours” in the form of various supplementary benefits to State officials from whom the taking of this or that decision was expected at a later stage.
3. It would be expedient to reassess the amendments adopted to the Constitution since these, in our view, are contradictory, jeopardize the effective functioning of power and reduce the safeguarding of human rights and fundamental freedoms. Unfortunately, the conclusions of the Constitutional Court of Ukraine have not resolved this problem.
4. Amendments are urgently needed to the Law of Ukraine “On the Constitutional Court of Ukraine” in order to provide citizens with the right to make individual complaints about the unconstitutionality of legal acts of executive bodies, this being a basic safeguard of the observance of constitutional rights and freedoms in democratic countries. It should be noted that the regime is even avoiding discussing this issue.
5. New Draft versions of a Criminal Procedure Code of Ukraine and of a Penal Code of Ukraine are required based on constitutional guarantees and international standards of protection of human rights, as well as on positive international practice. The versions of these codes presently in force provide unlimited powers to law enforcement bodies, limit the right to protection, the right to a fair court review and other rights and freedoms. The changes made in certain posts in the law enforcement bodies have not stopped and will not stop their systemic abuse, the latter continuing at present, albeit on a smaller scale.
6 It is vital to begin real public control over the activity of law enforcement bodies of Ukraine, as well as public monitoring of places of deprivation of liberty. We welcome the efforts of the Minister of Internal Affairs with regard to beginning to resolve the issue of preventing torture and cruel treatment in police units, in particular, through the creation of mobile groups for monitoring the situation. However, we would note that in this direction efforts need to be increased. Unfortunately, we must note that the new people who have taken over managerial positions in the State Penal Department are taking steps which only worsen the situation and distance the public from the reform process of the penitentiary system.
7. It would be expedient for the President and the Verkhovna Rada to resolve the issue concerning the creation of public television and radio broadcasting in Ukraine on the principles of State ownership and public control. Unfortunately, up to now all efforts by the public to introduce this institution have met with a lack of understanding of the issue by certain executive bodies (the President, the Council of National Security and Defence, the State Committee for Television and Radio, etc) and State officials who often, moreover, manipulate information about the role of State television in Europe.
8. The Part of Order № 122 of the State Committee for Communications from 17 June 2002 which imposes the obligation upon Internet providers to install equipment for surveillance over Internet users, including providing access to their electronic mail should be immediately cancelled. On the basis of this, a system of unaccountable and illegal surveillance of individuals by the Security Service of Ukraine has been introduced. All criminal cases involving wire tapping of prominent politicians and businesspeople should also be brought to completion. It should be noted that Ukraine remains a leader in the number of permits for wire tapping issued.
We would also note that human rights activists are baffled by such initiatives from the regime which are unacceptable in democratic countries as the following: the introduction of new plastic passports where under one number it will be possible to collect and receive all information about an individual this establishing a mechanism for total control over each individual which is typical of totalitarian countries;
the attempt of executive bodies to control the Internet by trying to introduce registration of information resources and establishment of control over the domain .ua;
the ban on journalists and the mass media commenting on the public appearances and actions of politicians during election campaign which will, according to the new law, be treated as political advertising.
„Dekuchmization”, the aim of which was to avoid the “slipping back” which takes place after every revolution has not become a reality. Impassioned reporting from journalists has not dislodged the old habits of the majority of bureaucrats of the regime and it would seem that the new regime in certain aspects is turning into the successor of the Kuchma era in all its shameful practice. For this reason, the regime must continue the fundamental reforms begun even before the parliamentary elections.
Yevhen Zaharov
Chairperson of the Board of the Ukrainian Helsinki Human Rights Union
Volodymyr Yavorsky
Program Director
A Constitutional and legal analysis of Leonid Kravchuk’s statement regarding impeachment
Analysis of Viktor Yushchenko’s appointment of acting Prime Minister and Head of the Security Service
A constitutional and legal analysis of the resolution of President of Ukraine V. Yushchenko on the appointment of Yury Yekhanurov to the post of acting Prime Minister of Ukraine and I. Dryzhchany to the post of the head of the Security Service of Ukraine
Specialists in the sphere of constitutional right of Ukraine are deeply anxious about the systematic violations by the organs of state power of Ukraine of the demands of the Constitution of Ukraine, which has been vividly illustrated by the recent actions and resolutions of the President of Ukraine.
The procedure of appointment and termination of authorities of the Cabinet of Ministers of Ukraine, Prime Minister of Ukraine, ministers and other central bodies of executive power is determined by the Constitution of Ukraine, viz. Articles 106, 114 and 115.
According to item 9 of part 1 of Article 106 of the Constitution of Ukraine, “the President of Ukraine appoints the Prime Minister of Ukraine with the consent of the Verkhovna Rada of Ukraine; terminates the authority of the Prime Minister of Ukraine and adopts a decision on his or her resignation”.
In accordance with part 2 of Article 114 of the Constitution of Ukraine, “The Prime Minister of Ukraine is appointed by the President of Ukraine with the consent of more than one-half of the constitutional composition of the Verkhovna Rada of Ukraine.”
Part 5 of Article 115 of the Constitution of Ukraine reads: “The Cabinet of Ministers, whose resignation is accepted by the President of Ukraine, continues to exercise its powers by commission of the President, until a newly-formed Cabinet of Ministers of Ukraine commences its operation, but no longer than for sixty days.”
According to part 2 of Article 19 of the Constitution, “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”.
The quoted provisions of the Basic Law evidence that the Constitution of Ukraine does not contain any norms that give the right to the President of Ukraine to appoint an acting Prime Minister and to give any competences connected with forming of new composition of the government.
Thus, having declared publicly about the appointment of Yu. Ehanurov to the post of acting Prime Minister of Ukraine, the President of Ukraine has violated again the Constitution of Ukraine, the observance of which he must guarantee (for the first time the President violated the demands of the Basic Law on 4 February 2005 during forming of the government and appointment of heads of regional state administrations).
After the discharge of the government the President of Ukraine had, first of all, to order, in accordance with part 5 of Article 115 of the Constitution of Ukraine, to continue the exercise its powers, and, secondly, to submit for consideration of the Parliament the candidature to the post of the Prime Minister, independently or after political consultation. And only after the appointment by the President, with consent of the Supreme Council, of the Prime Minister the latter can submit to the head of the state the candidatures to the Cabinet of Ministers of Ukraine.
As a consequence of violation by the President of the procedure of forming of new composition of the government, stipulated by the Constitution of Ukraine, the situation has been artificially created, which can result in aggravation of the political crisis, since now there are no guarantees that the Parliament would agree to the appointment of Yu. Ehanurov to the post of the Prime Minister.
Moreover, on the same day the President went beyond his commission once more, appointing I. Dryzhchany to the post of the head of the Security Service of Ukraine. As it has been already said, according to item 10 of part 1 of Article 106 of the Constitution of Ukraine, the President of Ukraine appoints the members of the Cabinet of Ministers of Ukraine and chief officers of other central bodies of executive power only on the submission of the Prime Minister of Ukraine. Yet, since the Cabinet of Ministers, as well as the Prime Minister of Ukraine, was discharged, there was nobody to submit the candidature of I. Dryzhchany to the President for appointment to the post of the USS head.
So, the President of Ukraine, in order to guarantee the stability in the state, should have rejected O. Turchinov’s appeal about his resignation, since, in accordance with the Constitution of Ukraine, the acceptance of resignation results in the stalemate situation, when it is impossible to observe the constitutional procedure of appointment of new head of the USS until the appointment of the Prime Minister. And this process can be rather prolonged.
Viktor Kolisnyk, Doctor of Law
Fedir Venislavskiy, Candidate of Law
Viktor Kichun, Candidate of Law
Translated from http://maidan.org.ua/ ( http://maidan.org.ua/static/mai/1126284746.html)
The right to a fair trial
Conclusion of the Committee on Issues of Legal Policy: “Military courts should be liquidated gradually”.
The liquidation of military courts is a result of the coming into force, on 1 September 2005, of the Civic Procedure Code of Ukraine, which does not envisage any category of cases under the jurisdiction of military courts.
The committee considers that the following factors should be taken into consideration.
Firstly, the competence of military courts includes, along with civil cases, some categories of criminal cases stipulated by Article 36 of the Criminal-Procedural Code of Ukraine. Besides, the draft of the Criminal-Procedural Code of Ukraine, which would settle the question about the cognizance of criminal cases to military courts, is prepared now for the second hearing by the Supreme Council Committee in charge of the questions of legislative provision of law-enforcing activities.
Secondly, part 8 of the Final and transitional provisions of the Code of administrative proceedings reads that, after coming into force of the Code of administrative proceedings, military courts should complete consideration of the appeals and complaints handed and not considered before taking effect by this Code in the cases determined by Article 17 of the Code.
Thirdly, part 1 of Article 19 of the Law of Ukraine “On judicial system of Ukraine” states that military courts belong to general courts and realize justice in the Armed Forces of Ukraine and other military units created in compliance with laws.
According to items 1 and 2 of part 3 of the Final and transitional provisions of the Law of Ukraine “On judicial system of Ukraine”, “after coming into force of this Law military courts of garrisons should continue to function as local general courts, the regional appeal courts and the appeal court of the Navy – as appeal general courts”. The above-mentioned courts continue to realize justice in criminal and civil cases, as well as in the cases following from administrative-legal relations, which cases are referred to their jurisdiction by the procedural laws, in accordance with the order stipulated by law, until taking effect by the corresponding procedural laws stipulating new order of legal proceedings in compliance with this Law.
Fourthly, the question of further job placement of judges of military courts in case of their complete liquidation is not still solved.
Taking into account everything above-said, the question about the final and complete liquidation of military courts can be solved only after introduction of proper procedural codes, which would not envisage the cases cognizable to military courts.
On the basis of these arguments the Committee resolved:
1. To inform immediately the President of Ukraine and the Head of the Supreme Court of Ukraine about the situation that has formed in connection with liquidation of military courts.
2. To recommend the President of Ukraine and the Head of the Supreme Court of Ukraine to realize the liquidation of military courts stage-by-stage taking into account the regulation by procedural codes of the question of cognizance of cases to military courts.
22 September 2005
Planned amendments to the Ukrainian Constitution to bring it into compliance with the Statute of the International Criminal Court
Specialists of the Ministry of Justice of Ukraine have prepared a Draft Law “On introducing amendments to the Constitution of Ukraine” in connection with the future ratification of the Statute of the International Criminal Court, “Interfax-Ukraine” reports.
This information was given by Elena Zerkal, the head of the state department in charge of questions of adaptation of legislation.
According to her words, now the work is carried out for introduction of necessary changes into the corresponding normative-legal acts.
The agreement on the creation of permanent International criminal court was signed by 120 countries-members of the UNO in July 1998 in Roma, during the Diplomatic conference under the aegis of the UNO. On the same day the countries also approved the statute of the court – the Roman Statute.
Ukraine signed the Statute on 20 January 2000. The agreement took effect on 1 July 2002.
Zerkal tells that the court has the competence to try not states, but citizens for various serious crimes, which arouse anxiety of the international community. An individual can be brought to responsibility for a military crime, an outrage upon humanity, aggression and genocide.
The head of the department has pointed out that this international organ has jurisdiction only over the crimes committed after July 2002, that is after coming of the Statute into force.
The court considers the cases, where one or two sides are the states-participants and the accused is a citizen of a state-participant.
The court also realizes its jurisdiction in the cases, where the crime has been committed on the territory of a state-participant, or where a state, which is not a participant of the statute, decides to acknowledge jurisdiction of the court concerning a concrete crime committed on its territory or by its citizen.
Zerkal also emphasized that jurisdiction of the court did not replace the national jurisdiction, but only supplemented it. The international organ would function only if national courts would not be able or ready to realize their jurisdiction, otherwise the court has no right to interfere except for the cases passed to the it by the UNO Security Council.
The Roman Statute establishes the real international system of criminal justice for the purpose of observance of laws and impartiality in consideration of cases.
The Statute has several peculiar advantages. First of all, these are control mechanisms, meant for protection of innocent people from the ungrounded, malevolent and politically motivated criminal investigations and court persecutions.
By now the Roman statute is signed by 139 countries and ratified by 99.
14 September 2005
Translated from http://korrespondent.net/main/130607
Access to information
The level of transparency in State executive bodies
According to the provisions of international declarations, conventions and pacts, our Ukrainian Constitution and laws, everybody has the right for free search, obtaining, use and distribution of any information, which is not related to state, commercial and bank secrets, and if the rights of other persons are not violated by this.
In the framework of the project of monitoring of human rights in the Kherson region the regional organization of the Voters’ Committee of Ukraine handed, during the first half of August, 42 informational requests on 99 questions to the power organs. On the basis of this information the analytic groups of our organization had to systematize the unofficial view on the observance of human rights in the region.
We planned to obtain the data, which the power had to render us in accordance with law, but find quite different information, the information on transparency of power organs. We even managed to calculate certain coefficient of transparency of the activities of power structures.
The process of correspondence with the organs of state power lasts until now, but there are some results already, about which we want to inform. The force structures (police, prosecutor’s office, USS) turned out to be most “obscure”: they got the last place by almost all characteristics. So, the level of reaction to the requests is only about 30% (responses and considered questions), the proportion of the satisfied questions was 35%, and 45% of questions were rejected.
However, the law-enforcing organs at least tried to react to the questions put in our informational requests. The force structures, in their turn, did not hesitate to declare directly about “impossibility of rendering of information”, “confidentiality of information” and “restriction of the access to the official document with aim of provision of secrecy of investigation, fair court consideration and organization of citizens’ rights”, although sometimes one could contend with these formulations. Yet, there is the fact: only 18% of questions contained in our informational requests caused no reaction. And this, in comparison with the reaction of other groups of power organs, is the best result, although negative one. Other authorities just “did not pay attention to the requests of representatives of public.
At that the factual term of consideration of the questions by law-enforcers is 21 day (this is the period from the date of handing of a request to the date of reception of response, but not the date of its signing).
The second place from the bottom is occupied by the departments of the regional state administration, which gave answers to 6 questions out of 7 (86%), but rendered information only on 54% of questions, did not satisfy 23% and ignored 23% of questions (the proportion of “refusals” was formed “thanks to” the regional department of health protection, which did not want to communicate the statistical data on the calls of ambulance to the establishments of the closed type and on the citizens turning to medical establishments with the traumas inflicted by the officers of police and prosecutor’s office). The factual term of consideration of the requests was 15 days.
The next step of this “hit parade” is occupied by various controlling and supervision organs (inspections, sanitation centers, centers for protection of the rights of customers and businessmen, auditors, tax organs, etc.). They answered 10 requests out of 10. Although there were no refusals, one third of all questions in the requests was ignored (this index is the greatest one among all groups). The factual term of consideration of the requests was 25 days.
The full information on our requests was given only by the regional departments of ecology, land resources, press and information, protection of customers’ rights, social protection pf population and the department of internal policy of the regional state administration. We want to express our gratitude to them.
All in all, in the first half of August we sent 42 requests with 99 questions and obtained 25 responses containing answers to 54 questions, which made 60% and 55%, respectively. The average proportion of satisfied questions is 52%, the proportions of refusals and neglect were 21% and 27%; the average term of response was 20 days.
All this happened in spite of the fact that the requested information concerned only the first half of current year, and the requests were handed on behalf of the editor-in-chief of the newspaper “Vilny vybor” of the Kherson regional organization of the Voters’ Committee of Ukraine (which should cause more attentive attitude to the requests and influence the level of positive reaction).
Summing up the aforecited data, I want to point out that I am disturbed by the results, because it has become obvious again that the power wants to stay “near, but not with us”, depriving mass media and representatives of public of the possibility to communicate the “concealed information” to common citizens.
In order to “make clear” the power organs, the repeated requests and complaints were directed to the top authorities of these organs.
The President has yet again been set up.
Prohibition of discrimination
Observance of labor rights in Ukraine today and the role of criminal law in defending these rights
The right to employment, as well as other labour rights, is an inherent right like the right to life. The reality of our social-economic rights depends on the reality of this right. Being the most important social-economic rights, labour rights are regulated not only by Ukraine, but also by the entire world community. Acknowledgement and guarantees of these rights are declared in such basic international documents as the Universal Declaration of human rights and the International Pact on economic, social and cultural rights. Modification of political, economic and social conditions have resulted in the radical changes in our country. These changes concern the sphere of labor relations too. Violations of elementary rights connected with labor relations have become a usual thing. According to the statistics of the International labor organization, four out of five Ukrainians consider themselves to be poor and do not hope to break loose from poverty until their death. 80% of Ukrainian citizens believe that they have no access to the satisfactory medical service, 40% of workers have not obtained their salaries during past three months. One should point to the noticeable growth of the proportion of labor conflicts in the civil proceeding. So, in 1996 the number of labor offences was about 10000, and in 2000 this number was more than 243000. Increase of the number of violations of labor rights in Ukraine is also confirmed by the following data: in 1996 one violation of labor rights occurred for 2500 workers; in 2000 this index became one violation for 90 workers. The analysis of court statistics of civil cases in the sphere of protection of labor rights allows to draw the conclusion that the majority of claims connected with labor relationships form two categories of cases:
1) not-payment of salaries – this category of cases makes, in the past years, the lion’s share of all labor conflicts;
2) illegal dismissals – although this category is not so popular as the previous one, the damage is inflicted directly to enterprises; in particular, in 2000 the damage was 5.5 million hryvnas and in 2001 it increased to 5.97 million.
It should be noted that the official statistics mainly reflects the violations of labor rights at state enterprises. Yet, this does not mean that the problem of protection of labor rights of citizens does not exist at private enterprises. The number of violations at these enterprises is much greater, although they are not so obvious. So the organs of the Ministry of Justice disclosed the facts, when the employers in small-scale and middle-scale business did not conclude not only collective, but even personal contracts with the hired workers. The workers are hired on the basis of oral agreements, no records on the job are entered into the work-books, salary is given not through a pay-roll, but personally (payment for one workday is 5-10 hryvnas in towns and up to 5 hryvnas in villages). Such workers even do not get the minimal salary envisaged by law, although they work for 10-12 hours per day.
However, even the statistical data, which we have, confirm the essential increase of the number of violations in the sphere of labor relations. So, in accordance with a report of the Minister of labor and social policy, during 2001-2002 66 thousand enterprises were checked in Ukraine, where 224 thousand violations were revealed.
This situation, dangerous for our country, is caused by a series of reasons and preconditions. One of them is the fact that the Code of laws on labor, adopted on 10 December 1972, acts already for more than 30 years. It is obvious that principal political and social-economic changes have occurred during these years. The life demanded introduction of changes and amendments to the Code of laws on labor. During the 30-year period more than 600 such changes have been introduced in the Code. The most essential alterations were made to the basic sections of this document, such as: collective agreement, labor agreement, rest period, labor protection, individual labor agreement, trade unions and participation of workers in management of enterprises, establishments and organizations.
Yet, the operating code, even with the changes and amendments, does not meet in full measure the political, economic and social realities, it does not take into consideration, and sometimes even contradicts to the norms contained in a number of new laws, in particular, the norms on remuneration of work, leaves, collective contracts and agreements, order of settling of collective and labor conflicts, insurance, employment of population, trade unions, unions of employers, etc. In this connection the question about the development and adoption of the new code of laws on labor becomes very urgent.
It is noteworthy that, along with the absence of modern legislative base and efficient control by the state over the observance of labor laws, there exists another very important reason of violation of labor rights of citizens: unwillingness of employers, especially private entrepreneurs, to obey the operating laws. The wish to obtain super-profits makes an employer to violate the rights of his workers. It is possible, first of all, because of the general economic state in Ukraine and the mass unemployment, which makes people agree to any work under any conditions. According to the official data, the registered level of unemployment among able-bodied population of Ukraine did not exceed 5% during last years, including year 2002. Yet, the official data do not give the real picture. A poll of the International labor organization evidences that at least 12% of respondents in Ukraine have no job.
One more reason of violations of labor rights is the absence of sufficient legal knowledge by workers of their rights, as well as methods of realization and protection of these rights. Serious legal education of citizens is necessary for the increase of effectiveness of the collective-contractual regulation and, as a consequence, the proper level of protection and provision of rights of hired workers. They must realize their role and place in organization of these activities, know their rights and, what is fundamentally important, be able to defend the rights in a civilized way. I want to draw attention to the latter item.
In Ukraine labor rights of citizens are traditionally defended not only by the norms of civil, labor and administrative legislation, but also by criminal law. So, every worker must know that the employer, which brutally violates the most important human rights and freedoms, can be brought to criminal responsibility.
The Criminal Code of Ukraine of 2001 envisages the responsibility for premeditative impediment to the legal activities of trade unions (Article 170 of the Criminal Code), impediment to the legal activities of journalists (Article 171 of the CC), brutal violation of labor legislation (Article 172 of the CC), brutal violation of labor agreement (Article 173), coercion to participation in a strike or hindering in participation in a strike (Article 174), non-payment of salary or other payments envisaged by law (Article 175 of the CC).
The responsibility for violation of labor rights is still envisaged by the norm of Article 172, which establishes responsibility for illegal dismissal because of personal motives and other brutal violations of labor laws. Thus, the law envisages only two alternative forms of criminal deed of this type: 1) illegal dismissal and 2) other brutal violation of labor laws. As to the first form, it should be noted that the right for job is one of the most important human rights and freedoms, so deprivation of this right is regarded as one of most brutal violations of rights and freedoms of a worker. At the same time, the analysis of court practices evidences about the complexity of application of this norm, since the law acknowledges a dismissal to be criminal only in the presence of personal motives in the actions of the guilty. The law does not contain any explanations on the personal motives. At the same time, reasoning from the law, one should realize that the legislators recognize, in some cases, the possibility of existence of a not-personal motive of dismissal. Yet, it should be pointed out that science interprets the personal motive as an inducement, which is peculiar to certain person at commitment of concrete crime and is a ground of its commitment. So, any conscious motive, which induces a concrete person to the commitment of socially dangerous deed, may be regarded as a personal motive.
I want to point out one more contradiction at consideration of personal motive as a necessary feature of illegal dismissal. The majority of scientists have the opinion that illegal dismissal is one of the most brutal violations of labor legislation, which is also confirmed by the direct analysis of the law. The loss of job in most cases deprives a person of the possibility to protect his/her rights, in contrast to other labor violations. Besides, the loss of job results in arduous search of some other job, absence of means for living, troubles in family, etc. Thus, the question arises, why criminal responsibility for the most socially dangerous violation of worker’s rights (illegal dismissal) is restricted by the obligatory ascertainment of certain (personal) motive of these actions, unlike other (less serious) violations of labor rights, where it is sufficient to establish only the level of seriousness of the violation.
Secondly, the appearance of different forms of property, including the ownership of the means of production, caused the appearance of enterprises, establishments and organizations of various forms of property. Besides, the operating legislation allows a businessman to hire workers without registration of a juridical person. Nobody doubts that the illegal dismissal of a worker at private enterprises or by employer-businessman is always accompanied with personal motives (either personal dislike or the wish to improve the work of the enterprise), because the only purpose of such employers is guaranteeing of normal work of their enterprises and obtainment of profit. Yet, this approach is absolutely ignored by court practices.
So, one should realize that any illegal dismissal, that is dismissal of a worker with the obvious violation of grounds or procedure of dismissal, must be regarded as criminal.
As to the other form of criminal violation of legislation on labor, the law stipulates that violation of labor rights of a citizen is a crime, if this violation has been acknowledged as brutal. Court practice relates to labor legislation the laws on labor, which directly determine the labor rights of citizens, and the subordinate laws. In practice, violation of any right of a worker, envisaged by either a law or a subordinate law, can be recognized as criminal in the presence of other factors. The main problem, which hampers, to certain extent, the law-enforcing organs and courts in application of this legal norm, is the demand of legislators to determine the violation of labor rights of a citizen in compliance with an appraisal category. So, according to part 1 of Article 41 of the Code of Ukraine on administrative offences, a person guilty of violation of the demands of labor legislation is brought to administrative responsibility. Part 2 of Article 172 of the Criminal Code of Ukraine envisages responsibility for brutal violation of labor legislation. The only distinction of criminal violation of labor legislation from an administrative delict is recognition of this offence as “brutal”. Only a “brutal violation of labor legislation” is considered to be criminal. The analysis of legislation and court practices shows that a violation is regarded as brutal on the basis of the following criteria, each of which has independent meaning.
1. Nature of the violated labor rights. Undoubtedly, violation of basic human rights stipulated by the Constitution of Ukraine or independent legal acts is regarded as brutal. Such basic rights are: the right to work, right for leave, right for remuneration of labor not less than the minimal wage established by law and the right for rest. On the other part, non-fulfillment by an employer of the demands of Article 23 of the Code of laws on labor (obligation to explain the worker’s rights during conclusion of labor contract) would not be a brutal violation, if to base on this criterion.
2. Victim. The law reads that a victim of such crime is a worker, that is a physical person, which works in accordance with labor contract at an enterprise, establishment or organization, in their associations or for a physical person. Our legislation focuses especial attention on guaranteeing and protection of rights of most vulnerable categories of citizen, such as youth, women (including mothers) and invalids. So, violation of rights of these categories of workers must, in most cases, be considered as brutal violation of the laws on labor. Moreover, the assessment is also influenced by the number of workers, regarding to which the violation is committed. So, the social danger of an act connected with violation of rights of a group of workers of an enterprise is much more than danger of violation of the rights of one worker.
3. Objective features. During the solution of the question on brutal violation of labor legislation, the analysis of the offence, its consequences, ways and conditions, under which it is committed, is very important too. Brutal violation of rights of workers can be confirmed by systematic character of such violations, serious consequences in the form of physical, material and moral damage, certain way of violation of labor rights connected with physical or psychical coercion, as well as the conditions, which do not give the worker the opportunity to decide on his behavior. So, according to the Resolution of the Plenum of the Supreme Court of Ukraine on the practice of solution of labor controversies, a court, solving the question about brutality of a violation, must ground on the character of the offence, conditions, under which it has been committed, and the damage, which has been inflicted (or could be inflicted) by it.
4. Subjective features. All criminal violations of labor rights are committed only premeditatedly. Yet, the motives and purpose of an offence are important for solution of the question about criminal responsibility. In practice, sufficient attention is not given to the motives of commitment of the considered crimes. Yet, without doubt, just these characteristics can determine a brutal violation of legislation on labor. For example, personal enmity and other malicious motives noticeably increase the level of social danger of such offences.
Summing up the above-said, I want to point out that the norms on criminal responsibility for violation of labor rights of citizens demand improvement.Civic society
Maidan demands that it be served!
Ominous storms and turbulence rage over our world in 2005. The planet is in frenetic turmoil. While over blessed Ukrainian land a warm and sun-filled autumn has followed a luxuriant summer.
Yet internal ills and spiritual ailments weary and torment us. When we have no place for God in the heart, we find no peace in the soul and no harmony at home. On the fifth of September upheavals began on our Ukrainian Olympus which has truly begun to remind one of the Olympus in Kotlyarevsky’s “Aeneid”. It was clear from all of it that the paralysis had been caused by the swan, pike and crab [from Krylov’s fable where their attempt to pull a load fail abysmally through their inability to work together]. Only the swan had not shown itself ….
The fact that the enemies of Ukrainian democracy were preparing for a counter-attack already in autumn 2005 was clear to everybody, even those far removed from politics.
It is well-known that Russia had mobilized all forces in support of Yanukovych, including its own President who was in no way bothered that these provided ready grounds for impeaching his candidate.
The sense that the Ukrainian people had ended the epic phase of Maidan on the verge of psychological exhaustion was felt by all.
One might have thought that citizens should have made efforts to defend their democracy which, had, at long last, begun to sound real. For they understood that now was the time to strengthen the fortress. And that the task was for today and tomorrow. The true worth of each Ukrainian politician can be seen in how seriously they understood the importance of the moment and how fully they were committed to serve and to work selflessly primarily to group together patriotic forces.
I would stress patriotic since throughout the entire world it is first and foremost patriotic forces which defend independence gained and which carry their banner with honour. In such periods all self-seeking and separate actions of those in positions of responsibility are called irresponsible, if not downright treachery and pillage. For true citizens there is no division of positions and prestigious portfolios. Instead there is a division of duties, especially important after a regime of forces which were nationally irresponsible and lawless.
One false step could undermine all that has already been built. We have before us as an eternal reminder Volodymyr Vynnychenko. For all his failings, he would stand much higher in our estimation if we could expunge from his life story such a pitiful detail as his opposition to Simon Petlyura who had taken on his shoulders full responsibility and who became a symbol of national resistance and self-defence.
The higher an individual’s position, the more merciless should be his or her self-assessment, the greater his or her self-sacrifice and example of selflessness given. If someone does not understand that self-interest at that level simply does not pay, then that person does not understand where he or she has ended up and what the place if for that he or she deserves to lose
Passions raged on Olympus and nobody had any time for human woes.
Finally the explosion came when each scheming power reached its critical mass. And the disgruntlement with the regime reached a point at which by then nobody felt any pity for anyone.
"Let them all hang themselves!”, people said, disgusted and disillusioned.
In the end, the State Secretary Oleksandr Zinchenko spoke out making accusations of organizing a coup (addressed at the most influential people around, in particular, Poroshenko, Tretyakov, Martynenko – and journalists greeted this explosive statement with applause)
On 8 September the President’s announcement of the government’s dismissal – and this after all was the government of participants in the Orange Revolution – was taken calmly. In 9 months it had shown itself and yielded its fruits.
The little activists of Maidan have not gained even an inch in stature from power. And there is nothing worse than presenting a small person to full view and measure.
On Independence Day the Minister of Culture sang a new song to the words of Vadym Kryshchenko: “Blessed shall be our government”.
She thought it was an ode, but it turned out to be an epitaph.
One word, as the President said, new faces came to power, but the faces of power did not change …
Of course tomorrow there will be new appointments…
And here we return to the old, initial understanding that consolidates a society, to the evangelical concept of serving. Serving God by serving one another. In serving, order and harmony on earth are maintained.
The festival which has united us for an entire century begins with a religious service.
Service unites peoples, kingdoms; any army, any organization, any kind of discipline – all are held together by faithful service.
Senseless rebellion of pride rejects serving – yet that is the point at which serving the spirit of falsehood – and slavery – begin.
We would remind pragmatists that all history is based on serving, that the knights were the faithful servants of the sovereign. King Friedrich II said: “I am the first servant of the State”. At the end of the day, this was what all kings believed… Although not all provided an example of service.
Poets serve beauty, citizens serve truth not lies, while philosophers serve the truth … “Serve one another” – is the Apostle Peter’s call to us. All is so simple and clear.
In our ill-fated history faithful service has always been lacking. How many brave people refused to serve truly the One responsible – and died an ignominious death, as rebels who wanted to become atamans (Cossack leaders) of the mob? How many of them, slaves of pride and self interest, slaves of wealth and avarice, blazed brightly only to immediately flicker and fade, like the ash under the feet of descendants.
Hence, honoured key figures of our time, you are in the service of the State, yet your hearts are not there, but hidden away in the place where the treasures are.
They remain together with your business. And children will try to decide who is bigger – “Rochaine” or Poroshenko.
- Rochaine, of course.
- But why?
- Because Rochaine is a company. That’s something whole and consistent. While Poroshenko is scattered between his business, our parliament and not entirely his government.
And how are children to crack the puzzle of why in the West Yulya Tymoshenko is called a billionaire, while here she is a State servant with an income of 60 thousand UH?
- It turns out there are two State servants with that name, and we don’t know which serves whom.
But we speak of the high service to our one and only Motherland, service as the measure of our life and our love.
Can people in such service compete and fight with one another? It is clear that dedicated service precludes outside interests which divide servants and set them against one another.
High service has its opposite extreme – its parody: servile obedience … and finally, using service as a cover. Here the battle waged is treacherous and fierce.
Incidentally, aristocrats did not recognize remuneration for their service – service needed to be pure. At times the example is cited of George Washington. He, by the way, was an aristocrat who dedicated his life to the service of building democracy.
However service is not given by birth, but from created worthiness. It is a gift which is created by a life dedicated to the Absolute, to the law, principles, in a word, to all that a person considers sacred.
This begs the question whether all is sacred that a person deems to be so.
After all we have emerged from a Godless era when there was nothing sacred or holy and where, instead, the word “sacred” was kept to designate certain values which were stressed: duties, borders and others …
Serving was also cultivated – serving an idea, serving leaders and the State.
This serving was encouraged and there were plenty of those who served to the point of madness, due to a kink in their nature, by virtue of their upbringing, and also just from fear.
However for some reason or other history has not recorded any cases where someone wanted to serve an ousted idol of a leader, and has not registered any idealists of selflessness.
Service itself depends on God whom an individual serves. Why do people like idols? Serving them is easier and more fun because in the depths of the soul there is nothing that burns and gives pain.
Many books have been written about serving God and His Truth, and these books do not lose their power.
It is, in fact, from such books that we take the concepts of human greatness, about the spiritual dimensions of life’s phenomena. And we apply these concepts to the people who are in public view.
We shall not speak about demagogues, populists, those trying their luck with pseudo-patriotism and pseudo-religion, since there can be no sense in applying high standards to people of their ilk.
However, to the people who became the favourites of the people, we cannot avoid applying high standards. There may be choice and battle of various positions however the idea of individuality and dignity is above all of this.
Ukraine is today in the grip of a severe crisis – spiritual, ministerial, pre-election or some other …
Passions have no restraints especially when people are not inclined to apply self-restraint and do not impose strict demands on themselves.
However nobility imposes obligations as do greatness of stature, position… And they impose stringent demands. The smaller a person, the more leeway they give themselves. Indeed this is one of the principles for selecting the higher strata: the assurance that a person under all conditions will keep to certain limits and be true to their duty. For there are no circumstances which justify everything, and there are no values which can replace honour.
Perhaps all agree with this in theory. However, so often a person who is able to subtly calculate all moves, is not able to perceive that moral stature is always the winning option. Even on the eve of elections where the game according to the rules and the game according to none have effectively the same chances. However, somewhere that unseen arbiter is still there who will at the end of the day nonetheless disqualify those who play without the rules.
The magic word “Maidan” often hovers in the air between people in high places and even those “lower-ranked”. It hovers like one of last year’s orange ribbons with the message SOS. Have you really forgotten what Maidan was? Or did you not understand?
Do you think that it was about chanting Yu-shchen-ko under the conductor’s scrutiny of Tomenko?
Maidan is great hope.
Maidan is ultimate trust.
Maidan is the heart of the people.
How pitiful to think that Maidan could rise up in defence of one glorified individual who had been pushed out of the game. No, Maidan will watch how that individual rises himself.
During the months of the new regime, the simple people from Maidan have experienced so much injustice and disillusionment, that the injustice of one of those at the top is experienced as something from a virtual realm.
Maidan lives. However do not think that it has given you a lifelong mandate and is prepared to fight to the last for its heroes of yesterday. It expects selfless commitment. Maidan has already lived through the second act and is watching you in the third. Be aware, however, that this Maidan with its thousand eyes is very soberly observing each of those who after the festival retired from the scene and returned to their real matters, or took up their favourite games, their double games, while waving yesterday’s banner.
Do you think that Maidan does not hear with what fading voice you pronounce its name – Ukraine?
Do you think that the advances of limitless trust from there will never stop flowing?
Maidan demands that it be served!
The Ukrainian can be found on the Maidan website: http://maidan.org.ua/static/mai/1127466918.html
23 September 2005
Ominous storms and turbulence rage over our world in 2005. The planet is in frenetic turmoil. While over blessed Ukrainian land a warm and sun-filled autumn has followed a luxuriant summer.
Yet internal ills and spiritual ailments weary and torment us. When we have no place for God in the heart, we find no peace in the soul and no harmony at home. On the fifth of September upheavals began on our Ukrainian Olympus which has truly begun to remind one of the Olympus in Kotlyarevsky’s “Aeneid”. It was clear from all of it that the paralysis had been caused by the swan, pike and crab [from Krylov’s fable where their attempt to pull a load fail abysmally through their inability to work together]. Only the swan had not shown itself ….
The fact that the enemies of Ukrainian democracy were preparing for a counter-attack already in autumn 2005 was clear to everybody, even those far removed from politics.
It is well-known that Russia had mobilized all forces in support of Yanukovych, including its own President who was in no way bothered that these provided ready grounds for impeaching his candidate.
The sense that the Ukrainian people had ended the epic phase of Maidan on the verge of psychological exhaustion was felt by all.
One might have thought that citizens should have made efforts to defend their democracy which, had, at long last, begun to sound real. For they understood that now was the time to strengthen the fortress. And that the task was for today and tomorrow. The true worth of each Ukrainian politician can be seen in how seriously they understood the importance of the moment and how fully they were committed to serve and to work selflessly primarily to group together patriotic forces.
I would stress patriotic since throughout the entire world it is first and foremost patriotic forces which defend independence gained and which carry their banner with honour. In such periods all self-seeking and separate actions of those in positions of responsibility are called irresponsible, if not downright treachery and pillage. For true citizens there is no division of positions and prestigious portfolios. Instead there is a division of duties, especially important after a regime of forces which were nationally irresponsible and lawless.
One false step could undermine all that has already been built. We have before us as an eternal reminder Volodymyr Vynnychenko. For all his failings, he would stand much higher in our estimation if we could expunge from his life story such a pitiful detail as his opposition to Simon Petlyura who had taken on his shoulders full responsibility and who became a symbol of national resistance and self-defence.
The higher an individual’s position, the more merciless should be his or her self-assessment, the greater his or her self-sacrifice and example of selflessness given. If someone does not understand that self-interest at that level simply does not pay, then that person does not understand where he or she has ended up and what the place if for that he or she deserves to lose
Passions raged on Olympus and nobody had any time for human woes.
Finally the explosion came when each scheming power reached its critical mass. And the disgruntlement with the regime reached a point at which by then nobody felt any pity for anyone.
"Let them all hang themselves!”, people said, disgusted and disillusioned.
In the end, the State Secretary Oleksandr Zinchenko spoke out making accusations of organizing a coup (addressed at the most influential people around, in particular, Poroshenko, Tretyakov, Martynenko – and journalists greeted this explosive statement with applause)
On 8 September the President’s announcement of the government’s dismissal – and this after all was the government of participants in the Orange Revolution – was taken calmly. In 9 months it had shown itself and yielded its fruits.
The little activists of Maidan have not gained even an inch in stature from power. And there is nothing worse than presenting a small person to full view and measure.
On Independence Day the Minister of Culture sang a new song to the words of Vadym Kryshchenko: “Blessed shall be our government”.
She thought it was an ode, but it turned out to be an epitaph.
One word, as the President said, new faces came to power, but the faces of power did not change …
Of course tomorrow there will be new appointments…
And here we return to the old, initial understanding that consolidates a society, to the evangelical concept of serving. Serving God by serving one another. In serving, order and harmony on earth are maintained.
The festival which has united us for an entire century begins with a religious service.
Service unites peoples, kingdoms; any army, any organization, any kind of discipline – all are held together by faithful service.
Senseless rebellion of pride rejects serving – yet that is the point at which serving the spirit of falsehood – and slavery – begin.
We would remind pragmatists that all history is based on serving, that the knights were the faithful servants of the sovereign. King Friedrich II said: “I am the first servant of the State”. At the end of the day, this was what all kings believed… Although not all provided an example of service.
Poets serve beauty, citizens serve truth not lies, while philosophers serve the truth … “Serve one another” – is the Apostle Peter’s call to us. All is so simple and clear.
In our ill-fated history faithful service has always been lacking. How many brave people refused to serve truly the One responsible – and died an ignominious death, as rebels who wanted to become atamans (Cossack leaders) of the mob? How many of them, slaves of pride and self interest, slaves of wealth and avarice, blazed brightly only to immediately flicker and fade, like the ash under the feet of descendants.
Hence, honoured key figures of our time, you are in the service of the State, yet your hearts are not there, but hidden away in the place where the treasures are.
They remain together with your business. And children will try to decide who is bigger – “Rochaine” or Poroshenko.
- Rochaine, of course.
- But why?
- Because Rochaine is a company. That’s something whole and consistent. While Poroshenko is scattered between his business, our parliament and not entirely his government.
And how are children to crack the puzzle of why in the West Yulya Tymoshenko is called a billionaire, while here she is a State servant with an income of 60 thousand UH?
- It turns out there are two State servants with that name, and we don’t know which serves whom.
But we speak of the high service to our one and only Motherland, service as the measure of our life and our love.
Can people in such service compete and fight with one another? It is clear that dedicated service precludes outside interests which divide servants and set them against one another.
High service has its opposite extreme – its parody: servile obedience … and finally, using service as a cover. Here the battle waged is treacherous and fierce.
Incidentally, aristocrats did not recognize remuneration for their service – service needed to be pure. At times the example is cited of George Washington. He, by the way, was an aristocrat who dedicated his life to the service of building democracy.
However service is not given by birth, but from created worthiness. It is a gift which is created by a life dedicated to the Absolute, to the law, principles, in a word, to all that a person considers sacred.
This begs the question whether all is sacred that a person deems to be so.
After all we have emerged from a Godless era when there was nothing sacred or holy and where, instead, the word “sacred” was kept to designate certain values which were stressed: duties, borders and others …
Serving was also cultivated – serving an idea, serving leaders and the State.
This serving was encouraged and there were plenty of those who served to the point of madness, due to a kink in their nature, by virtue of their upbringing, and also just from fear.
However for some reason or other history has not recorded any cases where someone wanted to serve an ousted idol of a leader, and has not registered any idealists of selflessness.
Service itself depends on God whom an individual serves. Why do people like idols? Serving them is easier and more fun because in the depths of the soul there is nothing that burns and gives pain.
Many books have been written about serving God and His Truth, and these books do not lose their power.
It is, in fact, from such books that we take the concepts of human greatness, about the spiritual dimensions of life’s phenomena. And we apply these concepts to the people who are in public view.
We shall not speak about demagogues, populists, those trying their luck with pseudo-patriotism and pseudo-religion, since there can be no sense in applying high standards to people of their ilk.
However, to the people who became the favourites of the people, we cannot avoid applying high standards. There may be choice and battle of various positions however the idea of individuality and dignity is above all of this.
Ukraine is today in the grip of a severe crisis – spiritual, ministerial, pre-election or some other …
Passions have no restraints especially when people are not inclined to apply self-restraint and do not impose strict demands on themselves.
However nobility imposes obligations as do greatness of stature, position… And they impose stringent demands. The smaller a person, the more leeway they give themselves. Indeed this is one of the principles for selecting the higher strata: the assurance that a person under all conditions will keep to certain limits and be true to their duty. For there are no circumstances which justify everything, and there are no values which can replace honour.
Perhaps all agree with this in theory. However, so often a person who is able to subtly calculate all moves, is not able to perceive that moral stature is always the winning option. Even on the eve of elections where the game according to the rules and the game according to none have effectively the same chances. However, somewhere that unseen arbiter is still there who will at the end of the day nonetheless disqualify those who play without the rules.
The magic word “Maidan” often hovers in the air between people in high places and even those “lower-ranked”. It hovers like one of last year’s orange ribbons with the message SOS. Have you really forgotten what Maidan was? Or did you not understand?
Do you think that it was about chanting Yu-shchen-ko under the conductor’s scrutiny of Tomenko?
Maidan is great hope.
Maidan is ultimate trust.
Maidan is the heart of the people.
How pitiful to think that Maidan could rise up in defence of one glorified individual who had been pushed out of the game. No, Maidan will watch how that individual rises himself.
During the months of the new regime, the simple people from Maidan have experienced so much injustice and disillusionment, that the injustice of one of those at the top is experienced as something from a virtual realm.
Maidan lives. However do not think that it has given you a lifelong mandate and is prepared to fight to the last for its heroes of yesterday. It expects selfless commitment. Maidan has already lived through the second act and is watching you in the third. Be aware, however, that this Maidan with its thousand eyes is very soberly observing each of those who after the festival retired from the scene and returned to their real matters, or took up their favourite games, their double games, while waving yesterday’s banner.
Do you think that Maidan does not hear with what fading voice you pronounce its name – Ukraine?
Do you think that the advances of limitless trust from there will never stop flowing?
Maidan demands that it be served!
The Ukrainian can be found on the Maidan website: http://maidan.org.ua/static/mai/1127466918.html
23 September 2005
Deported peoples
I am happy because it has been my good fortune to be in charge of a worthy task!
.. And they bore their crosses in the world (O. Oles)
The dream of many Ukrainians throughout the world has come true. On 5 August, on the Day of Memory of the Victims of Stalin’s Repressions, the official presentation took place of the Monument of the Cossack Cross “To the Slaughtered Sons and Daughters of Ukraine” in the Sandarmokh Clearing (Karelia). Behind these simple words lie the huge and selfless work, efforts and inspiration of many people in Karelia and Kyiv, America and Canada …
How did it all begin? On the eve of the twentieth anniversary of “October” and of the NKVD, on 2 July 1937 the Politburo of the Central Committee of the Russian Communist Party (Bolshevik) passed Resolution R 51/94 «...to get rid of unreliable and socially dangerous citizens once and for all». This was the beginning of a mass campaign of repression.
A Directive from the People’s Commissar for Internal Affairs, M. Yezhov, gave the following instruction to A. Apeter (the Head of the Solovky Special Purpose Prison): «...Point .3. The Solovky Prison has been assigned a quota of 1200 men to be repressed».
The intelligentsia of almost all national groups of the USSR arrived in the “Solovky embarkation point” to then be imprisoned on Solovky. Among them were nearly 300 Ukrainians. For a very long time nobody knew where the last resting place on this earth of prisoners from this embarkation point was …
Members of the Karelia chapter of “Memorial” spent many years searching for the place of execution near the capital of the Belomor-Baltiysky kanal, the city of Medvezhyegorsk. The first witnesses had indicated a likely place for the mass burial. In the summer of 1997, thanks to the unrelenting efforts of the Karelia and St. Petersburg chapters of “Memorial”, and with the assistance of the local administration, the fate of those from the “Solovetski embarkation point” became clear.
The Chairperson of the Karelia chapter of “Memorial”, Ivan Chukhin (and after his death – Yury Dmitriev, Petrozavodsk) and Venyamin Yofe, have loudly, for all the world to hear, revealed the truth: from 27 October to 4 November Capitan Mykhail Matveyev with his henchmen shot 1111 prisoners of Solovky in the Sandarmokh Clearing of the Medvezhyegorsk district of Karelia. Yury Dmitriev was finally able to discover the secret burial area, and since that time the terrible word “Sandarmokh” has become known far beyond Karelia.
In the cold and beautiful earth of Karelia lie the remains of thousands of innocent victims of the killing, representatives of different nationalities – Finns and Russians, Armenians and Belorussians, Karelians and Germanys, Poles and Ukrainians … our fellow Ukrainians.
Sandarmokh is the last earthly resting place for the pride of the Ukrainian nation. In the lists there are more than 500 names. And this figure, tragically, is not all of them. I will not name the world-renowned writers, ministers, scientists, artists, for we are all equal before God. I would mention only that among them there are the names of 139 women who were very young – from 24 to 30 years old. Dear God, the torment they endured! They suffered together with the men, together with them all they froze and became bloated from starvation; they collapsed attempting work for which they lacked the strength. And yet, and yet – they were young and beautiful, and it is terrible to imagine how they were also raped and humiliated. As though it were uncomfortable to talk of such things, we ashamedly lower our eyes and yet it all happened. Instead of the tender arms of their husbands, their fiancés, they had the lewd sneers and groping hands of executioners!
Lost, murdered lives …
We know a lot and yet there is still more that we do not know. We will never know what those who suffered thought about in their final moments. Did they long to live? Or did they perhaps pray to God to put an end to their suffering? For the torment was inhuman: emaciated, tortured people were undressed, their hands and feet were bound, a gag was placed in their mouth, and only then they were shot.
Long before that time Mykola Zerov wrote: “… I stand numbed and live already drained of all strength …” Terrible to read! What was it – a premonition of his end?
God grant that nobody ever should experience such a fate. And that never again will we see the terrible roads that led to Sandarmokh and Bykivnya, Levashov and Krasny Bor, Byessovets and Sulazhgor, Siberia and Kolyma ..And this list could go on and on.
Forgive us, Oh Lord! For all that I am not to blame, nonetheless, I want to fall on my knees and cry so that all the world could hear: «Forgive us, Oh Lord!»...
In October 1997, the government of Karelia took the necessary decisions and a Memorial was opened, where the memory of all those murdered in the Sandarmokh Clearing could for the first time be properly honoured. A monument with the inscription: “People, do not kill each other” was erected (created by the sculptor Grygory Saltup from Petrozavodsk). Members of the St. Petersburg “Memorial” brought stone from Solovky. Memorial services for the innocent victims were held by priests of different confessions, and the administration of the city of Medvezhyegorsk organized a memorial funeral wake. The opening of the Memorial was attended by a Ukrainian delegation led by the poet and public figure, well-known both in Ukraine and beyond, Ivan Drach. The former political prisoner, Yevhen Sverstyuk, brought an oak cross which was prepared by the Kyiv artist, Mykola Malyshko. Since that time, every year in August, a Ukrainian delegation comes to the Memorial, and services in memory are held near the oak cross. We, the members of the Society for Ukrainian Culture on Karelia regularly come to Sandarmokh, and near the Cross plant flowers, pray, read the poems of Ukrainian political prisoners, and honour our countrymen and women.
Yet we still dreamed of creating a true monument, the work of a professional sculptor. Within a year a member of our Society, the artist Oleh Chumak had created a sketched proposal for the monument. This was sent to Kyiv, while at the same time I held talks with Ukrainians from America about possible assistance for the building, however unfortunately, or perhaps, fortunately (how can we know?) at that time there was not enough energy for this task. In the spring of 2003 we received a phone call which was to be momentous for our task. It was for me a great honour to talk with the State Deputy, Viktor Yushchenko. He asked me to be in charge of building a Ukrainian chapel (designed by Ivan Kushnir in Kyiv). Obviously I was happy to agree, however for objective reasons the building of the chapel never eventuated.
In March 2004, I had a meeting with Viktor Yushchenko, where it was definitely decided to erect a monument to the murdered Ukrainians in the Sandarmokh Clearing. The first significant contribution was received from the bloc “Nasha Ukraina” [“Our Ukraine”], personally from Viktor Yushchenko. It is possible that not all are aware that Karelia is connected for the current President of Ukraine with his own personal sorrow. It was here, on the building of the Belomorkanal that his father, Andriy Yushchenko, worked as a political prisoner.
After this, an initiative group of well-known Ukrainian human rights activists came together, headed by Yevhen Sverstyuk. We discussed all issues involved once again, and considered the design for the monuments of the winners of the competition – the artist Mykola Malyshko and the sculptor Nazar Bilyk.
While we in Karelia were dreaming of building this monument, our fellow Ukrainians in Kyiv, America and Canada, were filled with the same longing. We were gathered together, united and our general efforts coordinated by the indefatigable and uncompromising publicist, laureate of the Vasyl Stus Award and ardent son of Ukraine, Vasyl Ovsiyenko.
It was only then, when we joined forces, that our plans really began to move. At Vasyl Ovsiyenko’s initiative, the World Congress of Ukrainians and the Kyiv chapter of “Memorial” published through the entire world appeals “To the Slaughtered Sons and Daughters of Ukraine” requesting donations towards building the Monument. I, on my part, wrote about the building of the Monument to newspapers in Ukraine, Russia and America. And people from all over the world responded. The actual work commenced.
67 years ago a black day took place for Ukraine. On 3 November, in one single day in Sandarmokh, 139 Ukrainians were murdered. These included the well-known language specialist, Mykola Trokhymenko. His son – Venyamin Trokhymenko, a citizen of the USA, may God grant him good health and a long life, took charge of the erection of the monument, in memory of all the lives destroyed, not only that of his own father, but of all Ukrainians. It is specifically thanks to his financial assistance, that in Kyiv in 2002 the All-Ukrainian Association of Political Prisoners and Victims of Repression, the Kyiv Institute for the Applied Arts and the editorial board of the bulletin “Ant” were able to organize and run a competition for the best design of a monument in Sandarmokh, gave consolation prizes to those who participated and chose winners – the artist Mykola Malyshko and the sculptor Nazar Bilyk. An enormous amount of work in this direction was also carried out by Roman Selivachov. It was Venyamin Trokhymenko who made the biggest contribution towards the actual building of the monument. One can say without any exaggeration that it was his generosity which allowed us to achieve everything in such a short space of time.
The first step was to receive land on which to build the monument. Thanks to the Head of Administration of the city of Medvezhyegorsk, Volodymyr Karpenko and his deputy, Yevgeny Mykhailov, this question was resolved in record time. In general, less than a year was to elapse between the time when we obtained permission to build the Monument and full completion of the work!
I cannot say that it was an easy task. Firstly, absolutely all the organizational work was done entirely on a voluntary basis. And the amount of work was considerable: from carrying out the design of the place and agreeing it all in various institutions to looking for materials, skilled craftsmen, transport and a lot of other big and small problems. Perhaps it really is true that a person who genuinely wants to do something finds a way and the financing, while a person who doesn’t want to finds excuses? I think it is exactly like that. Nobody was in any doubt as to what material the monument should be made out – only granite, since this is the strongest stone in existence, which withstands freezing temperatures, changes in temperature and moisture. The Monument – a Cossack Cross must stand a long time, it is being erected to last centuries. The designers opted for grey granite from the Mansurovsk quarry in the Urals. At the end of September 2004 the monument was finished, the only thing now in the way was organizing the foundations. On 6 October it was planned to bring the monument from the factory and stand it on its foundation. Finally, the monument – the Cossack Cross – “To the Slaughtered Sons and Daughters of Ukraine” for ever took its place in the pine clearing, where Orthodox and Catholic Crosses, Muslim and Jewish Memorial Stones already stand. To tell the truth, there were doubts as to whether our monument would not be out of place in the Memorial. All the other Crosses are wooden, and ours is made of granite. And yet, incredibly, our monument not only fitted, but now it seems as though for the complete sculptural collection it was specifically that which was missing.
Behind the Cross we planted a huge snowball bush which a generous Ukrainian, Lyudmila Kostyukevych, had grown in her garden. May a nightingale alight on this bush, and give its song and provide solace to the souls of the murdered, may it convey our grieving thoughts to them. We planted also periwinkle, brought from Ukraine and marigolds. There is now one cross more in the world. It stands in a pine forest, in far off Karelia. It stands so that people will not forget the terrible, accursed Stalin period. This Cossack Cross stands, a mute symbol of our long-suffering, our free, independent, cherry-rich Ukraine! A granite plaque was added which states that the Monument was erected thanks to the donations of citizens of Ukraine, Karelia, America, Canada, the Society for Ukrainian Culture of Vorkuta. However without God’s help, without an understanding of our patriotic feelings on the part of many people whom we were to turn to, we would have experienced far greater difficulties. And the help came from people of different nationalities: Mykola Kovtun, Ukrainian; Oleh Misilyuk, Ukrainian; Oleksandr Lyallya, Finnish; Leonid Tatarov, Greek; Lana Mihynova, veps [a people from near Karelia]; Yevgeny Mikhailov, Sergei Koptyrin, Viktor Mogutin, Yury Dmitriev – Russians; Viktor Krysevych, Ukrainian; Volodymyr Karpenko, Ukrainian… On 9 October 2004 the Ukrainian community of Karelia came to the new monument. The priest, Father Leonid conducted a memorial service for the murdered innocent sons and daughters of Ukraine. The news that the monument was completed we passed on in the first instance to Viktor Yushchenko, remembering that he himself had played a direct role in this task. When the main work was finished, I realized it would be a shame if after a few years the history of building this monument were forgotten and nobody remembered the people who had been involved in it. And another idea emerged: to write a book about it. Fortunately, a benefactor was found - the president of the concern “Ormi”, Aleksandr Kolosnitsyn, with whose help this book was published.
On 4 August 2005 we met valued guests – the delegation from Ukraine and of Ukrainians from Moscow, Tula. The Chairperson of the State Committee on Nationalities of the Republic of Karelia, Yevgeny Shorokov, the General Consul of Ukraine in St. Petersburg, Mykola Rudko, the Co-Chairperson of the Association of Ukrainians of Russia and of the Federal National Cultural Autonomy “Ukrainians of Russia”, Valery Semenenko also took part in the commemorative events. The book “To the Slaughtered Sons and Daughters of Ukraine”. Sandarmokh” was formally presented. The official opening of the Monument took place on 5 August. Everybody was very nervous, wanting the event to be something which would never be forgotten. Was this achieved? I would have the temerity to say that yes, it was achieved! I saw tears in the eyes of many of those present. I saw and heard such words of gratitude from Venyamin Trokhymenko that could never be forgotten! I am happy because it has been my good fortune to be in charge of a worthy task – the erection of this monument! And, although the difficulties were incredible, all will be forgotten, and the monument, I believe, will remain for ever!
I would like once more to thank all those people who in word or deed were involved in this sacred task. Finally I would once again quote the words of the great Ukrainian, the martyr of the seventies of the last century, Vasyl Stus:
“Whether your path be to paradise, hell or captivity – all will pass, be able to endure.
Travel your path – that path which you named your own, that which you chose for all eternity.
To this you pledged yourself from childhood, to this God himself has predestined you”.
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