“Prava Ludiny” (human rights) monthly bulletin, 2005, #11

The report compares the state of affairs with regard to human rights over the ‘Kuchma era’ and in 2005. Interrelated trends are considered which defined the ever more flagrant violations of human rights under the 10 years of Kuchma’s regime, with a brief analysis of the same trends in 2005.

1. Administrative pressure applied by the State

This consistently intensified with the desire evident to regimentalize life in all spheres, although especially economic, this significantly limiting freedom of the individual. People became increasingly vulnerable and dependent upon the State machine, and those who sought in business to become economically independent found themselves in the grasp of numerous fiscal bodies whose administrative procedures and punitive methods became more and more sophisticated. This was to have fatal consequences for the development of business. The tax system seemed designed to render legal business dealings impossible, with people forced to bypass the law this putting them in a weak and vulnerable position. The punitive bodies were also highly selective, targeting those who were financially supporting the opposition or were attempting to assert independence. The regime made all efforts to ensure that only business with close ties to itself would succeed, this leading to the State apparatus becoming even more out of hand and heightening corruption.

In 2005

This administrative pressure has eased considerably, and it is no longer necessary to have close links to the regime. At the same time fiscal policy has not changed. The tax police who, as a symbol of political persecution in the past and one of the main violators of human rights, should have been abolished as an institution, continue to carry out a wide range of functions. The old State apparatus has largely remained intact and out of hand, and is clearly accustomed to working according to corrupt practices. The danger of this trend becoming worse, therefore, still remains. The main tasks, which the Presidential Decree №1615 of 18 November would seem to recognize, are to reduce the scale of the shadow economy and to fight corruption.

2. Rise in poverty and social inequality.

According to official data at the end of 1999, which was to be the worst year for most Ukrainians, at least 30 % of the population was living below the official poverty line. The average wage at the time (155.5 UH, around 30 USD) was less than the official cost of living (220UH), although considerably more than the social security payments to the poor which stood at 73.7 UH. The divide between the average wage and the income of the richest 5 % of the population was steadily increasing and was already five or six times greater than the divide in countries of Western Europe and the USA. Social and economic rights (enshrined in the Constitution, a long-despised Soviet trick!) seemed pure mockery, with the violation of specifically these rights being most flagrant. The government under Yushchenko as Prime Minister went some way towards overcoming these trends. In a short period the State began paying the salaries and pensions owing, increased pensions, while foreign debt decreased and the rate of economic growth in the country made it one of the most dynamic in Eastern Europe. The level of income of ordinary Ukrainians began, albeit slowly, to grow. After the dismissal of Yushchenko’s government, the positive trend was maintained, but at a much slower rate. According to data from the Ministry of Employment and Social Policy, at the beginning of 2002, at least 25 % of the population were below the poverty line, with half of these living on an income of less than 120 UH.

In 2005

This trend has been halted, with the fight to overcome poverty becoming one of the main priorities of the State. The minimum pension is now at the level of the cost of living for those not working which has been particularly felt in rural areas. Other social payments have also increased. Unfortunately, price rises brought about to a large degree by artificially created inflation has eaten away at this increase, and the position of a significant percentage of the population remains unstable especially given the threatened increases by local authorities to rent and communal charges. Such increases should bear in mind and not overtake the actual income level of the population.

3. The political struggle gradually turned into the strangulation of the opposition

Any means were used, in particular, enlisting the aid of the State bodies, including law enforcement, and other enforcement bodies. This was well demonstrated by the election campaigns between 1998 and 2004, as well as by the Referendum of 16 April 2000, with the violations of political and civil rights being the most serious of all the years of independence. By flagrantly and persistently foisting the ‘correct choice’ on voters, virtually preventing any candidates from the opposition from having contact with voters via the mass media, and not spurning any forms of administrative pressure to get the result they wanted, State executive bodies turned the elections and the Referendum into a spectacle which could not arouse any emotions save humiliation, shame and protest.

The Gongadze affair and the tapes of Major Melnychenko, as well as the actions of the Committee «Ukraine without Kuchma», accelerated the process of confrontation between the regime and the people and the formal organization of it in the political sphere at an institutional level. After the dismissal of Yushchenko’s government it became evident that a political opposition had emerged with all chances of changing the course of events within the country. Political confrontation between the regime and the opposition became increasingly fierce and turned into open struggle during the 2004 election campaign.

In 2005

The crushing of political opponents and the use of law enforcement bodies as weapons of political battle have ceased, and let us hope, for ever. The cries of ‘political persecution’ from members of the former regime are pure demagogy. Victims of political repression do not appear on central television channels, nor do they create new parties and start their own newspapers. On the contrary, real political competition has emerged where political forces are no longer frightened that they will be crushed by the full weight of the State apparatus.

4. Criminal and legal policy became more and more brutal.

Torture and cruel treatment during both detective inquiry (before charges are laid) and the pre-trial investigation applied to extract confessions became an everyday event, and most often went unpunished or, worse, were considered normal. This both heightened the sense among law enforcement officers of impunity and power and the feeling amongst others that they were quite defenceless. The number of people convicted of crimes doubled between 1991 and 1999, with the percentage of those receiving custodial sentences being 35% and 37,5%, respectively. Throughout all those years the number of acquittals never exceeded 0,35%. The introduction of a new Criminal Code and of court control over arrests did not lead to the expected easing of the load on the penal execution system. Nor did the number of suspects whom the courts ruled should be remanded in custody decrease meaning that the conditions in pre-trial detention centres remained shocking. The overall number of those deprived of liberty remained at the level of 190-200 thousand.

In 2005

The brutal practices described above remain a serious problem, and no initiatives have been taken to bring about a systematic reform of law enforcement bodies. The Committee of the Verkhovna Rada on issues of legislative backup for the law enforcement bodies continues to stubbornly ‘push’ a draft of a Criminal Procedure Code drawn up by the government and built around a base model of Soviet inquisition-style criminal legal proceedings, despite the fact that the draft has been severely criticized by the human rights organizations and received a negative evaluation from the Council of Europe. While the Constitution states clearly that detention without a court warrant may only be applied in exceptional circumstances, the use of such detention is so widespread as to make detention with the sanction of the court the exception. Law enforcement bodies continue to hold people in custody as their preferred preventive measure. Human rights organizations are still receiving complaints of torture and cruel treatment during the detective inquiry and pre-trial investigation stages. No effective measures have yet been introduced to counter the use of torture by the police, and complaints about the activities of law enforcement bodies are as a rule reviewed in a superficial and biased fashion. There have been virtually no improvements in the penal system, the prosecutor’s office or the Security Service of Ukraine (SSU). It should however be noted that the Ministry of Internal Affairs (MIA) has become more open and cooperates more with human rights organizations.

5. Disregard for the judiciary and for the rule of law in general increased.

This could be seen in the constant violations of the principles of the rule of law in favour of immediate political expediency, in the lack of respect for the independence of the courts, in the pressure on the courts applied by the President’s Administration and by the State executive as a whole, in the pitiful level of financing of the judicial system, and in the attempts to inculcate the belief in society that the judiciary was one of the most corrupt institutions in the country. The President’s people blocked the development of constitutional legislation aimed at developing constitutional norms and establishing clearly-defined powers for the executive and judicial branches of power. This meant for example that laws on the President’s role, on the Cabinet of Minister, on temporary special and investigative commissions of the Verkhovna Rada, on its regulations, on pre-trial investigation units, etc, were never passed. The reform of the judicial system was stalled. As the Chairperson of the Supreme Court, Vasyl Malyarenko, said at parliamentary hearings held on 16 March 2005, it had moved «slowly and in a chaotic and unsystematic manner with reforms being followed by counter-reforms and attempts to review previous legislative rulings». Trial by jury was never in fact introduced and administrative and juvenile courts were not created. The periods required for review of court cases were too long and in virtually every case there was an infringement of the principle of court review ‘within a reasonable time’.

In 2005

The independence and proper functioning of the court system and respect for the rule of law as a whole also remains a serious problem. While cases of direct pressure brought to bear on the courts are much fewer than under Kuchma’s regime, there remains a lack of awareness of the impossible of an independent judiciary and financing continues to be woefully inadequate. The court reform remains stalled by the lack of clarity as to the status of the prosecutor’s office. What is more, the amendments to the Constitution, passed on 8 December 2004, return to the offices of the Prosecutor the old Soviet general surveillance functions which runs totally counter to the creation of a strong and independent judiciary. This is a massive step backwards for achieving a reform of the Prosecutor’s office and bringing it into line with European standards, as well as being a breach of Ukraine’s commitments made on joining the Council of Europe back in 1995. In general everything related to the ‘constitutional reform’ suggests a total disrespect for the Constitution and for the principle of the rule of law. The procedure for introducing changes to the Constitution has been infringed on many occasions. It would appear that none of our Ukrainian politicians is bothered by the fact that the ‘reform’ creates an illogical competition between the top State posts of President and Prime Minister within the framework of one – executive – branch of power. It also effectively shatters the integral unity of Ukraine’s foreign and domestic policy, encroaches upon the principle of joint responsibility of the Cabinet of Ministers, and makes primitive nonsense of the principle of division of power. The ‘reform’ introduces principles of the worst political collectivism, transforms State Deputies of the Verkhovna Rada into voting machines, entirely dependent on the will of party bosses and leaders of factions, clearly increases the risk of confrontation between parliament and President and radically increases the direct organizational dependence of parliament on the will of the President.

6. The level of surveillance of State enforcement bodies over the population became ever more all-encompassing, this being particularly evident in the mass-scale violations of the right to privacy as regards communications. Tapping of telephones and mobile phones, and the interception of electronic mail and other forms of communication were applied on a huge scale. Since these investigative operations (IO) were not subject to control, it was impossible to assess the real scale of illegal, that is, unsanctioned interception of information from communication channels, this prompting numerous applications from both politicians and journalists. However even the scale of those actions carried out lawfully was staggering. As one of the judges of the Supreme Court publicly stated, in 2002 appeal courts had issued 40 thousand sanctions for the interception of information from channels of communication. This was a huge figure if one compares it with the number of warrants issued in countries with a similar population – France, the United Kingdom, etc, where the figure did not always exceed one thousand. There were active efforts to introduce a system for monitoring communications and activity of Ukrainians on the Internet. Order No. 122 of the State Committee for Communications of 17 June 2002 stated that only Internet providers who had installed the State system for monitoring and who had received the relevant certificate would be entitled to serve State executive bodies. Furthermore, these providers were obliged to procure and install this system at their own expense. This Order had no legal basis.

In 2005

Surveillance carried out on citizens by State enforcement bodies has in general been on a smaller scale however remains considerable. Over the first 9 months of this year approximately 11 000 court warrants permitting the interception of information from channels of information were issued. These unofficial statistics were confirmed on 8 October by Sviatoslav Piskun, then still Prosecutor General of Ukraine, in an interview given to the newspaper ‘Komsomolska Pravda v Ukraini’ [‘Komsomol Truth in Ukraine’]. He added that the material received had only been used in 40 cases. It should be noted that this issue has been a constant focus of attention of the President who has on many occasions stressed the inadmissibility of unlawful surveillance, and who signed Decree No. 1556 on 7 November concerning measures aimed at preventing this. However, in our view, the enforcement bodies are not in a hurry to support the President. The Order of the State Committee for Communications No. 122 which introduces control over the use of the Internet remains in force as a result of the will of the SSU to hold onto this form of maintaining control over society, despite the fact that the Ministry of Justice in a letter dated 13.10.2005 instructed the Ministry of Transport and Communications to revoke the Order within 5 days. The SSU is adamantly resisting the adopting of draft Law No. 4042-1 «On interception of telecommunications» which contains guarantees against abuse. Together with other enforcement agencies, it introduced for the new version of the «List of items of information which constitute a State secret» of 12.08.05 a point about classifying statistical data about investigative operation, counter-intelligence and intelligence activities. This point will mean that there is no possibility whatsoever of gaining information as to the number of warrants issued for interception of information from channels of communication. A solution can be found in the adoption by parliament of draft Law No. 4042-1 since its implementation is intended to resolve the problem of abuse in this sphere.

7. People’s right to protection of their personal data was ever more infringed as a consequence of the general will of the State to know as much as it could about its citizens. The abolition of the system of registration known as ‘propiska’ confronted the State with the task of creating a system of registration for individuals. The main decisions of the State, passed in this field, were, unfortunately, aimed at creating an effective mechanism for spying on the private lives of Ukrainians. Long discussion as to which state body should be responsible for this register – the Ministry of Internal Affairs (MIA) the Ministry of Justice, or a separately created special body; what the register should be; and how to ensure protection of personal data, ended unexpectedly on 30 April 2004 with a Decree of the President, No. 500. The Decree stated that the MIA would be responsible for the register which would be based on the Single state automated passport system which had been started in 1996. This solution to the problem of registration of individuals meant in effect the use of a singe multi-purpose individual identification number, which would make it possible to unite all data bases where information about the individual was contained. The success of such a system would mean the transformation of Ukraine into a police state.

In 2005

The right of the individual to protection of personal data remains under threat. The President with his Decree of 10 March No. 457/2005 cancelled Decree No. 500 of 30 April 2004 on the introduction by the Ministry of Internal Affairs of a Single Register of Individuals on the basis of a single State automated passport system (SSAPS). Nonetheless, judging from information in the press, the MIA has completed without any prior arrangements being made a plan for SSAPS on the basis of a single multi-purpose individual identification code (with the tax identification code used as basis for this code). Recently Yury Lutsenko, Ukrainian Minister of Internal Affairs, announced the creation of citizens’ cards with a single number. The introduction of this passport according to the Minister is being deferred until after the elections in 2006. However the issue of foreign passports in the form of a plastic card with a single number has already been introduced. There have been no basic laws passed on either the protection of personal data, or on the creation of a Single Register. In our opinion, basic laws should first be passed and only then should individual passes be introduced with observance of the right to privacy.

8. Freedom of speech was ever more widely infringed. Control over the mass media, especially forms of electronic media, became more and more tight and unashamedly blatant. Independent information and analytical programs virtually disappeared. The ability of journalists to freely express an opinion was directly dependent on the political views, interests and possibilities of the owner of the channel, and of the financial-political group which backed it. In each media outlet there were permitted subjects for criticism and areas not to be touched. Since all financial-political groups were dependent on the President, the latter had to be held immune from criticism. This unwritten rule was broken during periods of heightened political conflict between the President and parliament, between the President and the opposition (publications controlled by Pavel Lazarenko, Yevhen Marchuk, Oleksandr Moroz) during parliamentary and presidential elections. However it became very difficult to express an overtly opposing viewpoint: the State executive bodies gradually developed a huge arsenal of means for forcing those in opposition to be silent. The introduction in the middle of 2002 of ‘temnyki’ (directives to journalists telling them what to cover and how) made all news similar and standardized.

In 2005

The number of infringements of freedom of speech has fallen significantly. In all sectors of the media there is pluralism of opinions, the majority of national television channels and radio stations are balanced in their presentation of information, although some elements of manipulation of information do remain We are not aware of any cases of pressure being placed on journalists by the central authorities, and the State mass media are gradually freeing themselves of their traditional exclusively positive and biased attitude to the regime. It should be noted, however, that there are as yet no guarantees providing for the consolidation and development of these positive changes. Unfortunately there is still no clear position on the creation of public service television and radio broadcasting or on the privatization of State mass media outlets.

9. The practice of classifying as secret and limiting access to official information became ever more widespread, this being justified as being for the protection of the information security of the State (a concept which is not defined in any law). Progressive laws, regulating access to information, were being effectively nullified by subordinate legislative acts and unlawful practice epitomized by the widespread use of illegal stamps restricting access to information. In particular, there were the stamps with «Not to be published» (used by the President), «For official use only» («OU») and «Not to be printed» (used by the Cabinet of Ministers, ministries and other departments). Our observations suggest that the number of documents with these stamps rose sharply during the period of election campaigns and the referendum. The number of documents with the stamp «Not to be printed» in certain months reached 10% of the general number of documents. It is noticeable that it was the very President of Ukraine who classified a much larger number of documents than the Cabinet of Ministers or any other department. These stamps of secrecy are not defined by any law, and the regulations for working with documents which have this stamp are either not defined by any legislative norm whatsoever, or, as in the case with «OU», effectively block access to documents with that stamp. The range of information which could be classified a State secret also broadened significantly. A «Code of types of information which constitute a State secret» was first made public (in 1995), but then classified as secret. All of the above are flagrant violations of Ukrainian, as well as international, legislation. As for information on open access, departments were extremely reluctant to provide this. The response to formal requests for information was frequently a formulaic letter giving no answer, or there was often no response whatsoever.

In 2005

The unwarranted classifying as secret or restriction of access to official information has to a large extent been retained. The promises to ensure openness of information, transparency and accountability of the regime to society made on Maidan Nezalezhnosti [Independence Square] during the Orange Revolution have largely not been kept. It is difficult to assess progress in this area given the lack of openness and desire to limit access to any information about their activities in the State apparatus beginning back in Soviet times. One can cite the latest examples. On 17 November the Verkhovna Rada accepted with a majority of 310 votes in favour (and none against) as a basis the draft Law „On the Foreign Intelligence Service of Ukraine», the text of which is not available in the computerised legal systems, and one of the articles of which has the classification stamp «secret». The presence of secret articles contradicts the very essence of laws as open public normative legal acts, and is absolutely inadmissible. We also consider the inclusion in the new List of items that constitute a State secret of such information as the «moral and psychological state of the personnel», introduced by General Headquarters and the State Border Guard (Points 1.2.1 and 4.6.4) to be unjustified. Over 10 months there have been 42 Presidential Decrees bearing the stamp «Not to be published». The Cabinet of Ministers over this period has issued 13 Resolutions and Directives with the stamp «Not to be printed» and 3 with the stamp «For official use only» (OU). They have also been used by other ministries and departments. Most regrettably, therefore, the practice of using illegal stamps has remained intact despite the promises made to put an end to it, although the scale of its use has decreased since the Kuchma era.

The above analysis suggests that on the whole the situation with regard to human rights has in 2005 improved, however this improvement cannot be considered firmly entrenched. Obviously it is not possible in the space of 10 months to eradicate corruption, to successfully reduce the scale of the shadow economy and to change the way of thinking of law enforcement officers and of the State apparatus as a whole. However the political will is needed as well as persistent efforts aimed at improving the situation with human rights. Moreover, in our opinion, we still have the opportunity to make a swift start to effective reforms in all fields of life. Of particular importance here is the condition that the Constitution and the principle of the rule of law are observed, in particular the fulfilment of all procedural requirements. Only on this condition will changes for the better as regards human regards become irreversible.

In April 2005 the Chortkiv correspondent office of “Prava Ludyny” informed about circumstances of detention by law-enforcing organs of Anatoliy Zhukinskiy, the head of the Ternopil regional administration. In this situation the regional council could not protect the right of its head for the access to advocate and for timely medical aid.

The next stage of this case started in the end of October, when the prosecutor’s office of the Ternopil region accused A. Zhukinskiy of large-scale misappropriation of budget funds. That time the corporative deputies’ solidarity acted…

Resolution of the Supreme Council of Ukraine “On introduction of changes into the Law of Ukraine “On the status of deputies of local councils”” No. 2854-IV, which had been signed by the President of Ukraine on 8 September 2005, became a real “ring-buoy” for the “drowning” head of the regional council. Article 30 of the mentioned Law has been supplemented with part 7, which reads: “A deputy of a local council cannot be brought to criminal responsibility, arrested or subjected to administrative measures imposed by court, without consideration of this question by the local council”. So, it is practically impossible to bring to criminal responsibility about 300 thousand of deputies of local councils in case of commitment of crimes by them. The experience of councils of previous convocations, when this norm has been already acting, shows that deputies give the consent to bringing of their colleagues to responsibility very rarely.

On 24 October the regional prosecutor’s office presented for consideration of the Ternopil regional council the request “On giving the agreement about bringing to criminal responsibility of A. Zhukinskiy, a deputy of the Ternopil regional council from Lanovetsliy electoral district No. 11”. On 27 October M. Liushnenko, the first deputy of the regional prosecutor, informed the sessional sitting about the results of investigation of the facts of malversation of budget funds by A. Zhukinskiy. The fact is that the head of the council paid 3 thousands of budget hryvnas for some spares for his personal car. Later this auto-fraud became more and more ingenious. This car was sold to a physical person – “some man from Dnepropetrovsk”. Then the same car was bought by the Ternopil regional council for its head, but now the cost was 260 thousand hryvnas, which seemed to be rather expensively for the region subsidized by the state budget for 75%. Traditionally, this purchase was concealed behind the general expenditures for upkeep of the council apparatus… After that the obtained money returned and, finally, by the conclusion of investigation, 90 thousand hryvnas were appropriated by A. Zhukinskiy. So, Zhukinskiy has misappropriated money of the regional council on the especially large scale, thus committing the deed having the features of the crimes envisaged by parts 2 and 5 of Article 191, part 1 of Article 263 and part 1 of Article 366 of the Criminal Code of Ukraine, which entails the deprivation of liberty for the term up to 12 years.

It should be pointed out that the request of the prosecutor’s office was included into the agenda of the session in a rather strange way, with violation of many regulation demands. This document was concealed from the permanent commission in charge of questions of legality and legal policy. The deputies got the opportunity to familiarize with the text of this document immediately before the beginning of the plenary sitting. The draft of the decision was not prepared at all. Mr. Zhukinskiy was absent during consideration of the question and it was impossible to ask him whether he wanted to prove his innocence in court.

The Ternopil regional council preferred to discuss the delicate problem of bringing of its head to responsibility at a closed plenary sitting. Only deputies and heads of law-enforcing organs were present in the session room. The session did not approve the proposition on the conduction of roll-call vote. As a result, the council protested against bringing of A. Zhukinskiy to responsibility by a majority. It is interesting that the official result of the voting at the closed sitting even was not made public officially, and any documented decision there was not allegedly taken… I reckon that there are all grounds to say that the rights of deputies have been violated during preparation and consideration of the prosecutor’s request, which resulted in adoption of unmotivated and illegal decision.

It should be noted that this was another attempt of deputies of the regional council not to disgrace itself. So, according to the proposition of Orest Zvarych, a deputy head of the commission of the regional commission in charge of questions of legality and legal policy, who disclosed the regulation violations in the procedure of consideration of the prosecutor’s request in the case of Zhukinskiy, it was planned to submit the question for the repeated consideration by the session on 2 November. Yet, as it was to be expected, the repeated sitting did not support this proposition of O. Zvarych…

So, in this situation, only the General prosecutor of Ukraine has the right to bring A. Zhukinskiy to criminal responsibility: in compliance with the norm of item 5 of Article 31 of the new version of the Law of Ukraine “On the status of deputies of local councils”, he has the right to turn to the Supreme Council of Ukraine with the request about solution of this question per se.

Theoretically, the Constitutional Court also can settle this question, since, according to the Constitution (Article 24), “Citizens have equal constitutional rights and freedoms and are equal before the law”. This norm does not concern only MPs: Article 80 of the Constitution guarantees them deputies’ inviolability, and they cannot be brought to criminal responsibility, detained or arrested without the consent of the Supreme Council.

It seems to me that the people’s representatives will, in most cases, tolerate the criminal deeds of their colleagues, and Resolution No. 2854-IV of the Supreme Council will work effectively, although not in favor of justice.

On 27 September 2005 in Kyiv “Amnesty International” presented its report “Ukraine. The time to act: Torture and cruel treatment of people detained by the police”. It speaks of an alarming situation as regards the observance of the rights of those detained by the Ukrainian police and gives details of various incidences where torture has been applied. One such case involved Mykhailo Koval from Chernihiv.

Testimony of M. Koval from the case materials: “On 14 August 2001, about 10 a.m., two men, whom I did not know than, came to me and started to demand from me the perforator, which belonged to my son D. Bryk.

Since my son was absent at home and he legally owned this perforator, which is confirmed by the case materials (protocol of interrogation of Maksim Omelyanenko of 19 June 2003, who evidenced that the plugger-perforator “Bosch-Hammer” and the angle rubbing machine “Bosch” had been purchased for the money earned by me, Dmytro Bryk and Yuri Omelyanenko), I refused them, and when they entered my flat with the intent to take the perforator by force, I took my gas pistol (which I possessed legally and stored in a safe) and threatened to use it, it they would not leave my dwelling. I believe that this deed was legal and agreed with dangerousness of the situation: in fact, these men tried to take away a personal thing of my son in my flat).

As it appeared later (which is seen from the materials of the criminal case), the visitors, Yu. Omelyanenko and M. Rebenok, handed, on the same day, a complaint to the Chernigiv town police station: they complained that Koval threatened them with the use of firearms in his flat.

The law-enforcers did not conduct any check of this complaint (investigation of the basis, on which the claimants got to the flat, requests about Koval and about the legality of storage of the weapon by him, questioning of neighbors, etc.) and neglected the explanations of the claimants (in particular, M. Rebenok’s told that on 14 August 2001, about 11 a.m., by the address 53 Partizanska St, Apt. 48, a stranger threatened him with arms and physical violence), thus ignoring the fact that the threat to apply any methods of defense for prevention of penetration to a private dwelling is prejudicially legal. Instead of that the policemen at once gathered a group for going to the mentioned address, which is confirmed by the materials of the criminal case and reports of the police officers.

About 18 p.m. several strangers visited me (as it appeared later, they were police officers Gonchar, Danilov and Feshchenko). When I opened the door and saw the unknown persons, who did not introduce themselves, did not produce their service IDs and did not explain the goal of their visit, I tried to shut the door. Yet, they seized my hand, knocked me off my feet and started to push me into the flat.

Feeling fear for my life and health, I broke away to the staircase and began to call for help. They knocked me down again and tried to pull me inside. One of these men – policeman M. Gonchar, as it became known later, sat on me, pressed on my neck with his knee and pulled out his gun threatening to use it, at that he hit my head with the hilt for several times.

My son Dmytro Bryk heard the noise and went out from the flat. When he saw that I was beaten by the policemen, he tried to stop them. Then the officers applied physical force to Dmytro and handcuffed him.

After that me and my son D. Bryk were transported by a patrol car, summoned by neighbors, to the Chernigiv town police station, where we were put to different rooms. There the policemen, applying physical violence and torture to me and my son, forced us to write explanations.

The policemen beat me on head with fists, service gun and a plastic bottle filled with water, they broke my rib, inflicted cerebral brain concussion and the closed cerebral brain trauma.

My son Dmytro was tortured being handcuffed. They beat him on the head too, squeezed out his eyes with fingers and beat on his both ears simultaneously with hands in order to injure his ear-drums.

The physical torture was accompanied with moral torture and threats”.

Ukraine signed the Convention on protection of human rights and fundamental freedoms, Article 3 of which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Unfortunately, it is too early to say about observance of this norm in Ukraine.

In what following we are publishing the interview with victim of torture M. Koval, prepared by the Chernigiv human rights protection public committee.

Mr. Koval, how “Amnesty International” learned about your case?

When I saw that investigation of my case was knowingly braked, and the policemen, who had tortured me, were not punished, I turned to human rights protecting organizations -- the Chernigiv human rights protection public committee and the Kharkiv group for human rights protection. An advocate of the KhG asked my consent to publication of the information about my case in the Internet. In several days Ms. Hesa MacHill from “Amnesty International” phoned me. Some time later we met in the office of the Chernigiv human rights protection public committee and started to cooperate.

How did you use the tools, envisaged by the Ukrainian legislation, for protection of your abused rights?

From the very beginning I was sure that a crime had been committed by the police officers against me and my family. Investigation of such crimes is in competence of prosecutor’s office. So, I turned to the prosecutor’s office and for four years strived for the unbiased investigation of this case.

Has your life changed during this time?

The story that happened with me and my son was horrible. Our health was undermined, we had to undergo medical treatment for a long time. Even now we both have problems with health. My son now does not hear with one ear as a result of torture, his sight has also deteriorated. However, the most terrible thing is that the torturers broke his belief in justice and human kindness. Now he smiles very rarely. I promised my son to restore our abused rights. I want our torturers to read and realize that. I will not give up!

Who, in your opinion, is connected with commitment of the crime against you, what are their names?

14 August 2001 affected my entire life. On the eve of the Day of Independence I got to a hospital “thanks to” police officers. On that day policemen Gonchar, Danilov and Feshchenko burst into my house without any sanctions and explanations and tortured me. Gonchar beat me on the head with fists and his service gun. This is described in testimonies of neighbors. When my neighbors summoned police, the torturers put me and my son into the police car and transported us to the Chernigiv town police station. In the police station captain Tishchenko, Aliokhin, Slivko and others joined to the beating. Gonchar Tishchenko and Slivko tortured us especially cruelly. They tortured us during four hours – from 19 to 23 p.m., and these hours seemed to be eternity to us.

What the policemen wanted from you?

They demanded to confirm in writing that I voluntarily gave them the gas pistol (I had a permission for it) and perforator. And they beat out this evidence.

When we were transported to my house and witnesses were found, I gave away my pistol. Yet, about the perforator I said that this was my private property and they had no right to seize it. In presence of witnesses Tishchenko and Slivko began to threat that they would conduct a search, and if they would not find the perforator, they would carry away all valuable things and would throw us to the cell with criminals. Then I understood that they really could do everything and gave them the perforator. I asked to give me the document confirming that they took away the perforator. I was inattentive because of shock and accidentally signed the protocol of voluntarily handing.

How do you think, what were the motives of such actions of the policemen?

When the policemen rushed into my flat, they were accompanied by two civil persons – M. Rebenok and Yu. Omelyanenko, who, for some reasons, even drove the policemen by their car. Maybe one should look for motives in presence of these men? Yet, this must be done by investigation.

(Advocate of the victim O. Trofimov asks about the corruption deeds of the police officers).

As it is seen from the case materials, the CID officers illegally seized the mentioned perforator owned by D. Bryk; according to the appeal of Yu. Omelyanenko and I. Omelyanenko, the perforator was passed to them against a receipt and still has not been returned to the owner.

From explanations of M. Rebenok of 11 September 2001:

“… On 17 August I came to the CID head M. Gonchar in order to learn whether I could take the perforator. He explained that this could be done only through court.

Since I needed the perforator for work, I had to write the appeal on behalf of the majority of members of our brigade.

When I got the perforator against a receipt, M. Gonchar turned to me with the entreaty to render, if I could, some financial aid.

On the next day I came to the police station, wrote a request about allocation of 300 hryvnas for purchase of combustive-lubricating materials and passed it to M. Gonchar together with the appeal…”

As it has been pointed out above, these facts were established and acknowledged as illegal by service investigation, in accordance with the materials of service check of 17 September 2001.

What were your actions, when torturers left your dwelling?

I lodged a complaint to the prosecutor’s office. I also turned to the Chernigiv regional organization of the People’s Rukh of Ukraine. The newspaper “Sivershchina” described my story. Head of the regional organization of the PRU V. Stupak (now an MP, a member of the Ukrainian National Party in the Supreme Council) directed a request to Mykhaylo Manin, the head of the Chernigiv regional directorate of the Ministry of Interior. The service check had been carried out, and I got the written notification that, by order of General Manin, officers of the Chernigiv town police department Gonchar, Danilov and Feshchenko were dismissed from law-enforcing organs. The order was issued in September 2001. I learned about it on 20 September 2001. However, these people still work in police.

Mr. Koval, what would you advise to the people, who has become victims of the arbitrary actions of law-enforcers – to be afraid or to protect themselves?

During torture one should agree with all demands in order to stop the humiliation. Yet, later the victim should use all opportunities to prove the crime. If there are bodily injuries, the forensic expertise must be carried out, or, at least, the injuries should be photographed by relatives. Proper complaints to the prosecutor’s office should be lodged as soon as possible. The victim must act: turn to human rights protecting organizations, organize publications in the press about the atrocity of torturers, etc. Then there will be some hope for the victory of justice. I am sincerely grateful to MPs Volodymyr Stupak and Yulia Timoshenko, executive director of the Ukrainian Helsinki Union Oleksiy Tarasov, co-chairman of the Kharkiv group for human rights protection Evhen Zakharov and the KhG advocate Arkadiy Bushchenko, representative of “Amnesty International” Hesa MacHill, members of the Chernigiv human rights protection public committee Valentina Badyra, Natalya Romanova and advocate of the ChHRPPC Oleksandr Trofimov, who have responded to my problem. Thanks to their actions I have the hope that my case would get moving and would be, sooner or later, passed to court.

P. S. Today this scandalous case has changed its “dead” status to “semi-alive” one. Its investigation lasts since 2001. During this time the prosecutor’s office several times tried to “bury” the case. Yet, owing to interference of MPs and advocates, the resolutions on closure of the case were cancelled. Advocate O. Trofimov has got the information that investigation actions on this case are carried out now and the investigation experiment will be conducted in the nearest future. The speed of investigation of “Koval’s case” will demonstrate how the situation had changed in Ukraine during the work of the new power. We hope that this resonant case will not be ignored by President of Ukraine V. Yushchenko, who has received the report from “Amnesty International”. It is easy to ruin the belief in justice, but it is very difficult to restore it.

Mr. Koval has turned to the European Court, and his case has a perspective. Its solution is anticipated by the Ukrainian society and those citizens, whose honor and dignity were brutally mutilate with policemen’s boots.

According to the information of the Chernigiv human rights protection public committee, four out of six policemen, whose names are mentioned in this interview and who are accused of torture by M. Koval, continue to work in law-enforcing organs, and even has got new posts and ranks during these four years: captain Feshchenko and major Danilov work in the CID of the Chernigiv town police department (by the way, Danilov is a relative of Oleksandr Bugayov, a notorious Chernigiv criminal of the end of the 1990s), major Gonchar works in the regional CID, and Eduard Aliokhin has got (already under the new power) the rank of lieutenant colonel and was appointed… the head of the Chernigiv town police department (accidentally, and maybe not very accidentally, Eduard Aliokhin studied in the Chernigiv pedagogical university together with MP Mykola Rudkovskiy).

28 October 2005

On 2 November the Novozavodsk district court of Chernihiv passed its verdict on the claim of Volodymyr Ovsienko against two former district police officers. The Chernihiv human rights protection public committee has more than once mentioned this prominent case. The red tape lasted for more than three years and, has finally, reached conclusion. Interests of the claimant were represented by Oleksandr Trofimov, a lawyer of the Chernigiv human rights protection public committee.

On 20 February 2002, about 6 p.m., police officer L. detained V. Ovsiyenko in the street and drove him to the local police station to check his connection with some stealing of personal property of citizens. At that time senior district police officer B. also stayed in the police station. L. brought in Ovsiyenkoo into the room and locked the door on the inside.

After this L. and B. exceeded their authorities and rights, applied threats and physical violence and disgraced dignity of Ovsienko: they tried to make him confess to stealing of a typewriter from the building of the police station and an attempt to set fire to this station, forced him to give the written explanations.

At that they beat Ovsienko with fists and boots on his head and other parts of body. Besides, L. and B. beat their victim with a rubber baton.

Being in a psychologically depressed state and feeling severe physical pain as a result of the beating, V. Ovsienko fulfilled the demands of the policemen and wrote the explanation.

On the same day Ovsienko went to the traumatic ward of Chernigiv town hospital No. 2, where the medics rendered him the necessary medical aid and fixed numerous bodily injuries. The next day he lodged a complaint to the prosecutor’s office, where the traces of beating were fixed by a forensic expert.

In July 2002 police officers L. and B., as well as their commander, repeatedly came to Ovsienko’s home and tried, in different ways, to settle the conflict and persuade him to refuse from his complaint. Being afraid of revenge of the policemen, his parents yielded to the persuasion and agreed to refuse from the demand to start the criminal case about the beating of their son. For the purpose of settling of the conflict L. and B., by recommendation of their chief, promised to pay 1500 USD to Ovsienko’s parents as compensation of damage inflicted to their son.

The experience shows that criminal cases against representatives of the Ministry of Interior and prosecutor’s office are often hopeless from the very beginning. Besides, the considered case is complicated by personalities of the participants. One side in this case are representatives of law-enforcing organs, who have no criminal records, have minor children and are characterized rather positively, and the other side is the man, who has been brought to criminal responsibility before.

Taking into account all circumstances of this case, the court took the decision to replace the original sentence of  3 years deprivation of liberty with a  2 year suspended sentence with deprivation of right to work in law-enforcing organs. The court acknowledged the demand of the victim about the compensation of the moral damage equal to 50 thousand hryvnas to be groundless and diminished it to 5 thousand. Ovsienko is going to appeal against this court decision.

We want to recollect the case of Mykhaylo Koval about application of brutal violence by policemen to Koval’s family, which case has been recently instituted by the prosecutor’s office. As much as 4 years have passed from the moment of commitment of this crime! And one can easily imagine, how much time and efforts are spent for every step in this case. So, we believe that the very fact that V. Ovsienko’s case was considered in court, to say nothing about pronouncement of the guilty verdict, is a very important result both for the victim and for the entire problem of crimes committed by workers of law-enforcing organs.

We do not mention the names of the policemen, since the verdict has not took effect yet.

Chernigiv human rights protection public committee

9 November 2005

On 27 September 2005 pensioner Mykhailo Koval, a Chernihiv dweller, was a hero of the feature “Svidok” broadcasted by the all-Ukrainian TV company “NTN”. Mykhaylo Koval told in his interview about the terrible events, which had occurred in the life of his family: about how he and his relatives had been tortured by officers of law-enforcement organs. He mentioned several names of Chernihiv officials of high rank, in particular, Eduard Aliokhin, the new head of the Chernihiv town police directorate. This interview resulted in a law suit from  Mr. Aliokhin against Mykhaylo Koval and the TV company “NTN” on protection of honor, dignity and business reputation. Mr. Aliokhin denied all accusations concerning him and demanded to refute the discrediting information. The claim was handed to the Desnyanskiy district court of Chernihiv.

It is interesting that the police head lodged the claim only three weeks after the broadcast of this feature: he either cherished the resentment or followed somebody’s advice.

I do not want to assume the functions of our honest, unbiased and fair court and to say who is guilty in this situation. I only want to lay emphasis on the long-lasting sufferings of the person, who passed through unfairness and pain – not physical pain inflicted by torture, but psychological sufferings inflicted by shame and helplessness, when he could not defend his right for life and respectful attitude to his personality. When there was nobody, who could help him. When the people, who had hurt him, lodged a claim against him… And Mr. Koval is one of the people, who are not afraid to protest, openly and honestly, against this arbitrariness, which becomes more and more active in our country.

Chernigiv human rights protection public committee

“The President of Ukraine has the constitutional authority to dismiss the General prosecutor of Ukraine without any restrictions and exceptions. Such decision of the head of the state does not require specification of the grounds for dismissal and/or observance of the demands of operating laws, since it has discretionary character and belongs to the public-legal sphere”.

Explanation: The question of dismissal of General prosecutor of Ukraine from his post is regulated by item 11 of part 1 of Article 106, part 1 of Article 122 of the Constitution of Ukraine, as well as by parts 1 and 2 of Article 2 of the Law of Ukraine “On prosecutor’s office”.

Part 1 of Article 2 of the Law of Ukraine “On prosecutor’s office” repeats the corresponding constitutional provisions: “The General prosecutor of Ukraine is assigned to his post by approbation of the Supreme Council of Ukraine and is dismissed by the President of Ukraine. The Supreme Council of Ukraine can express distrust to the General prosecutor of Ukraine, which results in dismissal from his post”.

The second part of this article envisages the cases, where the authorities of General prosecutor of Ukraine are terminated obligatorily: “The General prosecutor of Ukraine is dismissed form his post also in the case of:

-  end of the term, for which he was appointed;

-  impossibility to fulfill his duty because of the state of health;

-  violation of the demands about not combining jobs;

-  coming into effect of guilty verdict against him;

-  termination of his citizenship;

-  his appeal about dismissal from the post by own wish”.

The word “also” means that part 2 of Article 2 of the Law of Ukraine “On prosecutor’s office” is an independent norm, which presents the list of obligatory grounds for dismissal of the General prosecutor of Ukraine and does not restrict the action of part 1 of Article 2 of this Law.

According both to the Constitution of Ukraine and the special Law of Ukraine “On prosecutor’s office”, the authority of the President of Ukraine to dismiss the General prosecutor of Ukraine is not restricted – this authority is discretional (in own opinion of the President). The Law additionally determines only the cases of obligatory dismissal of the General prosecutor of Ukraine from his post.

This means that the President of Ukraine can dismiss the General prosecutor of Ukraine on any ground (it may be adduced in a corresponding President’s edict, but may be not adduced). This distinguishes the General prosecutor of Ukraine from, for example judges, for dismissal of which the exhaustive list of reasons is adduced in Article 126 of the Constitution of Ukraine, or from MPs, whose authorities are terminated only in the cases envisaged by Article 81 of the Constitution of Ukraine. At the same time, the procedure of dismissal brings the General prosecutor near to the members of the government (see Article 115 to of the Constitution of Ukraine).

According to the Resolution of the Constitutional Court in the case on juridical of the acts on appointment or dismissal of state officials of 7 May 2002, “legal regulation by the Constitution of Ukraine and special laws of Ukraine of the status of the Prime Minister of Ukraine, members of the Cabinet of Ministers of Ukraine and other state officials (part 1 of Article 9 of Law of Ukraine “On state service” of 16 December 1993 No. 3723-XII) does not mean that the provisions of other laws concerning the relations not regulated by special laws are not applied to them. Taking into account the above-said, there are no juridical grounds to believe that certain norms of the Labor Code of Ukraine must be applied to the persons, who, in compliance with the Constitution of Ukraine, are appointed to posts or dismissed by the President of Ukraine or the Supreme Council of Ukraine”.

The relations connected with the dismissal of the General prosecutor of Ukraine, regulated by the Constitution of Ukraine and the Law of Ukraine “On prosecutor’s office”, as well as the Labor Code of Ukraine may not be applied in this case.

Besides, one should take into account the fact that the question of appointment of the General prosecutor (as a person of special state agency) belongs to the sphere of public right, which principally differs from labor laws as a sphere of private right. So, the public interest (necessity of the efficient realization of authorities of the General prosecutor of Ukraine) must dominate over the guarantees of labor (private) rights of a person, which occupies (occupied) this post.

Case No. 2-12238/05

RESOLUTION

In the name of Ukraine

On 18 November 2005 the Shevchenkivskiy court of Kyiv consisting of:

chief judge I. Moroz

judges: O. Biloshkap, N. Ignatchenko

and secretary O. Golub

considered at the open court sitting in Kyiv the appeal lodged by Svyatoslav Piskun against the President of Ukraine about acknowledgement of Edict No. 1441/2002 of 14 October 2005 as illegal, its cancellation and obligation to take the measures for his resuming on the post.

The court resolved:

The plaintiff turned with the claim on acknowledgement as illegal and cancellation of Edict No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine”, motivating the claim with the argument that he was illegally dismissed from the post of General prosecutor of Ukraine by the mentioned Edict, contrary to the operating laws of Ukraine and the Constitution of Ukraine; thus, he asks to reinstate him on the post.

The claimant grounds his demands on the fact that the Constitution of Ukraine envisages guarantees from the illegal dismissal and the duty of the organs of state power to act on the basis, within the limits and by methods envisaged by the Constitution of Ukraine. However, the President of Ukraine issued Edict No. 1441/2002 of 14 October 2005, which contradicted the operating laws of Ukraine, in particular the Law of Ukraine “On prosecutor’s office”, since it did not contain the grounds of dismissal of the claimant from the post of General prosecutor of Ukraine. So, the plaintiff reckons that the considered Edict is illegal.

At the court sitting the plaintiff and his representatives supported the declared demands, adding that on the day of issuing of the Edict the claimant had been temporarily not-able-bodied, which was confirmed by the sick-list.

Representatives of the defendant did not acknowledge the plaintiff’s claim, stating that the considered Edict was an individual legal act, which followed from the constitutional-political responsibility of the state official -- General prosecutor of Ukraine, and was issued by the President of Ukraine within the limits of authorities given to him by item 11 of part 1 of Article 106 of the Constitution of Ukraine. So, the mentioned act has the constitutional-legal character, is a subject of constitutional jurisdiction, and consideration of this question is related to jurisdiction of the Constitutional Court of Ukraine. So, the plaintiff has no right to appeal against this act to a court of general jurisdiction in the framework of administrative proceedings.

The court sitting has established that the President of Ukraine issued Edict No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine”, which read: “In accordance with item 11 of part 1 of Article 106 of the Constitution of Ukraine, to dismiss Piskun from the post of General prosecutor of Ukraine”.

This Edict was issued by the President of Ukraine before the end of the five-year term of authorities of the General prosecutor of Ukraine envisaged by Article 122 of the Constitution of Ukraine, which was not contested by the sides.

According to explanations of the claimant and his representatives, they did not dispute the right of the President of Ukraine to dismiss the General prosecutor of Ukraine, but they contested the legality of the considered Edict of the President of Ukraine concerning groundlessness of dismissal of the plaintiff.

Article 55 of the Constitution of Ukraine, regulating the court protection of human and citizens’ rights and freedoms, guarantees to everybody the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers.

Article 43 of the Constitution of Ukraine guarantees court protection from unlawful dismissal.

According to Resolution of the Constitutional Court of Ukraine No. 8-рп/2002 of 7 May 2002 on the constitutional appeal of the President of Ukraine about the official interpretation of the provisions of parts 2 and 3 of Article 124 of the Constitution of Ukraine (on jurisdiction of the acts on appointment or dismissal of state officials) states that the appointment and dismissal of state officials by the President of Ukraine and the Supreme Council of Ukraine cannot restrict their right for court protection in case of the illegal dismissal.

Article 124 reads that judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction, to which, in compliance to Article 125 of the Constitution of Ukraine, specialized courts are related.

According to Article 150 of the Constitution of Ukraine and Article 13 of the Law of Ukraine “On the Constitutional Court of Ukraine”, the authority of the Constitutional Court of Ukraine comprises deciding on issues of conformity with the Constitution of Ukraine (constitutionality) of the laws and other legal acts of the Supreme Council of Ukraine; acts of the President of Ukraine; acts of the Cabinet of Ministers of Ukraine; legal acts of the Supreme Council of the Autonomous Republic of Crimea.

In compliance with Article 150 of the Constitution of Ukraine and Article 40 of the Law of Ukraine “On the Constitutional Court of Ukraine”, these issues are considered on the appeals of the following categories of subjects of the constitutional appeals: the President of Ukraine; no less than forty-five National Deputies of Ukraine; the Supreme Court of Ukraine; the ombudsperson of Ukraine; the Supreme Council of the Autonomous Republic of Crimea.

A constitutional appeal contains the request about acknowledgment of the appealed act as unconstitutional. Article 152 of the Constitution of Ukraine states that laws and other legal acts, which are deemed to be unconstitutional, lose legal force.

According to Article 143 of the Law of Ukraine “On the Constitutional Court of Ukraine”, citizens of Ukraine can turn to the Constitutional Court only with the constitutional appeals on the questions of conclusions of the Constitutional Court in case of the necessity of official interpretation of the Constitution of Ukraine and laws of Ukraine.

The methods of protection from illegal dismissal are cancellation of the act and resuming on the post. This is also confirmed by Article 255 of the Labor Code, which, according to Article 1, is applied to labor relations of all employees (“in case of dismissal without legal grounds or illegal transfer to another job, an employee must be reinstated on his previous post by the organ, which considers the conflict”).

Thus, the claimant cannot appeal against the act at issue in the framework of constitutional jurisdiction, since, according to the law, a citizen of Ukraine cannot be a subject of constitutional appeal. And the official interpretation of the norms of the Constitution of Ukraine regarding this question is given by the Constitutional Court in the above-mentioned resolution.

Articles 8, 19, 22, 24, 43 and 55 of the Constitution of Ukraine establishes and guarantees the right of every citizen for the efficient court protection and restoration of the abused rights in case of illegal dismissal.

The above-stated norms proclaim the superiority of right and obligation of law for all citizens of Ukraine, and, in accordance with the demands of Article 106 of the Constitution of Ukraine, the President of Ukraine issues decrees and directives on the basis and for the execution of the Constitution and the laws of Ukraine. So, such acts may be checked for compliance not only with the Constitution, but also with the laws of Ukraine; check of legality of these acts is a function of courts of general jurisdiction.

Reasoning from the contents of the claim, the plaintiff does not dispute constitutionality of the legal act of the President of Ukraine, but legality of the act of individual action, its conformity with Ukrainian laws, including the Constitution of Ukraine as the Basic Law, which is stated in the preface to the Constitution of Ukraine.

It should be also pointed out that, according to Article 147 of the Constitution of Ukraine, the Constitutional Court of Ukraine decides on issues of constitutionality of legal acts, but not the acts of individual action. Resolution No. 8-рп/2002 of the Constitutional Court of Ukraine establishes that decision by the Constitutional Court of Ukraine on the issues of conformity of legal acts with the Constitution of Ukraine (constitutionality) of legal acts of the President of Ukraine and the Supreme Council of Ukraine does not exclude the possibility of appealing to courts of general jurisdiction about legality of the acts of the President of Ukraine or the Supreme Council of Ukraine of individual action concerning the appointments or dismissals. The only exclusion are the acts, which are the result of constitutional-political responsibility of state officials, to which, in our case, the Constitutional Court has related in its Resolution the expression of distrust by the Supreme Council of Ukraine, which resulted in dismissal of the General prosecutor. The act of the President of Ukraine, issued not on the basis of distrust expressed by the Supreme Council, is not a result of constitutional-political responsibility of the General prosecutor of Ukraine; so, the considered Edict must be considered in the framework of administrative proceedings.

According to Article 19 of the Constitution of Ukraine, 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.

Article 123 of the Constitution of Ukraine reads that organization and operational procedure for the bodies of the prosecution of Ukraine are determined by law.

According to Article 6 of the Law of Ukraine “On prosecutor’s office”, organs of prosecution of Ukraine form the united centralized system headed by the General prosecutor of Ukraine; they realize their authorities on the basis of observance of the Constitution of Ukraine and the laws acting on the territory of the republic, independently of any organs of state power, officials, decisions of public associations and their organs.

Article 7 of the Law of Ukraine “On prosecutor’s office” guarantees the independence of prosecutor’s office from any power organs and state officials.

In compliance with the above-mentioned norms, the prosecutor’s office headed by the General prosecutor of Ukraine is an independent centralized organ and is not accountable to the President of Ukraine or other persons. The only organ, to which the General prosecutor must report on his activities and activities of the organ subordinate to him is, according to Article 2 of the Law of Ukraine “On prosecutor’s office”, the Supreme Council of Ukraine. Just this organ can bring the General prosecutor to constitutional-political responsibility and to express distrust, which would entail his dismissal.

Article 122 of the Constitution of Ukraine reads that the term of authority of the General prosecutor of Ukraine is five years. In accordance with this article of the Constitution of Ukraine and Article 2 of the Law of Ukraine “On prosecutor’s office”, the Supreme Council of Ukraine may express no confidence in the General prosecutor of Ukraine, which results in his resignation from office. The General prosecutor is also dismissed in the following cases: expiration of the term, for which he has been appointed; inability to fulfill his duty because of the state of health; violation of the demands about not combining jobs; coming into effect of guilty verdict against him; termination of his citizenship; his appeal about dismissal from the post by own wish.

However, refers to the grounds for dismissal of the General prosecutor of Ukraine, envisaged by Article 122 of the Constitution of Ukraine and Article 2 of the Law of Ukraine “On prosecutor’s office”, are absent in the considered Edict.

Article 43 of the Constitution of Ukraine and Article 5-1 of the Labor Code guarantee to citizens the protection from unlawful dismissal, that is dismissal that took place not on the basis of law.

Article 19 of the Constitution establishes three unalienable conditions of legality of actions or decisions: they must be carried out only on the grounds, within the limits of authority, and in the manner envisaged by the law. Yet, in the consideration case the legal grounds for dismissal of the claimant are absent in the Edict.

Therefore, the court reckons that the dismissal of the General prosecutor without mentioning of the grounds of this dismissal may be regarded as influence on the General prosecutor of Ukraine and meddling in his activities, since it creates the dependence of the General prosecutor of Ukraine and his actions or decisions on the state official – defendant in this case.

The court also takes into account the fact that the Constitutional Court, in its Resolution No. 8-рп/2002, drew the following conclusion: there are no juridical grounds to reckon that certain norms of the laws on labor do not concern the members of the Cabinet of Ministers of Ukraine, heads of other central organs of executive power and the persons, who are appointed to or dismissed from the posts by the President of Ukraine and the Supreme Council of Ukraine. According to with Article 11 of the Law of Ukraine “On state service”, state employees have the right to defend their legal rights and interests in higher state organs and in compliance with legal procedure, and they can appeal directly to court against a decision about termination of state service (Articles 11 and 32 of the Law).

Court cannot accept the argument of representatives of the defendant that the post of General prosecutor of Ukraine is political one, since this contradicts the norm of Article 121 of the Constitution of Ukraine, Articles 2, 3, 5, 6 and 7 of the Law of Ukraine “On prosecutor’s office” containing the list of functions of prosecutor’s office of Ukraine, not-subordination and independence of prosecutor’s office from power organs, except the Supreme Council of Ukraine and the single case of constitutional responsibility (Article 122 of the Constitution of Ukraine) to the Supreme Council of Ukraine, which is pointed out in the Constitutional Court Resolution No. 8-рп/2002. Moreover, there is Article 3 of the Administrative Code of Ukraine, which separates the political posts and prosecutors in the explanation of the term “public service”.

Besides, the court reckons that the protection from the illegal dismissal, guaranteed by Article 43 of the Constitution of Ukraine, as well as the norm of the Labor Code about inadmissibility of dismissal during temporary incapacity for work, must be applied to the claimant, since he has produced proofs of his temporary incapacity for work on 14 October 2005 (medical certificate No. ААВ № 313913).

Therefore, the court comes to the conclusion that Edict of the President of Ukraine No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine” is illegal, and the rights of the claimant must be protected by means of cancellation of this Edict and reinstatement of the claimant on the post of General prosecutor of Ukraine since 14 October 2005.

Besides, the court also regards as a commonly known circumstance, which must not be proved, the decision of the Pecherskiy district court of Kyiv of 9 December 2004 (case No. 2-4541) concerning the controversy among the same persons and connected with the same situation. The mentioned court decision in the civil case, which has come into legal force, reads that the dismissal of the claimant from the post of General prosecutor of Ukraine by Edict of the President of Ukraine without mentioning of any grounds violates Article 2 of the Law of Ukraine “On prosecutor’s office”, and so, in compliance with the demands of Article 72 of the Code of administrative proceedings of Ukraine, this circumstance must not be proved again.

On the basis of the above-stated, being guided by Articles 8, 19, 22, 24, 43, 55, 64, 103, 106, 121, 122, 123, 124, 147, 150 and 152 of the Constitution of Ukraine, Articles 13, 40 and 43 of the Law of Ukraine “On Constitutional Court of Ukraine”, Articles 2, 3, 5, 6, 7 and 56 of the Law of Ukraine “On prosecutor’s office”, Articles 3, 6, 15, 17, 72, 158-163 and 256 of the Code of administrative proceedings of Ukraine, the court

RESOLVED:

To satisfy the demands of Svyatoslav Piskun.

To regard as illegal Edict of the President of Ukraine No. 1441/2002 of 14 October 2005 “On dismissal of S. Piskun from the post of General prosecutor of Ukraine” and to cancel it.

To reinstate Svyatoslav Piskun on the post of General prosecutor of Ukraine since 14 October 2005.

The decision about reinstatement of Svyatoslav Piskun on his post must be executed immediately.

The appeal against the Resolution can be lodged to the Appeal court of Kyiv by dint of handing of petition about the appeal to the Shevchenkivskiy district court of Kyiv within ten days after the day of pronouncement of the decision and handing of the appeal claim within twenty days after handing of the petition about the appeal.

I should make certain things clear at the outset.

Firstly, I experience an unparalleled, almost physical, aversion to Piskun the man.  For me he is a genius of loathsomeness, the epitome of the jackal Tabaki from the magic tale of Rudyard Kipling about Mowgli. Piskun always knows how to find the most vulnerable point in any person, as well as what the best moment is to sink his rotten poisonous fangs in.  Once as a child I read a Crimean Tatar fairytale about an evil Khan who, where his heart should have been, had neither a stone, nor a piece of iron or wood, but rather a ball of wool.  Because if you tap a stone, a piece of iron or wood, you get at least some kind of response, but what do you get if you tap wool?  So just such a ball of wool is what Piskun has inside him – instead of a conscience, honor, dignity, morality and so forth[1].

Secondly, I personally did all I could, and maybe even a little more, to ensure Yushchenko’s victory. And at the present time I consider Yushchenko and Co., regardless of the numerous idiocies that he and his, forgive the word, «team», commit to be the least dangerous ‘players’ in our country although … only in comparison with other “leaders of electoral preferences”.

Thirdly, there is indeed a “court mafia” in Ukraine. It is specifically with the leaders of this that Yushchenko periodically holds “productive” meetings on the subject of “the further consolidation and implementation of the principle of the rule of law”

Fourthly, I absolutely and without qualification endorse (as a person and as a voter) Piskun’s dismissal and the refusal to voluntarily execute the ruling calling for his reinstatement as Prosecutor General despite the fact that his dismissal was unlawful and the non-execution of a court ruling is an offense.

And now to get down to the real issue.

In order to consider any judicial issue without prejudice, one needs to distance oneself from personalities, to so to speak, “blindfold Lady Justice”. Thus, the task is formulated in the following way: “How can any, hypothetical, President dismiss any, hypothetical, Prosecutor General of Ukraine?”  Note: particularly sensitive readers may like to imagine that this is not Yushchenko dismissing Piskun but, for example, Kuchma – Shyshkin[2].

We need to analyse:

1. Point 11 of Part 1 of Article 106 of the Constitution in accordance with which the President of Ukraine appoints the Prosecutor General of Ukraine to office with the consent of the Verkhovna Rada, and dismisses him or her from office.

2. Part 1 of Article 122 of the Constitution whereby once again the Prosecutor General is appointed to office with the consent of the Verkhovna Rada of Ukraine and is dismissed from office by the President of Ukraine, with the Verkhovna Rada however able to express a vote of no confidence in the Prosecutor General which shall result in his or her resignation.

3. Article 123 of the Constitution according to which the organisation and operational procedure for the bodies of the Prosecutor’s office are determined by law.

4. The Law of Ukraine “On the Prosecutor’s Office” of 1991 “the year of birth” in its current version, which contains Article 2 in accordance with which: “…the Verkhovna Rada of Ukraine can declare a vote of no confidence in the Prosecutor General of Ukraine which shall result in his or her resignation from office. The Prosecutor General of Ukraine shall be dismissed from office also in the following cases: on the expiry of the term of office; on being unable to perform his or her duties due to their state of health; on the infringement of requirements as to incompatibility of other activities; the coming into legal force of a conviction against him or her; the termination of his or her citizenship; if the person hands in his or her resignation”.

5. The Decision of the Constitutional Court of Ukraine No. 8-pn/2002 from 07.05.2002[3] in connection

with the constitutional petition of the President of Ukraine seeking an official interpretation of the provisions of parts two and three of Article 124 of the Constitution of Ukraine (the so-called “case concerning the jurisdiction of acts on the appointment or dismissal of officials”) which was apparently supposed to explain the points at issue for those using the law, but which instead itself requires comprehensive interpretation.

I assert that any person who has at least a basic secondary education is capable, by making some mental effort, of analysing by themselves the by no means considerable weight of normative acts outlined here and come to their own conclusion as to the legal position of both parties in the case, as well as with regard to the decision of the court. 

And if one simplifies complicated legal relations still further to the level of a “binary code”, then what it boils down to are the dilemmas:

With regard to the dismissal of a hypothetical Prosecutor General of Ukraine, a hypothetical President of Ukraine has DISCRETIONARY powers (that is s/he can dismiss the said AT HIS OR HER OWN DISCRETION, PROVIDING ABSOLUTELY NO JUSTIFICATION, – for being obstreperous; for having a greasy mug; for not being partisan; for having a loose tongue; for showing an excessive desire to keep to the law and to get to the truth of something – take your pick!)

Or:

a hypothetical President of Ukraine has the right to dismiss a hypothetical Prosecutor General of Ukraine on the basis of current legislation (we will leave aside for the moment the question of how complete and adequate this very legislation may be).

And one further statement:

A hypothetical Prosecutor General of Ukraine dismissed from office by a hypothetical President of Ukraine HAS THE RIGHT, just like any other citizen of Ukraine, to seek redress from the courts.

Or

S/he doesn’t have this right since an ordinary Ukrainian citizen is not legally able to apply to the Constitutional Court of Ukraine to have an act of the President of Ukraine declared unconstitutional, and therefore, following the logic of Holovaty (the Minister of Justice – Ed.) and his supporters, the option of appealing to a court of general jurisdiction is also excluded.

In my humble opinion, the resolution of Judge Ihor Moroz and his colleagues[4]  although something of a ‘potpourri’ ruling with a whole mixture of possible judicial aspects of complex legal relations is however correct in its essence.  I entirely support the legal position taken in the resolution and the grounds given.  Many people can confirm that even before the announcement of the ruling I used virtually the same words to explain the flaws in the legal position of the President’s team.  The fundamental principle here is that so-called “constitutional-political responsibility” can come into play only on a vote of no confidence from Parliament (the Verkhovna Rada) since this is a collective legislative body, and the President, who is the highest official in the State and obliged to act exclusively within the framework of the Constitution and legislation of Ukraine, CANNOT HAVE this type of responsibility since it constitutes kuchmism, wild-west mentality and authoritarianism. 

I am convinced that no normal person would like the option of a president who is wilful and impotent. Yet for some reason, when it comes to a repulsive creature like Piskun, common sense is blurred by hatred and the desire to ‘get” the swine at any price!

However is Piskun really worth SUCH a price? Not for a minute!  Even more that, given the total impossibility of Piskun ever ACTUALLY being able to have his position restored, for him the role of clown who like a “wise fool” will teach Yushchenko and his “highly professional team of lawyers” about the rule of law from the screen of Channel 5 is entirely natural. “There is no sight more pleasing on this earth …” is specifically this absurd and idiotic situation which may at the end of the day prompt our political elite and society to begin an honest and open discussion about the horrendous state of affairs with the legislation and lawfulness in the country.  

It goes without saying that under Kuchma the law had virtually entirely lost its role as regulator of social relations in the country, having ceded their place to behind-the-scene intrigues, to all the ‘gangs’ and ‘squads’.   For that reason no one even set about refining the law since there was simply no need for it. During the time since Yushchenko came to office, he has proved unable not only to improve the situation, but even to fully understand it himself.  In the meanwhile, the law at the level of straight banal erudition is a science easy enough to learn, accessible even to a graduate of the Ternopil Finance and Economics Institute[5]. For that you need only pick up a textbook on the theory of State and the law for first-year law students from the book market on Petrivka St. and ask an “A” grade student from the Kyiv-Mohyla Academy to come for 10-15 minutes a day for individual lessons. I am certain that after just one month of scarcely taxing lessons our President would stop coming out with the mind-boggling legal nonsense which appals his supporters and gives his enemies cause for malicious satisfaction. 

It should be noted that Yushchenko and Co. had been single-mindedly moving towards this ignominious situation since the memorable ruling of the Supreme Court of Ukraine, as a result of which Yushchenko was justly, but unlawfully, made President[6].  As I predicted, Yushchenko never did understand that it was not he himself, and still less his lawyers, who won that court hearing, but the people who had risen up in protest, and that other similar “presents from kind Lady Justice” were not going to come tumbling down in future.  For some reason Yuschenko decided (or was convinced of it by the “legal geniuses” in his team), that the entire legal system would continue to deftly “work” for him, adapting itself to his somewhat original ideas of “what’s good and what’s bad” and being governed in this exclusively by principles of “abstract justice among friends”.

Piskun the Prosecutor General is already an oxymoron. However as regards his reinstatement to that post I, in contrast to many others, see entirely positive aspects.

Piskun held office for 9 months. What, was it not possible to solve the problem with him ahead of time?  I am certain that if, immediately following his inauguration, Yushchenko had approached the Appeal Court in Kyiv appealing against the decision of Judge Zhanna Bernatska from 9 December 2004 about the previous reinstatement of Piskun to this office[7], the court would have obliged and would have accepted his appeal, renewing the period for an appeal as one which had not been adhered to for good reasons.  It would have then been possible, without going too deeply into a legal maze, to have revoked Judge Bernatska’s ruling solely on the basis of the lack of grounds for extending the term for an appeal to the court by Piskun himself.  However in January 2005 Yushchenko and his “single Orange team” were enthusiastically sharing out the choicest pieces of the cake and they didn’t have time to think about some “main eye of the State”.  Why did Yushchenko not even try to initiate a vote of no confidence in Piskun in the Verkhovna Rada? Why didn’t he give a directive to “raise” all the compromising material on him so thick on the ground?  Why? Why? Why?

How was it possible to “buy” the “convincing” arguments of Holovaty, Poludyonny[8] and God knows who else that supposedly Piskun could be dismissed without providing reasons?  Did Yushchenko listen to the “other side”, that is, to people (and there were plenty of such people, myself included) who unfailingly foresaw precisely this course of events?

Yushchenko’s main problem is that he does not realize the depth of his legal ignorance. He doesn’t understand that he needs to learn himself and that, both in order to resolve specific issues, and to form legal strategy, he needs to enlist real specialists who will tell him THE SIMPLE TRUTH, and not only sycophants who whisper in his ear precisely and solely that which he wishes to hear.  Unfortunately, for our country this is a serious problem: even those who have a decent understanding of legal issues, for their own opportunistic motives, without damaging their own reputation, say things which are legally very dubious.  The latest example of this was Volodymyr Shapoval, a serious and authoritative specialist and Judge of the Constitutional Court, who took part in passing that very decision of the Constitutional Court which was cited by both Piskun, and Holovaty, each claiming it as proof of their legal justification!  And what about the conclusions of the Helsinki Group![9]  One wants to howl, I swear: people whom it would be difficult to accuse of being inclined towards totalitarianism or authoritarianism, are prepared to defend the President’s discretionary powers and deny the right of the individual to legal defence!

If a person wants to defend someone from a thug, s/he needs to be not only noble, but also on a more banal note able to fight better than the said lout. No morality will save you if you want to create a website and you’re not a programmer. With the help of morality you can’t win the world chess championship, establish a world record for the hundred metres or manage the economy.  I think this should be clear even for Viktor Andriyovych. So why can he not understand that in order to manage the country and when trying to resolve complex legal issues morality is even more insufficient?

We need real professionalism in any field where a battle is raging. In this specific case what was needed was the ability to run civil cases in courts of general jurisdiction.  Have Poludyonny or Holovaty often visited courts?  Such occasions have taken place but not so often that they could feel in their own element there. Piskun certainly does not have knowledge of the law at all, however he did his homework for this case (or it was done for him) well enough. It’s possible that Yushchenko’s team might have had some chance if the Shevchenkivsk court had not been headed by Boris Hulko, well-known protégé of a political force which is association with the “lawyers – footballers”.  When I discovered that crafty Hulko had palmed the case off onto Ihor Moroz, I immediately said, in front of plenty of witnesses that there was a likelihood of 99,6 % that within days we would have two Prosecutor Generals. This was because I know Ihor Moroz through court cases, know his level of professionalism and his reputation as a person who is a little on the timid side, but honest and principled.  He is one of those who won’t himself get into a fight, but if the fight has come right onto his doorstep, he’ll do his bit. I was convinced that he would not put the last vestiges of the Ukrainian justice system to shame and would pass a lawful ruling. It is clear that Hulko was confident of this, as well as all legally “wised up” friends and enemies of Yushchenko. I am aware from a huge number of sources independent of each other that there were attempts to warn Yushchenko that the legal position taken by Poludyonny and Holovaty was if not entirely flawed, then at least more than questionable.

The only result of these attempts was the true hysteria shown by Holovaty with regard to the “Jewish-Martian[10] judges’ conspiracy” and the accusations addressed at Ihor Moroz of being a “court mafioso”[11].

Clear as mud. And specifically Moroz!  Whether it is fitting for the Minister of Justice to descend to almost marketplace swearing directed at Ihor Moroz and other judges, let us hope, will be clarified by the Council of Judges who are apparently planning to hold a meeting on this question in the near future.

What is really important is not what happened to you but how you relate to what happened. I am appalled not by what Yushchenko and Co. do but by the fact that grown adults certainly over the age of consent who aspire to steer the course of the nation, DENY OBJECTIVE REALITY and INDISPUTABLE FACTS, and by doing so put themselves in an idiotic situation and “set up” the country.

Let me give an example. If I am flying, Batman-like, in my car, hurrying on urgent and important business, and a “daishnyk” [officer of the road police] stops me and shows me on his radar equipment the proud figure “160”, or around that, I am not going to scream at him that he’s a moron or degenerate, that he’s stopping me from getting on with my business and that in general he’s a total miscreant.  If I say all of that, the cop will decide either that I’m cracked or that I’m the relative of some Deputy or Minister or other, and that it’s that which has caused my arrant cheek meter to go wild.  Because to deny that you’re wrong when it’s obvious to everybody is a sign of stupidity or of weakness, and in no way evidence of being cool and macho. A person in such a situation will usually say something like: “Hey man, take this bribe, or make a formal record and … forgive me, and let me get away as quickly as possible – I’m really in a hurry, I really do need to rush!”  Piskun needed to be dismissed in any case and at any price – however it should have been done honestly, saying something like: “Dear friends! Legislation on this issue is extremely contradictory, and for that reason I am not certain that this decree is legally faultless.  However Piskun is a monster whose continued presence in office is causing irreparable damage to our society, and I am therefore forced to take this risk». And then he could have responded calmly to the ruling of the court especially since it was possible to not execute it at all without any consequences for himself. However doing this it would have been important to not forget to repeat at any opportunity that, “dear friends, I am very sorry that our legislation is so imperfect, labour laws, and executive, and all others, but we are working hard to perfect them!”

Thus, the legal institution of “reinstatement at work” is an unbridled Soviet mental aberration which effectively means the forced obligation to enter into a (labour) contract against the wishes of one of the parties, however for some reason this doesn’t seem to worry anybody!  No normal employer will even let someone in charge of a grain silo who has stopped being trusted back to work, and even if they do, in order to execute a court ruling, let them back, they will be forced to hire another person, and the “reinstated” person will be simply paid a salary while they look for iron-fast grounds for a legally impeccable dismissal. Not to speak of a chief accountant, not to speak of the Prosecutor General. Has anyone heard of Deputies from the blok “Nasha Ukraina” tabling a draft law that would put an end to this anachronism?  So there you are.

The execution of court rulings in Ukraine is in general from the realm of fantasy. In brief: if a person doesn’t want to adhere to the ruling, it is virtually impossible to force him or her to do so.  Ukraine will lose wads of cases lodged on these grounds with the European Court of Human Rights, while people spend years haunting the thresholds of bailiffs’ offices..  It was that same Ihor Moroz, having refused to “fit in” with the plans of Kyiv’s Mayor Omelchenko and his faithful “land six” Mukhovikov, who issued several rulings which obliged the Kyiv city territorial electoral commission to register the election of Deputy of the City Council, Petro Holovatenko. Everyone guessed what exactly the commission saw in these rulings, despite the criminal case launched due to the non-execution of the court ruling. At present Holovatenko has already won 18 court cases however has still not become Deputy. Given this, nothing remains but to wish Piskun a fair wind in the hopeless task of ACTUAL reinstatement in office. Since: Piskun has to travel a long path through the bailiff’s service where he is likely to get stranded still at the stage of determining the procedure and means of implementing the ruling, and then it will transpire that it is impossible to force Yushchenko to reinstate him in office because the latter has immunity and in general this topic is exclusively for hypothetical musings along the lines of “is there life on Mars”.

It is undoubtedly the case that Yushchenko receives all the negative fallout from the fact that he is knowingly breaking the law and not implementing the court’s ruling. Yet how different he would look in the situation where he said that he understood the court ruling, admitted that it could not have been otherwise, but that he was unable to implement it and that he was preparing to hold by his conscious violation of the law and take full political responsibility, given his lack of legal accountability.

I am convinced that the majority of Ukrainians feel little interest in the question of the President’s morality, especially given that the latter is somewhat specific.  People are concerned that he promotes the introduction of good laws and their observance, and first of all that he does not break them himself (with the exception of such cases as, for example, with Piskun). For this it is vital that the President has a really professional team of lawyers who are concerned with the law in itself, and not the level of “proximity to the body”.  A lawyer is needed not to take decisions instead of his or her client, but in order to explain to this client what points of view exist, what sort of options there are, and to determine the likelihood of this or that option.  It is not in the slightest obligatory to keep these people around you on a permanent basis – they can be called in order to resolve a specific issue of the type: “how can we dismiss Piskun and what could be the consequences of such a dismissal?”  The professionals should act as consultants and give their well-justified opinion.  However it is the President who must take responsibility.  And in the first instance he himself should ensure that he has at his disposal honest, sometimes unpleasant or inconvenient legal analytical drafts, on the basis of which he will be able to take conscious, adequate decisions. If he has insufficient or in general flawed information on which to base his decision, this points solely to his unsatisfactory work in forming the required team.

P.S. I hope that Viktor Yushchenko and his colleagues will at least have the sense to not put pressure on Ihor Moroz. I swear that if all our judges were such “Mafiosi” as him, our justice system would not now need reforming.

25-11-2005

 

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[1]  The author here gives a reference to the record of Piskun’s press conference following the Shevchenkivsk court’s resolution, published in the online newspaper: Obozrevatel on 24.11.2005 (www.oboz.com.ua).  In it Piskun stated that the issue was not about him personally. “It is a question of the rule of law and of legislation in Ukraine as an independent state which all loudly proclaim on all squares”.  He also claimed that his dismissal had been due to the President’s aides wanting to get rid of him due to criminal cases he said that the Prosecutor’s office had launched.  At the end when asked whether he had tried to return to work (he had not, but said he could have), he said that “ thousands of people” had come up to him the previous day on Maidan Nezalezhnosti [Independence Square], shaken his hand and said that they supported him.  (translator’s note)

[2]  Viktor Shyshkin was Prosecutor General from 1991 – 1993. He has since been on the committee investigating the murder of Georgy Gongadze and in November 2005 was appointed Judge of the Constitutional Court of Ukraine (translator’s note).

[3]  The author has provided a reference to the relevant Decision of the Constitutional Court. The main question was whether the statement in the Constitution that “the jurisdiction of the courts extends to all legal relations that arise in the State” should be understand as meaning that courts of general jurisdiction were competent to deal with issues involving the appointment or dismissal of officials by the President or the Verkhovna Rada. (translator’s note)

[4]  This was the Resolution of 18 November 2005 from the Shevchenkivsk District Court in Kyiv on the appeal lodged by former Prosecutor General, Sviatislav Piskun against his dismissal from office.  The court allowed the appeal stating that the Decree of the President dismissing Piskun had been unlawful and revoking it.  (translator’s note)

[5]  that is, the institute which Viktor Yushchenko graduated from (translator’s note)

[6]  The Ruling here was, of course, that of 3 December 2004 which overturned the results of the second round of voting in the Presidential elections because of massive vote-rigging and called for a re-run. There is a reference to another article by the author from 08.02.05, in which she states that the Supreme Court, finding itself in the position of a doctor forced to choose between the life of the mother or of her unborn child, chose the “mother” – justice, instead of the “child” – lawfulness, that is, taking a decision which was fair, but not in keeping with the letter of the law.  (translator’s note)

[7]  Piskun had been Prosecutor General under Kuchma but was dismissed on 29 October 2003, possibly because he had reported that there was new evidence in the Gongadze Case. The Kyiv court, presided over by Judge Bernatska, declared the dismissal illegal on 9 December 2004, and he was reinstated a day later.  (translator’s note)

[8]  Serhiy Holovaty, as mentioned above, is Minister of Justice; Mykola Poludyonny is Presidential Advisor and Head of the Central Service of Legal Policy of the President’s Secretariat. (translator’s note)

[9]  The author is mistaken here since there is no commentary of the Helsinki Group. It is possible that she is thinking of the commentary of the Center for Political and Legal Reforms with regard to this decision which was placed on the website of the Helsinki Group (Editor of PL)

[10]  The author is using a play on words, since the standard targets of certain rabid bigots in Ukraine and Russia has often been “Jewish-Masonic conspiracies”.  It is not a direct quote. (translator’s note)

[11]  Serhiy Holovaty gave an interview to “Ukrainska Pravda” on 21.11.05 (www. pravda.com.ua) in which he accused the court of procedural irregularities in not noting the main arguments and in not listening to all parties. He suggested that the new Prosecutor General should launch criminal proceedings against the three judges of the Shevchenkivsk court for issuing a decision they knew to be incorrect and said that they were being protected by a “mafia of judges”.  (translator’s note)

The European Court of Human Rights has ruled in favor of Ukrainian citizens in 13 more claims against Ukraine.

In particular, the Court acknowledged the violation of rights of Simferopol dweller Viktor Gorshkov, who had been discharged from a psychiatric hospital two years later than he should have been.  In another case the European Court bound Ukraine to pay 2.2 thousand euro to Dnepropetrovsk inhabitant Oleksandr Stryzhak, who had not obtained a subpoena, and 1.7 thousand euro to Oleksandr Kechko from Donetsk. These data were communicated by the informational agency “Ukrainski novyny” with reference to the press service of the Court.

17 Ukrainians have to obtain compensation for protraction of consideration of their cases in courts. The total sum of these payments is 29.9 thousand euro. The European court approved such decisions in 9 cases against Ukraine. Five of the claimants are the dwellers of Donetsk and the Donetsk region, six are Chernigiv dwellers, one person – from the Lugansk region; there are inhabitants of Khmelnitsk and Kyiv, a family from Evpatoria.

Since the beginning of 2005 the European Court issued 66 decisions against our country, 23 of them have already came into force. To compare: in 2002 only one decision was approved, in 2003 – 6 and in 2004 – 13.

10 November 2005

The Ministry of Justice does not intend to appeal the ruling passed by the European Court of Human Rights in the case “Myroslava Gongadze v. Ukraine”.  This was announced by the Minister of Justice, Serhiy Holovaty. The Minister emphasised that his policy would differ from that which had been previously followed by the National Bureau on issues relating to the observance of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  LIGABusinessinform was told in the press service of the Ministry of Justice, that Mr Holovaty had already discussed this with the Ombudsperson on issues relating to the observance of the Convention for the Protection of Human Rights and Fundamental Freedoms, Baleriya Lutkovska.

 

“The Bureau is given the task of protecting human rights and ensuring the observance of the Convention and not, as was the case previously, lodging an appeal to the higher chamber after every case won by a Ukrainian citizen. Such a policy took time and it was unclear whose interests were being defended – whether that of State funds, or of State bureaucrat officials, or of the judge in Ukraine who had issued an unfair ruling”, Mr Holovaty stressed.

 

“The policy and actions of the Ombudsperson of the National Bureau must be different: a person managed to get to the truth, achieved just satisfaction, achieved reinstatement in the law – the State, the Ministry of Justice must be on the side of the individual”, the Minister believes.

http://liga.net/news/167076.html

 

Commentary of “Prava Ludyny”:

In our view, Holovaty is only correct in part. Certainly in cases like that of the Gongadze case or similar, one should probably not lodge an appeal with the Higher Chamber.  But after all it does happen that the claimant makes an unreasonable demand for compensation for damages as in the case of Sovtransavto v. Ukraine.  The Ombudsperson lodged an appeal to the Higher Chamber and the latter significantly reduced the sum which had to be paid.

 

There are two parties to a court case – the claimant and the State. The agent of the State should after all defend the interests of the State, and not of the procedural opponent, and it would, in our opinion, be incorrect to deny the right to an appeal. Another question is how we should understand “the interests of the State”. Indeed, in many cases the interests of the State would be best served by acknowledging that the violation of the Convention took place. Incidentally, the National Bureau in this instance is actually behaving sensibly as can be seen by the case of Afanasyev.

Yevhen Zakharov

People in Ukraine have unrealistic expectations about defending their human rights.  This was the view expressed by the Chairperson of the Supreme Court of Ukraine (SCU), Vasyl Makarenko, during an address given to the VII Congress of Judges of Ukraine on Wednesday.

 

A correspondent from LIGABUSINESSinform reports that Mr Malyarenko talked of ill-considered judicial refom which in his opinion had led to a dramatic increase in the number of cases which were being presented for consideration in courts of all levels.

 

Mr Malyarenko noted that whereas throughout 2001 Ukrainian courts had reviewed 3 million cases, this same number of cases had been dealt with by the courts merely in the first half of 2005.  An inaccurate assumption that a cassation appeal of a case may only be considered by the Supreme Court had meant that the highest court in Ukraine was “literally inundated with cases”, Mr Malyarenko stated.

 

He also mentioned that at the present time there were approximately 78 thousand cases awaiting Supreme Court consideration and that the majority of these had no likelihood of being allowed. “We will soon be forced to store filing cabinets with case files in the toilets”, Mr Malyarenko quipped.

 

In order to rectify the situation, the Chairperson of the SCU suggested temporarily delegating cassation appeal functions to regional level courts. “This would enable us to resolve many of the problems which have accumulated in the court system in Ukraine” he said in his summary.

LIGABUSINESSinform

Is the Ministry of Justice abolishing monitoring of telecommunications?

A letter has arrived, addressed to Yevhen Zakharov in his capacity as Chairperson of the Board of the Ukrainian Helsinki Human Rights Union and signed by the Deputy Ministry, I.I. Yemelyanova, stating the following:

“On the instructions of the Cabinet of Ministers of Ukraine, the Ministry of Justice of Ukraine has given your letter of 15 September 2005 consideration. Within the framework of its competence, it would inform you that your suggestions and comments will be taken into consideration in the drawing up of draft laws which are to be prepared by the Ministry of Justice of Ukraine.

At the same time, with regard to the issue of the Order of the State Committee for Communications No. 122 of 17.06.2002[1], we would state that the Ministry of Justice in a letter dated 13 October 2005 No. 37229-24 called upon the Ministry of Transport and Communications within a five-day period to declare no longer in force the Order No.122 of the State Committee for Communications and Information Automation of Ukraine from 17.06.2002. In the event that the above-mentioned Order is not brought into compliance with current legislation, the Ministry of Justice will begin procedure for revoking the decision on State registration of normative legal acts included in the State Register which were affirmed by the Order No. 32/5 of the Ministry of Justice of Ukraine from 31.07.2000.

Let’s wait and see.

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[1]  Order No. 122 of the State Committee for Communications of 17 June 2002 stated that only Internet providers who had installed the State system for monitoring and who had received the relevant certificate would be entitled to serve State executive bodies

The Appeal Court in Kyiv has accepted for consideration an appeal lodged by the legal adviser to the “Maidan” Alliance against the Ruling of the Pechersky Court in Kyiv which had refused to accept that the inaction of the President of Ukraine, Viktor Yushchenko, was against the law.

 

The inaction of the “Orange” President had consisted of not providing a response to a formal request for information which asked that the names and details of Decrees and Instructions of the Head of State issued under the stamp “Not to be published” be given.

 

On 12 September 2005 the Capital’s Pechersky District Court issued a ruling refusing to admit the claim and de facto believing the representative of the respondent on his word, with a letter being presented at the court hearing which was supposedly a letter of the Secretariat of the President (and not of the person to whom the request for information was addressed, of course) containing a refusal to provide the information. As “proof” that this response had been sent, the court of first instance accepted a sheet from a supposedly internal register of outgoing documents of the Secretariat which had neither signatures nor stamps.

 

 

The battle, therefore, continues and if there is no end to the practice of issuing new classified decrees and if previously issued “secret material” is not made public, the President can expect new unpleasant court encounters.  In the next few days the number of appeals should rise.

05.11.2005

Yury Shelyzhenko, for the agency Glavred.info

Volodymyr Chemerys is a legendary figure, a member of the Board of the Ukrainian Helsinki Human Rights Union, a participant in the student protests of 1991 – the “revolution on granite” which led to the resignation of Masol, one of the coordinators of the action “Ukraine without Kuchma” and a leading figure in the civic organization “Institut “Respublica” which is one of not many bastions of political idealism. Before the Ukrainian Presidential Elections in 2004 he did not on principle support any of the candidates and initiated the all-Ukrainian action “It’s shameful to vote!”. Mr Chemerys is a recognized specialist on the legal and technological aspects of civil resistance, “at home” among both those with left-wing and right-wing views.

Y. S: My first question, of interest to all of us at this time – will there be clashes on 7 November?

I would not like to be a prophet in the bad sense of this word, however I think there could well be run-ins. After unofficial conversations with representatives of various camps of confrontation, I have the feeling that they are getting ready for measures of force. As the events of 15 October this year showed, or those on 1 May 2004, the police cannot fulfil their proper function of protecting people’s rights. Monitoring carried out by the Institute “Respublica” has shown that this year there were far more infringements of the right to peaceful assembly than for the corresponding period of the previous year.

Y. S:  What does the Seventh of  November holiday mean for you?

For me it is no special holiday, and never was one. The question is who are the people who want to hold events for this occasions – those people who consider this day a special holiday, as well as those people who do not  consider it to be a holiday and don’t want anything special to be held. I believe that both sides have the right to express their position however they choose to do so.

Y. S:  Clearly such non-acceptance of the “red page of the Soviet calendar” is not typical for all Ukrainian left-wingers?

It is typical for the majority of the new Left, whose outlook is not based either on the official ideology of the Soviet Union which collapsed a long time ago, or on anti-globalist or anti-capitalist values of the world left-wing movement. I would like to stress that the new Left do not have a party, they exist still at the level of civic organizations – for examples, “Liva initiative” [“Left initiative”], “Robitnychy sprotyv” [“Worker resistance” – or of groups. There are also individuals who share our values, left-wing intellectuals such as Oleksandr Khomenko. As far as political parties are concerned, these are the old Left, the same communists who are sometimes called neo-Stalinists or Brezhnevites. All political parties presently to a large extent represent the interests of big capital. This also applies to the Socialist Party: the management of one commercial bank has virtually privatised their centres in the Kharkiv region.  We thought that elections based on proportional representation would change the situation, however in actual fact the complete opposite has occurred. Places in the lists are sold for massive amounts of money, especially after the appearance of such an “enticement” as Deputy immunity.  I know for sure that in one of the prominent parties, a place in the available part of the party list to the Verkhovna Rada costs 2 million dollars, to the Kyiv Council – 350 thousand and to district councils – 150 thousand.

Y. S:  How would you assess the actions of the Kyiv City State Administration which is attempting to have the holding of political demonstrations banned through the court?

They are behaving incorrectly, violating both Article 39 of the Constitution of Ukraine, and European practice, in particular judgements of the European Court of Human Rights and Article 11 of the European Convention on Human Rights and Fundamental Freedoms, which indicate that a State has the positive obligation to protect the right to peaceful assembly.  There have been well-known judgements of the European Court such as that from 21 June 1988 “Platform “Ärtze für das Leben" [“Doctors for Life”] v. Austria” where the court ruled that it was the duty of the State to safeguard, and not prohibit, the exercising of the right to assembly of both sides. The Institute “Respublica” called on the Kyiv City State Administration to stop its appeal to the court, however they continued regardless to made their application to the court for a ban on all demonstrations in the centre of the city on 7 November.  Previously the Shevchenkivsk Court had simply rejected such applications, however their latest ruling is extremely disappointing. The Communist Party of Ukraine has been banned from holding its holiday parade along Khreshchatyk Street and on Maidan Nezalezhnosti [Independence Square].  This court ruling is rather dubious from a legal point of view. However I understand that the Shevchenkivsk Court was, after the events of 15 October, acting on the assumption that the police would not be able to safeguard public order – possibly, from the point of view of the court, this seemed the only way to avoid confrontation.

Y.S:  A large number of different organizations have expressed the wish to take part in, on the one hand, the celebration of 7 November, or on the other hand, in anti-communist demonstrations.  Are conflicts at such demonstrations not attributable to poor coordination between those participating?

As far as I know, both right-wing and left-wing organizations do coordinate with all participants. There is however no coordination between the left and right wing. I am more interested in the fact that at one stage during hearings in the Verkhovna Rada, the Minister of Internal Affairs called for responsibility of the organizers of political rallies to be established. With this, the “new regime” is literally repeating what was said by the “old powers”, and, in addition, Mr Lutsenko showed his totally legal illiteracy, since responsibility in Ukraine, as everywhere else, is individual. If there are disturbances, the police must look into them: brawls, fights are crimes. If such crimes were planned, the organizers and perpetrators should be punished.  The organizers of a confrontation may not be the organizers of the rally. This, for example, was the case on 9 March 2001.  For those same “law enforcement officers” can send their people who begin fights. Whereas the regimes wants the organizers of the rallies to answer for this! The organizers can only call for order at a rally, they cannot themselves ensure that order is maintained there, since they are civilians and do not have such rights. This is the right and the duty of the police. Therefore, instead of looking for someone to hurl the blame at, the police should simply do their job – what they are supposed to do in accordance with the Law “On the Police” and with the Constitution.  However I cannot exclude the possibility that the disturbances of 15 October, and possible ones on 7 November could play into the interests of the regime. The latter may find a sharpening of confrontation at the present time convenient.

Y.S:  How exactly, in your opinion, could street disturbances prove to the advantage of the regime?

The right to peaceful assembly is one of the most crucial elements in implementing Article 5 of the Constitution, in accordance with which “Ukraine is a republic. The people are the bearers of sovereignty and the only source of power in Ukraine. … No one shall usurp state power.”  Before the 2006 Elections there might be those with an interest in limiting freedom of assembly. At present our Draft Law “On freedom of assembly” is in the Verkhovna Rada and has been officially tabled for consideration. I saw how after the disturbances of 15 October, both in the Verkhovna Rada and in the Kyiv City Council, applications from ministers and other influential individuals demonstrated the intention to restrict the right of people to political rallies and to completely prohibit such rallies in the centre of Kyiv, on Khreshchatyk (St), near State institutions, for example, that of the Cabinet of Ministers, the Secretariat of the President.  On this issue a draft ruling of the Kyiv Council has already been put forward, but thank goodness, has not yet been adopted. All these disturbances at very least encourage both public opinion and the opinion of Deputies of the Verkhovna Rada and Kyiv City Council to veer towards supporting normative acts banning activities.  If the heightening of confrontation continues, various scenarios will become possible, some of which may near appear wildly improbable – for example, the dissolution of the Verkhovna Rada.  Such warnings have already been heard in questions to the Speaker of the Rada, Lytvyn.  And, of course, disturbances will lead to a worsening of the international image of Ukraine on the eve of parliamentary elections.

Y.S.: Have you heard that the organizers of brawls on 7 November are being paid 1000 dollars each as on 15 October?

There are such rumours, however I would not like to comment on them since I simply have no exact information. Nonetheless, it is entirely possible. We know many examples where various parties – both right- and left-wing have paid people to participate in political rallies. One of those involved in a round table at the institute “Respublica” was the deputy chairperson of the department of public safety of the Ministry of Internal Affairs (MIA), Anatoly Mayevsky and he stated that many such instances had been documented by the MIA.  In our draft law we have established responsibility for providing any payment for participation in political rallies, and all the more where this payment is for taking part in disturbances or the organization of disturbances. That is а crime which must be condemned.

Y.S.: How would you comment on the warnings of the press service of the OUN-UNSD (Organization of Ukrainian Nationalists – Ukrainian National Self-Defence) about the possibility that offices of political parties will be occupied by force on 7 November?

If they are in possession of such information, they should take it to the police. MIA must ensure that all political forces are protected from violence.

Y.S:  How do you relate to participation in the actions of 15 October, and as is planned, in those of 7 November of foreign political structures such as the “National-Bolshevik Party” or the “Eurasion Union of Youth”?

In brief, calling the blue and yellow flag “banderivsky”[1], they are themselves under a “vlasov” flag, under the Russian three colours of the ROA.  As far as reports are concerned of participation in the activities on 7 November of activists from Russia and Byelorussia, if one concentrates on purely legal concepts, then foreign citizens and stateless individuals, according to the Constitution, have exactly the same right to assembly as citizens of Ukraine, therefore there are no grounds for banning their participation in political rallies.  Remember the picketing of the Byelorussian Embassy in Kyiv by members of the Byelorussian opposition, the picketing of the Uzbek Embassy by the Uzbek Diaspora in Kyiv – they have every right to hold such peaceful meetings. Ukrainians during the Orange Revolution in just the same way picketed Ukrainian embassies in other countries. It would be an incorrect and illegal action to prohibit foreigners from taking part in public events in Ukraine. If these people take part in any actions which are against the law in Ukraine, our law enforcement officers have all levers available. They can simply deport them from the country, or bring criminal charges against them in Ukraine. Moreover, the Ukrainian government, the Ministry of Foreign Affairs, the border guard service have the possibility of not allowing certain foreign nationals onto the territory of Ukraine, just as before the Presidential elections they did with the activists of the Serbian “Otpor” [“Resistance”], Oleksandr Marych.  This would provoke a negative response from public opinion and from human rights activists but I don’t imagine that it would cause a diplomatic scandal.

Y.S..: What would you advise the law enforcement bodies to do on 7 November?

To protect the rights of those who come with the intention of taking part in a peaceful gathering, and to maintain order, regardless of who it is who might disrupt this: Ukrainian, Russian or Moldavian citizens. I think that the present situation of confrontation can be compared with the behaviour of fans before a football match. “Our” fans and “their” fans are aggressively inclined, but the police must avert fights between them while at the same time allowing them to jointly root for their teams.  As a rule, the people who come to football matches organize disturbances, however it would be a thoroughly undemocratic step to restrict entry of such people to Ukraine, with such a diplomatic means being reserved for exceptional situations.  It is quite another matter that football teams may be penalised for excessively aggressive behaviour of their fans, and in politics this would scarcely be feasible. We are aware that Ukrainian law enforcement officers have on many occasions subdued fans of “Spartak” or “TsCK”  (football teams) which had come from Moscow. One would hope that now too law enforcement officers will carry out their functions. For the police it should not matter whether people are gathering on 7 November for a political demonstration or for a football match. State bodies are created not in order to detain people and disperse political demonstrations, but to protect civil rights. It is for this that taxpayers’ money is for.

06-11-2005

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[1] Stepan Bandera was the leader of one of the most hard-line factions of the Organization of Ukrainian Nationalists and Resistance Army (UPA). 

The right and the duty to express the following views are given to me by one simple circumstance – I am a citizen of Ukraine.

 

In Ukraine there are plans afoot for the use of a weapon of mass destruction – the destruction of the very foundation of the national legal system, as well as of the seeds of civilized legal consciousness, which had only just, nourished by the beneficial rain of the people’s action for freedom and justice, forced their way up, out from the remains of the rancid Soviet bog.

 

It is neither international terrorists, nor “shakhidy” (suicide bombers) who are developing this weapon. Our home-grown saboteurs can hardly (with a rare exception or two) boast of any ideological foundation for their ignoble scheme and are most certainly not planning for a moment, like a shakhid, to die themselves. Having used their bomb, they have every intention to go on flourishing and, in addition, leading the country, having foisted on the nation their feeble “concepts” and their perception of expediency, which has nothing in common either with the law, or with the interests of Ukraine.

 

If Ben Laden had been a more adequate figure, not so hell-bent on his specific understanding of the value of human blood and just a little more initiated into the specific functioning of the American democratic system,  it is possible that Al Kaida  would have inflicted his strikes not on the entirely innocent twin towers, but on the American courts, or more likely on their archives where court cases in their primary sources – the most important source of the Anglo-Saxon precedent-based legal system – which constitute the oil and fuel for the efficient operation of the State mechanism of the United States, are held. Our home-grown “bombers” have chosen for themselves a target which is equal in value given Ukraine’s adherence to a different legal system, that target being the Constitution.  The bomb is referred to as “the political reform”, or in its coded form, the Law of Ukraine “On amendments to the Constitution of Ukraine», №2222-ІV from 08.12.04.

 

I deliberately refrain from calling this law a “constitutional reform” since there is as little in it which is constitutional, as there is anything of a reforming nature. One is rather looking at deformation. Constitutional deformation and constitutional sabotage. The word “political” is by far the best suited word both from the legal point of view and in terms of the ideological potential of the document, arising from an under-the-carpet fusion of primitive political expediency (in the understanding of certain individuals, and with the qualification that any political expediency is primitive, in contrast to State or public expediency), and political opportunities provided by the people to ultimately irresponsible people who in the vast majority of cases come nowhere near deserving this honour.

 

The "political reform” has neither morality, nor any idea of the law.

 

Its immorality is, in my opinion, vividly illustrated by three episodes:

 

Firstly, Mr O.O. Moroz[1], apparently honest and supposedly incorruptible, in a situation of life or death as far as Ukraine’s prospects for the future were concerned, persistently, with a dogged determination worthy of the best professional at Besarabka Market, bargains with Yushchenko, making his (Moroz’s) joining of the coalition contingent upon a deal over the “reform”.

 

Secondly, “the foremen of the reform” pushed it through during a period of revolutionary events, in a shameful “package”, together with an electoral law.  Nor are they in the slightest bothered by such “trivial” details as that in no shape or form did one hear slogans of “The reform, the reform!” from the Orange Maidan[2]  (nor for that matter from the squares of the canonical territory of the camp of their opponents).  Or that (do note!), they are making contingent, “on condition” the creation for the people of the law for exercising the sacred right of choice.

 

Thirdly, those worthy individuals, who had earlier slammed the “reform” with their last (or at least, almost last) breath, and had written, gathered, and amassed in safes their petitions to the Constitutional Court, softly-softly, through the vegetable gardens, past the orchard, tip-toeing directly through the bog, have now found their way into the ranks of its (the “reform’s”) supporters. Oh, that sweet word “power”!  Well what can you say? It is, after all, “human, all too human”. Indeed. Only that does not excuse the presence of a Deputy’s mandate and the authority to carry out legislative functions.

 

The "political reform” is based on no ideas, since the affirmed amendments to the Constitution are extremely controversial, not capable of bringing anything except an extremely dangerous disarray in the functioning of the State mechanism, denigrating the “people’s chosen representatives” to the level of “hand-raisers” programmed by the leaders of factions (and through them, by the above-mentioned moneyed players, who may even prove not to be only home-grown) and finally turning the Verkhovna Rada into some kind of limited company, or perhaps into a clan and party-based club according to group economic interests.

 

A lot has been said about the internal threats posed by Law №2222-IV, so I will only concentrate in the following on certain key points.

 

Firstly. The imperative mandate and possibility for depriving a Deputy of his or her powers in cases where the person is not a part of the relevant faction, or is expelled from it, leaves no scope for a considered and independent decision-making process, is hardly in keeping with the will of the voters and gives absolute value to the administrative resource of the leaders of factions (consequently raising their personal “price” in the eyes of potential “sponsors”).

 

Secondly, confrontation caused by different views of the initiators of the nomination, of the economic bloc of the government and of those who are appointed on the initiative of the President (the Minister of Defence, the Minister of Internal Affairs, the Head of the Security Services) is probable.

 

Thirdly, there are mines planted in the norm which introduces additional grounds allowing the President to suspend the powers of the Verkhovna Rada, specifically:

-  The inability of the Verkhovna Rada to form “a coalition of Deputies’ factions” (read – majority. Welcome back, majority, idée fixe of Leonid Danylovych (i.e. Kuchma), you’re with us again).

-  If within 60 days of the resignation or dismissal of the Cabinet, a new government with named members has not been formed. The lack of a majority may be a reflection of the actual will of the people. So, the people did not want, when electing its parliament, to make it capable of creating this majority – then so be it, this is their sovereign will and dissolution of parliament by the President in such a situation will run into conflict with the vector of the people’s expression of will.

 

The provisions about not approving the Cabinet of Ministers are absolutely staggering in their peremptory simplicity. What will prevent someone putting forward obviously unacceptable candidates (suggesting me, for example) specifically in order to have the legislative body disbanded? With direct intent or just with a conscious assumption that such a variant is conceivable?  An analogous and equally depressing conclusion is clearly required for the norm about the right of the President to suspend acts of the Cabinet of Ministers, while at the same time making a petition to the Constitutional Court. In fact, in accordance with the present, as yet not distorted by Moroz and his mates, Constitution, the President has the right to revoke acts of the government (Point 16 of Article 106). However, I’m sorry but a situation when the Head of the State takes the responsibility on him or herself to revoke a decision of the Cabinet of Minister, and a situation when the Guarantor of the Constitution washes his or her hands, placing the responsibility onto the Constitutional Court (which could, by the way, according to national tradition, continue its consideration until the Second Coming), are most clearly entirely different.

 

The "political reform” lacks something even more fundamental – the Law.

 

At a formal, legal level it is illegitimate for at very least the following reasons:

а) It was adopted “in a package”, altogether, as a kind of garnish to the electoral law. This when there is not even a mention of "package voting" to be found in the Constitution, in the Regulations of the Verkhovna Rada or anywhere else, and when, in accordance with Article 19 of the Constitution of Ukraine ”Bodies of state power … 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”.  As any student of a law faculty will tell you, the Verkhovna Rada of Ukraine is precisely a body of legislative power (Article 75 of the Constitution), and Mr Lytvyn, who is personally involved in pushing forward the “reform”, is its official.

б) It was adopted without the legally requisite second review by the Constitutional Court of Ukraine, since the Draft Law No. 4180, already considered by the Constitutional Court, had changed into a law, undergoing “along the way” radical mutations.

At the level of adherence to the principle of the Rule of Law and to the sovereignty of the people – this is a flagrant infringement of both.

 

In accordance with Article 103 of the Constitution, the President of Ukraine is elected by citizens for a period of 5 years, with the powers of the President being set out in Article 106 of the Main Law (the Constitution). It should be noted that in Point 2 of Article 1 of the Law of Ukraine “On the Presidential Elections”, it is also stated that the President is elected for the period set down in the Constitution. The only possible conclusion from this is unambiguous from both a legal and a political point of view: by electing a President of Ukraine, the people give this person for a period of five years the range of powers set down in the Constitution current and in force at the moment when the will of the people was expressed.  This expression of their will began with the first round of the elections, although in general, the beginning of the “period of suspension” of any changes in the powers of the President should be taken from the beginning of the election campaign, since it is then that the process of choosing begins for citizens).  Any other understanding, even if one sets aside formal jurisprudence, has quite simply nothing in common with democratic principles.

 

Accordingly, the State Deputies who voted for the “political reform” had absolutely no right to interfere in such a manner with the choice by the people, in accordance with constitutional norms, of their Head of State.  Such interference runs directly counter to the principle of the sovereignty of the people. Furthermore, Law No. №2222-IV, by effectively suspending before the end of the term a part of the powers of the President is in contravention of Article 108 of the Constitution which, in setting out only the possibility of termination prior to the end of the term of all Presidential powers (as the full range), envisages nothing remotely similar. It is only possible to discuss a change in the powers of the President with regard to a new term of office of the next Head of State. This is likewise true, in fact, with regard to a change in the powers of the legislative body.

 

Here I would like to turn to opponents from the former “white and blue” camp with a call not to interpret my categorical rejection of the “reform” as being a banal attempt to hold tight to the status quo for “the Orange” side.  On the contrary, just imagine, my fellow citizens, that at the next Presidential elections, your candidate wins honestly. You, quite naturally, will be delighted. But what if in the morning you discover that in the middle of the night there was a sitting of parliament which adopted amendments to the Constitution (which had half an hour earlier been reviewed by the Constitutional Court), according to which the powers of your chosen candidate became pure fiction and from now on his or her sole right (and indeed duty) was to open the car door for “our” Speaker of the Verkhovna Rada. You like the idea? I personally don’t. In fact, I emphatically don’t. I’m ready to go out on Maidan, on to the barricades. I mean it.

 

For the supporters of the “political reform”, I have some bad news – the unconstitutional nature of your mutant favourite has already been confirmed by the Constitutional Court.  Are you surprised? You shouldn’t be.  Please take a look at the rather old by now decision of the Constitutional Court of Ukraine No. 3-rp/2000 from 27.03.2000:  "the current Constitution does not envisage the possibility of holding an All-Ukrainian referendum to vote on a declaration of no confidence in the Verkhovna Rada, or in any other constitutional State executive body as potential grounds for early suspension of their powers. Therefore any motion put forward at an All-Ukrainian referendum on a vote of no confidence in the Verkhovna Rada, given the lack of such a possibility being allowed for in the Main Law of Ukraine, would be a violation of the constitutional principle of the exercise by State executive bodies of their powers within the framework provided for by the Constitution of Ukraine, as well as of the principles of a law-governed state which Ukraine has proclaimed”. 

 

For anyone who does not see the connection, I will explain: the powers of parliament (the Verkhovna Rada) cannot be suspended early (in the opinion of the Constitutional Court – not even by referendum!), since there is no such possibility envisaged in the Constitution. Is the analogy clear?  The powers of the President may not be partially suspended prior to the end of the term of office, because there is no such possibility allowed for in the Constitution.  Therefore, if the Constitutional Court does want to be a court protecting the interests of the Constitution, and not some kind of weather-cock, then white cannot be declared black or vice versa. Knockout.

 

I am not surprised at the expected procrastination by State deps worried about the “political reform” over the process of forming a full quota of members of the Constitutional Court[3].

 

However, let them then not be surprised by certain things. The first of these being that the possibility of lodging a petition with the Constitutional Court remains at any time, and that includes after the apparent formal coming into force of the amendments to the Constitution. And about the other – in time, so that they don’t relax too soon.

 

And the other side of the coin “For the taking of the Constitution”, I would assert that the adoption by State Deputies of the “political reform” is nothing less than a usurping of State power.  Who gave THIS session of the Verkhovna Rada, THESE State Deputies, some of whom, incidentally, show in their behaviour more in common with the permanent patients of at least neuropathologists, such extended powers? The people?  No way! The people gave them those powers with which they, unfortunately, elected them.  To repeat: the Constitution does not allow for the possibility of extending the powers of the legislative body at the expense of the powers of the President, with regard to whom the people already demonstrated their elective decision.  For the next make-up of Parliament and for the next President, there is no problem. For themselves not, since otherwise the principle of representative power – the delegation of power - is violated and we de facto acknowledge the right of any State body to “self-regulate”.  What that could mean in practice is quite clear.

 

For reference, I would cite a recent decision of the Constitutional Court of Ukraine, No. 6-rp/2005 from 05.10.2005: “The provision of Part four of Article 5 of the Constitution “No one shall usurp State power” should be understood as prohibiting the seizure of State power through violent means, or in any unconstitutional or illegal manner by State executive bodies or bodies of local self-government, their officials, citizens or their associations”.

 

I would stress – in any “unconstitutional or illegal manner”.  And if anyone deems the arguments presented here to be academic, then I will return them to practical arguments. One would mention the “package”, or rather the lack of such in either the Constitution or legislation. I would ask you to note another point in the same decision of the Constitutional Court: “The guarantee that any usurping of State power will not be permitted is, in particular, given in the principles, enshrined in the Constitution of Ukraine, of the division of power into legislative, executive and judicial (Part one of Article 6) and the provisions in accordance with which State executive bodies or bodies of local self-government and their officials are obliged to act 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. (Part two of Article 19)”.

 

Thus, and this was clear even without the decision of the Constitutional Court, any moves of a State body which deviate from the Constitution and the law are a revolt, a usurping of power, since such power is not vested in them by the people who are the bearers of sovereignty.  And there is no other source of power (for all that this could possibly be the discovery of a lifetime for the majority of State Deps and those behind them).

 

Another important point should be mentioned. In attempting to hide their “political reform”-cloaked shame behind, if not a fig leave, then some kind of ersatz argument, its apologists claim that if the package voting was illegal, then this means that the electoral law was illegal, and that therefore Presidential Yushchenko’s election is not legitimate.  Idiocy and deception!

 

In the first place, the Constitution, using the words of the Constitutional Court, does not envisage the possibility of suspending the powers of the President in a situation where a law in accordance with which he or she was elected is declared unconstitutional or revoked.  There isn’t. Not at all. End of the discussion.

 

Secondly, and I apologise for the language, but even the Deputies’ slight of hand with voting cards, when the fulfilment of the imperative obligation of the State with regard to providing the people with the opportunity to exercise their sacred right of choice was made contingent on the passing of the “political reform”, was, to put it mildly, a phenomenon so far from the law, that the people have all grounds for not allowing these pitiful voting machines near the legislative process for cannon fire.  And already the attempt to deny the people’s choice will give citizens all justification in “getting up and leaving”, reminding the authors of such an idea of their place, and the State that it is, after all, “answerable” (Article 3 of the Constitution).

 

There is more. I am a citizen. A voter. A tax payer. And don’t talk to me about “political agreements”, “deals”, and “compromises between political forces”.  I want to know nothing of all that. I did not sign any agreements and did not make any deals. I simply have rights which I will not give up without a fight. My barricades are the Constitution. Each time anybody attempts to take these rights away, they will have to take the barricade by storm. And we’ll see who wins, since there are a lot of us.

Therefore I am making an appeal.

 

I am appealing to the State Deputies who voted for the “political reform”, who did not lodge the appropriate petition with the Constitutional Court: if tomorrow the “reform” comes into force, then the day after tomorrow, do not be surprised if the tax department “rips into shreds” your business without any legal justification. Do not be surprised if you yourselves are seized by police officers right in parliament. And don’t be surprised, finally, if you get beaten up on the street. Because it was you who beat up the Law and lawfulness in Ukraine.

 

I turn to normal, that is, uncorrupted by a Deputy’s mandate, readers: just imagine, if you found that the alphabet book that you had bought for your child proved to have been written in the most foul language. In exactly this way, instead of our Constitution, the very foundation of a healthy law-based system, we are getting some pseudo-legal trash foisted upon us, which has about as much relation to the Law as the filthy abuse of a drunken down-and-out has to teaching our children their native language.  Remember the names of those politicians who speak out in favour of the “political reform”, remember the names of the parties and factions which are supporting this dishonourable matter – and (my personal advice would be) don’t vote for them again, not even, as Stephen King put it in his “Dead zone”, for a team to catch rabid dogs. For even that work requires a sense of responsibility and observance of rules, which they have proved totally incapable of showing.

 

I turn to my lawyer colleagues. Let us not be money-orientated hacks, ladies and gentlemen! Do you really feel no moral discomfort, while busying yourselves apparently with law in a country where an attempt is being made to destroy the first seeds of the Law?  Do you not  have any sense that you’re being conned when you are told about legislation, the law-making process, the application of the law by those who have the same relation to the Law as an executioner has to his victim?  And, incidentally, have you not got tired of earning money not by pure intellectual labours, refined, sharp-witted thoughts and words, but rather by expressing yourself diplomatically and acting as a go-between in the redistribution?  No feeling of shame?  Not before your children, or when you face yourself in the mirror?  This will go on for ever if you allow them to replace as the foundation of our legal system a powerful and high-quality constitutional basis with a product of banal “carving up” which is impoverished both in form and in substance.  What kind of legal consciousness, what kind of law and order, even as a middle prospect, will we be looking at in Ukraine?  So, maybe we join the barricades?

 

And I turn also to the court – in accordance with Article 55 of the Constitution of Ukraine. Something tells me that I will not be alone. And even if we do not succeed, we will not be ashamed, and we will make the “political reformers”, as well as the State itself, aware that they need to take the self-defence of the people into account.

 

Long live Constitutional reform – democratic and legal in its essence, impeccable in its insistence on public debate and procedural norms.

And may the “political reform” rot!

Printed from Maidan. http://maidan.org.ua/static/mai/1130741120.html

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[1]  Oleksandr Moroz, leader of the Socialist Party, won more than 5 % of the votes in the first round of Presidential elections in 2004, then called on his supporters to vote for Yushchenko. (translator’s note)

[2]  Maidan means “square”, and refers to  Independence Square in Kyiv and all the others throughout Ukraine where people stood for days, standing up for their choice of President (translator’s note)

[3]  The judges of the Constitutional Court are appointed for a period of nine years which cannot be extended. Since the Constitution was adopted 9 years ago, there are presently a lot of vacancies, one third of which are to be voted into office by the Verkhovna Rada. (translator’s note).

Informational office of the Council of Europe in Ukraine, foundation “Protection of Children’s Rights", Kharkiv Group for Human Rights Protection, International Society for Human Rights - Ukrainian section, L’viv Laboratory for Human Rights and for the Rights of a Citizen of SRI of the State Construction and Local Government of the ARS of Ukraine, Kharkiv Municipal Association "Educational Center for Human Rights" with assistance of representative office of European commission in Ukraine, center of information and documentation of the NATO in Ukraine, OSCE - the projects coordinator in Ukraine, celebrating the tenth anniversaryof Ukrainian membership in the Council of Europe announce the seventh international competition of pupils’ and students’ works on human rights

Dear friends! We invite you, pupils of 9-11 grades of general educational schools, high schools, Lyceums, colleges, vocational schools and students of institutions of higher education of Ukraine, to participate in the Seventh International competition of pupils’ and students’ works on human rights. Pupils and students of Beylorus’, Moldavia and Russia are also invited. 

 

We expect to receive your work (in form of an essay) on one of the given below subjects:

1. Rights of children and the youth – what were the achievements and losses for the last years in my country? 

2. Is it necessary to limit rights of a person and separate groups of citizens for the sake of public needs? How is it to achieve coordination of personal, group and public interests?

3. Protection of which human rights I think is the most essential?

4. International bill on human rights, European convention and European court on human rights... How can I use these documents for protection of my rights?

5. People’s rights for life without wars and acts of terrorism.

6. Violence in society: sources and forms. What in your opinion are the real procedures for violence reduction?

7. Terrorism on a global scope and problems of human rights observance: how is it to struggle with terrorism and to reduce its level?

8. Ukraine - 10 years at the Council of Europe: achievements, problems, prospects in observance of human rights.

9. Observance state of human rights and integration prospects of my country. Are we making our way towards the European Union?

10. My attitude to the Euro-Atlantic course of Ukraine. Relations Ukraine – the NATO. What is it necessary to do for maintaining of high standards in the field of human rights?

11. Any subject which meets the general direction of the Competition.

The general requirements

The work should meet the Competition’s theme and should be stated in the form of a composition-essay that is in a free form to show the competitor’s personal attitude and his thoughts concerning one of the offered subjects. The work should be printed or written in legible handwriting (for choice: in Ukrainian, Russian or English). Volume of work - up to 8000 printed characters, taking into account interword space (5-6 pages of printed text with 1,5 intervals). The work must consist of a title page and actually the text of a composition-essay itself. On the title page it is necessary to specify: your initials, address, contact phone; the full official name of an educational institution, that you study in, rate (faculty, department), address of the educational institution; initials of the consultant (specify, in case you had any consultations while writing the work), his place of work, consultant’s post, status, scientific degree if there are any. On the first page, before the text of the composition-essay, it is necessary to specify the selected subject. Since works will be considered "under the working code", it is not recommended: to place the text of the work on any side of the title page; to indicate in the text of the work any data which specify the author or his consultant or educational institution.

Participation in Competition 

For participation in the Competition you should send at the latest December 15^th, 2005 the filled Application of a participant of Competition which guarantees getting of the special literature. If you do not send the Application in due time, this won’t be an obstacle for participation in the Competition. The competitive work should be sent till January 25^th, 2006.

 

Rewarding of the finalists and the winners

Participants, who will reach the finals of the Competition (as a rule, 20 pupils and 10 students) will be invited to take part in the Solemn conference devoted to the close of the Competition, and awarded valuable prizes. Surnames of the Competition winners (as a rule, three persons) will be announced during the Conference. They will receive awards, which by tradition of the First - the Sixth Competitions can be as the grants for education, or as a trip to the Central offices of the main international organizations (Council of Europe - Strasbourg, the NATO - Brussels etc.). Centre of information and documentation of the NATO in Ukraine announces a special prize for the best work written on subject 7 and 10. The final list of prizes for the winners will be defined after Competition’s summary.

Competition applications and works are to be sent to address

Ukraine, 01196, 1,Lesja Ukrainka sq., p.o. box 34 with a note "To competition"

or by e-mail  [email protected]

Phone / fax of organizing Committee: (044) 286 38 76 

 

Working code (to be filled by Orgcommittee)___

 

Application

of a participant of the VII International competition

on pupils’ and students’ works on human rights

 

For participation in the Competition pupils of 9-11 grades of general educational schools, high schools,

Lyceums, colleges, vocational schools and students of institutions of higher education of Ukraine,

and also pupils and students of Beylorus’, Moldavia, Russia are invited.

_

I need the following documents (tick off)[1] 

1. European Convention for the Protection of Human Rights and Fundamental Freedoms (EU) ÿ 2. Universal Declaration on Human Rights of the United Nations ÿ  3. Convention on children’s rights (UNO) ÿ  4. International Covenant on Civil and Political Rights ÿ  5. International Covenant on Economic, Social and Cultural ÿ  6. Documents, connected with NATO activities and cooperation Ukraine – NATO ÿ  7. Others (indicate) ___

 

Applications are to be sent to address

Ukraine, 01196, 1,Lesja Ukrainka sq., p.o. box 34

Or by e-mail  [email protected]  ORGANIZATIONAL COMMITTEE OF THE COMPETITION

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Tear off here (is left at а competitor)  _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ 

[1] In case there is availability of the Internet access, so you can find the documents (items 1 - 5), in particular, at the web-site: www.rada.gov.ua in section „Legislation of Ukraine” according to: „Search by properties”, „Words”, „In a title”. The title is to be typed according to the text of items (except explanations in brackets).