“Prava Ludiny” (human rights) monthly bulletin, 2005, #12
Average amount of a bribe in Ukraine is 8600 UH Politics and human rights
Conclusion of the National Commission for the Strengthening of Democracy and the Rule of Law Deputy immunity yet again … Chortkiv public protests against the amendments to the Constitution Report of G. Udovenko, Head of the Committee on human rights, national minorities and interethnic relations, at the conference “Ukrainian realities and standards of the European committee for preventing torture” The Constitutional system is in jeopardy without the Constitutional Court Appeal to the Ombudsperson Nina Karpachova regarding her participation in the Parliamentary elections In the New Year Ukraine will descend into constitutional chaos The right to a fair trial
Serhy Holovaty acknowledges that mechanisms for safeguarding justice are not fully developed iin Ukraine Conference “Problems of the court reform. Access to justice” The right of prisoners to correspond with the European Court of Human Rights has been recognized Access to information
Artemovsk mayor stamping down on the independent mass media Yet more on the Presidents “secret” decrees The Regime must act in a transparent manner Prohibition of discrimination
Sometimes it is a pleasure to acknowledge ones own mistakes On refugees
The work of the police is becoming more open to public control Civic society
HAS UKRAINE ONCE AGAIN REACHED A CROSSROADS? NGO activities
We protest against the tightening of control over civil society (Appeal from Russian non-governmental organizations)
Average amount of a bribe in Ukraine is 8600 UH
Since the beginning of the current year investigative departments of the Ministry of Internal Affairs have uncovered 3721 facts of bribe-taking (19.7% more than in 2004). 2489 of these cases have been already investigated, and the materials have been passed for court consideration.
This information was communicated by the PR-department of the Ministry of Interior of Ukraine.
Only during the past week officers of the departments for fighting the economic crimes have documented 66 facts of bribe-taking, informs ForUm.
All in all, since the beginning of this year more than 2.5 thousand persons have been accused of bribe-taking, among them: 500 persons are the heads of enterprises, establishments and organizations; more than 300 – officials of various control organs; more than 100 – officials of the organs of power, government and self-government, including 18 officials of regional state administrations and regional councils, 41 – of district state administrations and 32 – of town councils and town executive committees.
The analysis shows that the average amount of a bribe in Ukraine is 8600 hryvnas (4700 in the past year). At that the police disclosed 136 cases, where the sum of a bribe exceeded 10000 hryvnas, and 52 cases, where the sum of a bribe reached 30000 hryvnas, communicates the PR-department of the Ministry of Interior.14 December 2005
Politics and human rights
Conclusion of the National Commission for the Strengthening of Democracy and the Rule of Law
“The National Commission for the Strengthening of Democracy and the Rule of Law was created by the President of Ukraine to provide assistance to the Ukrainian regime in strengthen democracy, the rule of law and to ensure the exercising of human rights. In accordance with its mandate, the Commission considered the question of observance of the constitutional procedure during the introduction of the amendments to the Constitution in accordance with the Law of Ukraine No. 2222-VI “On introducing amendments to the Constitution of Ukraine” of 8 December 2004 and compliance of the provisions of this Law with general principles of the Constitution of Ukraine and European standards”. This information was communicated to journalists by Serhiy Holovaty, the Minister of Justice of Ukraine and the Head of the National Commission, after the results of the plenary sitting of the National Commission on 27 December 2005.
According to Serhiy Holovaty, the Commission has come to the conclusion that “the procedure, according to which the changes are being introduced, as well as their content, do not meet the demands, established by the Constitution of Ukraine of 1996 and the principles following from membership of Ukraine in the Council of Europe – the demands envisaged by the Statute of the Council of Europe and the European Convention of human rights, that is European standards.
In particular, one of the flagrant violations was the package vote on the Law “On introducing amendments to the Constitution of Ukraine”. The Minister of Justice pointed out: “The procedure of adoption of laws is described in details in the Constitution of Ukraine and the Regulations of the Supreme Council. Introduction of changes to the Constitution of Ukraine is carried out through complicated procedure. A high level of demands is required in order to protect the constitutional order of Ukraine. A package vote is not envisaged. by legislation. Thus, the statement that the package vote has some judicial ramifications, since it was not legally justified, is an absurd and a political manoeuvre".
Serhiy Holovaty said that the conclusion approved on 27 December 2005 at the plenary sitting of the National Commission was “an unbiased legal analysis, not connected with politics”. The expert conclusion of the Commission has the character of recommendations, since the National Commission is not an executive body which can approve political decisions. The National Commission will send the conclusion to all subjects of legislative initiative: to the President of Ukraine, the Government and all peoples deputies. Being the subjects of legislative initiative, they have the right to contest constitutionality of the amendments.
Press-service of the Ministry of Justice of Ukraine
Deputy immunity yet again …
Deputies of the Luhansk regional council have refused to agree to criminal charges being brought against Stanislav Cherniavskiy, a deputy of the regional council, ex-head of the Novopskovsk district state administration.
The acting prosecutor of the Luhansk region spoke at the session. He stated that a criminal case had been launched against Cherniavskiy who is accused of involvement in vote-rigging during the second round of Presidential elections in 2004. According to the prosecutor, Cherniavskiy gave instructions at the polling station regarding how many votes for each candidate were to be received. During the process of investigation of this case the head of the election commission of the Novopskovsk district confessed that she had rigged the results of the voting on the order of Stanislav Cherniavskiy.
In response Stanislav Cherniavskiy stated that he had not given such instructions to the members of election commissions. “At some meeting I expressed my personal wishes: I said that it would be good if the results of the second round were the same as in the first round. I never concealed my support of Yanukovych”.
A majority of the Deputies of the regional council voted to not consent to bringing criminal charges against Cherniavskiy.
Chortkiv public protests against the amendments to the Constitution
On 25 December 2005 a public conference devoted to a likely collision course as a result of the “constitutional reform” was held in Chortkiv. An appeal to the President of Ukraine and the Head of the Verkhovna Rada of Ukraine was adopted at the conference.
The participants of the conference stated: “The Constitutional Court must put an end to this legal crisis. We are therefore calling on you, as the guarantor of the Constitution of Ukraine and the Head of the supreme legislative assembly, to accelerate the forming of the new composition of the Constitutional Court and to present, as soon as possible, a petiton to the Court to rule on the conformity of the Laws of Ukraine “On introducing amendments to the Constitution of Ukraine” and “On the status of deputies of local councils” with the Constitution of Ukraine.
We hope that the Constitutional Court of Ukraine will demonstrate high professionalism and will adopt decisions in keeping with the principles of the rule of law.
We are sure that any political expedience may not abuse the expression of peoples will. We would remind you that, according to the Constitution of Ukraine (Article 5), “the right to establish and change the constitutional order in Ukraine belongs only to people and cannot be usurped by the state, its organs or officers”.
Report of G. Udovenko, Head of the Committee on human rights, national minorities and interethnic relations, at the conference “Ukrainian realities and standards of the European committee for preventing torture”
Respected participants of the conference!
On behalf of the Verkhovna Rada Committee on human rights, national minorities and interethnic relations I want to greet all participants of the conference.
We have met today for one more discussion of very complicated and socially pressing issue – the problem of application of physical violence by officers of law enforcement bodies in the course of detention and pre-trial investigation. The wide discussion of this problem is also important because now, after coming of the new power, Ukraine has a unique chance to become a law-based state, to extirpate, at last, this terrible and disgraceful phenomenon.
So, I believe that it is important to consider not only application of torture, but the entire problem of application of the illegal physical violence to the detained by law enforcement bodies . This is a large-scale problem that gives rise to application of torture as an utmost form of physical and psychological violence.
According to the data of the research carried out in 2004-2005, 84% of the persons detained by law-enforcing organs underwent psychological or physical violence, more than 50% told that they had been beaten during the investigation, and 13% asserted that torture with the use of special equipment had been applied. At the same time, the illegal violence is not considered by the population as one of the main drawbacks in the work of law-enforcing organs.
The above-mentioned is proof not only of the importance of this problem, but also of the need to use a complex of measures to resolve the problem. In my opinion, it is necessary not only to change the operating laws and to toughen the responsibility for such actions, but also to change the psychology of the society, attitude of population to this problem. Unfortunately, during the years of functioning of the totalitarian system, human life and health have stopped to be the main social value. Officers of law-enforcing organs are born and educated in this environment, they are an unalienable part of our society. It is impossible to change their psychology without changing the psychology of the society as a whole.
At the same time, it is necessary to improve the operating laws in the sphere of human rights in the part of toughening of responsibility of law-enforcing officers for application of torture and cruel treatment. Being a worker of a legislative organ, I want to dwell on this question.
You now that until recently the Criminal Code of Ukraine has not envisaged any direct responsibility of officers of law-enforcing organs for such deeds. In case of institution of a criminal case for application of torture, the guilty were brought to responsibility mainly after Article 265 of the Criminal Code “Exceeding service authorities”. The mentioned article envisages rather light punishment for this kind of crime.
By the initiative of peoples deputies of Ukraine (in particular, our Committee), the Law of Ukraine “On introduction of changes into some legislative acts of Ukraine (on intensification of legal protection of citizens and introduction of the mechanisms for realization of constitutional rights of citizens for business activities, personal immunity, safety, respect to human dignity, legal aid and protection)” was adopted and came into force on 12 January 2005.
The mentioned Law contains new version of Article 127 of the Criminal Code of Ukraine. Parts 3 and 4 of this article envisage criminal responsibility of officers of law-enforcing organs for application of torture; the minimal term of incarceration is 10 years.
This Law introduces changes also to the Law of Ukraine “On police”, which changes are aimed at guaranteeing of rights of the detained, in particular:
- the right for protection of a person is supported from the very moment of detention;
- police is obliged, within two hours after the detention, to inform relatives and defender of the detained, as well as administration of the organization, where the detained person works or studies;
- the detained has the right to refuse from any explanations or testimonies before the arrival of an advocate.
The Law also describes the grounds for compensation and the kinds of damage, which should be unconditionally recompensed according to court decision. Police officers must guarantee to the detained or arrested (taken into custody) persons the right for juridical protection in compliance with the order stipulated by this Law and other normative-legal acts.
In spite of a number of progressive steps of our state in the sphere of human rights protection, the situation is still strained. According to the information of the General prosecutors office of Ukraine, during the first half of 2005 Ukrainian courts brought to criminal responsibility 212 police officers for the crimes committed by them, 43 among them – for application of impermissible methods of investigation. During the same period of 2004, 52 police officers were brought to criminal responsibility for similar crimes. 33 criminal cases were instituted by investigating organs after Article 127 (during 6 months of 2004 – 21 cases).
I want to draw your attention to the later numbers. The present state statistics gives the total number of cases started after Article 127, not distinguishing among the crimes committed by law-enforcers and civil persons. So, one should agree with the conclusions, made in the report, without authentic information (even merely statistical) about application of torture by officers of law-enforcing organs. Moreover, such state statistics does not exist at all.
I want to remind that criminal responsibility exists in Ukraine for the crimes connected with application of physical and psychical violence. This responsibility is envisaged by Articles 127, 371 and 372 of the Criminal Code of Ukraine. In particular, Article 372 has the title “Compulsion to giving evidence”. The analysis of the appeals received by the Committee from citizens and public organizations shows that in 80% of cases application of physical and psychical violence by law-enforcing officers is committed just with the aim to force a person to giving evidence and, as a result, to increase the number of disclosed crimes.
Here the question arises: how many officers of law-enforcing organs have been sentenced in compliance with this article, the article, which must extirpate one of the most serious defects of our law-enforcing organs? Despite all our efforts, we could not find an answer to this question either in the General prosecutors office or in the Ministry of Interior. By the official information of the Supreme Court of Ukraine, these data are not represented in court statistics. Well, there is another question: why? And where are they represented?
During more than two years the Committee repeatedly put the question about the advisability of keeping by the prosecution organs and court instances of separate statistics reflecting the responsibility of law-enforcers for the committed crimes connected with violation of rights of the detained and incarcerated, application of physical violence and torture. Yet, there is no result yet.
Although the tendency to improvement of the situation is obvious, the cases of application of torture have been observed in 2005 too. State agencies of Ukraine, in particular the General prosecutors office, continue to receive numerous letters from citizens, which evidence on application of illegal methods of investigation by officers of law-enforcing organs.
So, by the official information of the General prosecutors office (for September 2005), investigating police officers perpetrated 49 cases of illegal bringing to criminal responsibility (54 cases during the similar period of the past year) and 31 persons (16 during the similar period of 2004) were acquitted by courts. The General prosecutors office points out: “The main reason of this situation is violation of criminal-procedural legislation by inquiry organs, in particular, too early detention of a person and absence of proper intra-agency control. All in all, 14117 police officers have been brought to disciplinary responsibility by demands of prosecutors, among them 105 – for use of the illegal methods of investigation and inquiry”.
Carrying out the activities for prevention of torture in Ukraine, the Committee focused a noticeable part of its attention on the work with law-enforcing organs, which work is conducted both on legislative and practical level. The legislative work is based on the appeals of citizens, physical and juridical persons. The majority of such appeals contain the information on application of physical force or use of the forbidden investigation methods by law-enforcing officers or in penitentiary establishments. None of these violations were ignored. In order to liquidate them the committee turned practically to all organs of judicial and executive power with the demands to conduct proper investigations and to bring the guilty to responsibility. However, unfortunately, we cannot provide any example of efficient reaction, the investigations are still lasting.
Meanwhile, numerous complaints and appeals are sent to the Committee. Here is a citation from a complaint from M. Kolesnichenko, which was received by the Committee on 16 September 2005: “Inadequate measures were applied to me; policemen put a gas mask on my head and blocked air until I fainted, they handcuffed my wrists behind my back and suspended on the door, they applied various torture with intolerable pain, thus forcing me to sign some documents”.
In its work the Committee actively uses the mechanism of parliamentary control. In particular, a number of “round tables” and seminars were held, where the questions on prevention of torture in Ukraine were discussed. We conducted several meetings with international human rights protecting organizations. For example, on 26 September of the current year a discussion was conducted in the Committee of the report of “Amnesty International” “Ukraine. The time to act. Torture and cruel treatment of the detained by police” for 2004-2005. It should be noted that this thoroughly prepared document contained not only the information on the problem, but also a series of concrete recommendations to the organs of state power concerning prevention of torture. The considered report was sent by the Committee to the interested ministries and agencies with corresponding recommendations on the ways of legislative solution of the problems mentioned in this document.
Yet, despite all efforts there are still some questions. The main of them: why such situation exists? What should be done for liquidation of this shameful phenomenon? It is especially shameful, since torture and cruel treatment are applied by officers of law-enforcing organs, whose main task is protection of human rights. The international juridical practice regards such actions as one of the most dangerous encroachment upon the judicial system, since these actions not only noticeably decrease its authority and citizens trust in law-enforcing organs, but also raise doubts about the legitimacy of this system. Protection of public order cannot be connected with its violation. Why law-enforcers are still feeling the impunity? The Committee emphatically tries to find the answers to this and other questions in order to reveal, first of all, the gaps in the existing, in particular criminal, legislation, which gaps should be immediately filled with corresponding norms. Probably, the existing norms demand more strict sanctions for such crimes? Or inefficiency of the existing methods of prevention of application of torture lies, mainly, in the moral sphere? An important part is played also by the insufficient professionalism of investigating officers of prosecution, carelessness of some officers of the self-safety departments of the Ministry of Interior, who conduct the preliminary check. All that is cemented with the impregnable cover-up of law-enforcers, which engenders the certitude in impunity and new cases of torture in the work of law-enforcing organs.
One more factor, which contributes to application of torture, is the wide practice of use, in particular by courts, of confessions as a doubtless proof. This happens even when the confession of the suspected is the only proof of his guilt. I think that even the notorious Soviet prosecutor Vishnevskiy did not hope that his juridical postulates would be so enduring.
Another important problem is irresponsibility of the state for the cases of application of torture and cruel treatment. I have already said that the main reason here is slowness and inefficiency of investigation of such cases. Prosecutors office conducts these investigations very unwillingly. Frequently they do not go beyond the superficial check of complaints of the victims of torture. If the criminal case is instituted, the investigation is protracted, even if the victim directly points at the persons, which applied torture.
It is noteworthy that this year and before the Committee has organized a number of discussions of the problem of use of physical and psychical violence by the workers of law-enforcing organs. These discussions were held in the framework of the enlarged sessions of the Committee with invitation of top officers of law-enforcing organs, experts and mass media, round tables, conferences, etc. The participants of these actions created and directed to the Cabinet of Ministers of Ukraine and central organs of state executive power corresponding recommendations and propositions concerning the measures for extirpation of this disgraceful phenomenon. Concrete changes to existing normative-legal acts, aimed at prevention of application of torture, were elaborated by the Committee or with its participation.
I fully agree with the opinion that torture and cruel treatment should be denounced by the President of Ukraine and the Government. And this must be done publicly, elucidated as a separate problem that worries the top authorities of our state.
It is necessary to ruin the very atmosphere of hushing-up of this phenomenon, to form, on the state level, the position of intolerance and inadmissibility of cruel treatment and torture in the system of law-enforcing organs.I assure you that the Committee will do its best for familiarization of all power branches with these recommendations, for detailed analysis and realization of every item. After the result of the analysis of the recommendations, the Committee plans to organize the round table with participation of the interested representatives of the organs of state government, and to elaborate at this conference the concrete recommendations to the Ukrainian government and the collective position concerning their practical realization.
The Constitutional system is in jeopardy without the Constitutional Court
29 December 2005
To the Speaker of the Verkhovna Rada of Ukraine
To the Leaders of Deputies Groups and Factions in the Verkhovna Rada of Ukraine
The Constitutional system is in jeopardy without the Constitutional Court.
The Ukrainian Helsinki Human Rights Union (UHHRU) is calling upon you to take measures without delay to swear in those Judges of the Constitutional Court who have already been appointed and to ensure that the Verkhovna Rada of Ukraine elects its judges to the Constitutional Court.
The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine and is the guarantor of the observance of human rights and fundamental freedoms, as well as of adherence to the rule of law, by all executive bodies. This determines the enormous significance this institution has in democratic countries. For this reason constitutional jurisprudence, as the powerful mainstay of democracy, must not become the object of political deals and speculation.
The situation has arisen where the work of this body is being blocked by Parliament (the Verkhovna Rada). Those in charge in Parliament are refusing to swear in the judges who have been appointed by the President and by the Congress of Judges of Ukraine, rendering them unable to fulfil their role. This is explained in public as being due to the need to swear in all the judges at the same time, however there is no such requirement in any law of Ukraine and this effectively limits the right of other executive bodies to appoint their judges. Parallel to this we have the situation where the Verkhovna Rada of Ukraine is blocking the election of their judges of the Constitutional Court
The Speaker of Parliament and leaders of factions should heed the recommendations of international organizations, in particular, the Venice Commission of the Council of Europe and the Parliamentary Assembly of the Council of Europe, regarding the restoration of the functioning of the single body of constitutional justice in Ukraine by brooking no delay in swearing in the newly-appointed judges. The stalling of this process is entirely without justification and looks like an attempt to usurp power by limiting the constitutional rights of the President and the judiciary.
At the same time the leaders of political groups and factions in parliament must hold talks in order to choose the Verkhovna Radas candidates for the Constitutional Court since not electing these judges constitutes a violation of the constitutional duty of parliament and undermines the latters authority, the foundations of the constitutional system and stability within society. It should be noted that parliament is demonstrating the political incapability of coping with one of their main responsibilities.
The fact that certain political forces are unwilling to vote for candidates to the Constitutional Court of Ukraine does not constitute grounds for limiting the right of the President and the Congress of Judges to appoint judges to the Constitutional Court of Ukraine.
We consider that the fears of certain political forces of a possible review of the conditions under which Law No. 2222 from 8 December 2004 which introduces amendments to the Constitution was passed cannot be applied as an argument for blocking the work of the most important body of constitutional justice since the said amendments to the Constitution may be reviewed at any time after the Constitutional Court begins its work.
We therefore demand that the Speaker of the Verkhovna Rada of Ukraine and the Heads of parliamentary groups and factions:
Take immediate measures to swear in the judges of the Constitutional Court who have already been appointed by the President of Ukraine and the Congress of Judges of Ukraine;
Ensure that the Verkhovna Rada of Ukraine elects its chosen candidates for judges of the Constitutional Court of Ukraine.
Chairperson of the Board of the UHHRU
Executive Director of the UHHRU
A Brief introduction to the Ukrainian Helsinki Human Rights Union (UHHRU)
The objective in creating this Association of human rights organizations, as well as the aim of all its activities, is to safeguard the exercising of human rights and fundamental freedoms by promoting the practical fulfilment of the humanitarian “basket” of the Final Act of the 1975 Conference on Security and Cooperation in Europe (CSCE; the Helsinki Accords) and of other international legal documents, as well as of all other commitments Ukraine is under as regards human rights and fundamental freedoms.
The Association was founded by 15 civic human rights groups:
The Vinnytsa city civic organization “The Vinnytsa Human Rights Group”
The All-Ukrainian Association for Political Prisoners and Victims of Repression
The Civic Committee for the Protection of Constitutional Rights and Civil Liberties (Luhansk)
The Economic club “EOL” (Odessa region)
The Institute of Socio-Economic Issues “Respublica” (Kyiv)
The Congress of National Communities of Ukraine (CNCU)
The International Civic Organization - Centre for legal and political research “SIM” (Lviv)
The City Civic Organization “For professional help” (Poltava region)
The Sevastopol Human Rights Group
The Kharkiv Regional Association of Soldiers Mothers
The Kharkiv Human Rights Protection Group
The Kherson City Association of Journalists “Pivden” [“Sourh”]
The Kherson regional organization of the Committee of Voters of Ukraine
The Center for Research into Regional Policy (Sumy)
The Chernihiv Civic Committee for the Protection of Human Rights
The Monitoring Council of the Union includes prominent figures from the human rights movement of the 1960s – 1980s: Zinoviy Antonyuk, Mykola Horbal, Josyp Zisels, Vasyl Lisovy, Vasyl Ovsiyenko, Yevhen Pronyuk and Yevhen Sverstyuk.
 “The President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine each appoint six judges to the Constitutional Court of Ukraine”. (Article 148 of the Constitution)
Appeal to the Ombudsperson Nina Karpachova regarding her participation in the Parliamentary elections
18 human rights organizations are calling upon the Ombudsperson to resign from her post in connection with her participation in the forthcoming Parliamentary elections. The authors of the appeal believe that the ombudsperson may not combine political and human rights activities. Signatures are being collected for a petition.
To the Human Rights Ombudsperson Nina Karpachova
Dear Ms. Karpachova,
We, citizens of Ukraine, are appealing to you in connection with your participation in the Parliamentary election campaign. We respect your right to be elected to Parliament. Yet we feel compelled to state the following.
The Human Rights Ombudspersons role is to protect the rights of every Ukrainian citizen, regardless of the political forces in the country. Only confidence in and respect for the Ombudsperson on the part of ordinary Ukrainians and state bodies can make human rights protection activities efficient. However, this confidence and respect are founded on two basic principles of ombudspersons activities – independence and impartiality, and the combining of political and human rights activities would inevitably result in violation of these principles.
Your direct participation in the election campaign in the ranks of any political party would endanger these basic principles. You more than anyone else should understand that it is very important to guarantee that the institution of Ombudsperson is not associated with any political force and is not involved in the political struggle. Any doubt about impartiality and independence of the Ombudsperson will result in the undermining of this important social State institution, the authority of which you have taken so much effort to consolidate.
We call upon you in this situation to take the only decision possible, namely to step down from your post. In our opinion, such a step would demonstrate your personal respect for the authority of the institute of Ombudsperson. This act will be supported by those who regard this institution as one of the most important acquisitions of our democracy, which must not be sacrificed to the transient political events.
In the New Year Ukraine will descend into constitutional chaos
This gloomy prediction could be heard from virtually all those who spoke at a round table to discuss the planned constitutional amendments in Ukraine which was organized on 12 December by the Laboratory of Legislative Initiatives and the Konrad Adenauer Foundation.
A heated argument raged at the round table between those who want to see the “reform” revoked and those who support its introduction. However both sides were in agreement that as a result of the dramatic change in the model of executive power and in the absence of dozens of the requisite laws and procedures, Ukraine could experience constitutional and legislative chaos with unimaginably grave consequences
Supporters of the “political reform” primarily argued that supposedly it was already too late to change it. Representative of the Verkhovna Rada in the Constitutional Court, Selivanov even asserted that from now on the Constitution could only be changed through a referendum. The line that “weve missed the boat” was taken up by the follower of “Professor” Yanukovych, Taras Chornovil. It was however spurned by the Kharkiv Human Rights Groups constitutional expert, Vsevolod Rechytsky, who compared such assertions to the well-known pronouncement: “The teaching of Marx is all-powerful because it is true”.
Political scientist, Vadym Karasyov stated that in principle it made no difference where one changed the constitution, even in the toilet. To which Karasyovs opponents with some justification responded that what is produced in the toilet cannot become the foundation of the State and the Law. Karasyov in addition tried to argue the “advantages” of the “political reform” on the grounds that, as he put it, any idiot can govern a Presidential state, but you try learning to govern a parliamentary one…
Professor of the Kyiv-Mohyla Academy and Retired Judge of the Constitutional Court, Mykola Kozyubra said that no amendments to the Constitution could compensate for the lack of political culture in contemporary Ukrainian society. Nor would the numerous and flagrant violations of constitutional procedures by means of which and only by means of which the amendments to the Constitution could be introduced engender respect for the Constitution. Therefore, in his opinion, the annulment of this reform was inevitable in the near future.
The most consistent and the sharpest criticism of the amendments to the Constitution came from the representatives of the Kharkiv Human Rights Protection Group (KHPG) Yevhen Zakharov and Vsevolod Rechytysky. Zakharov said that they were nothing less than a constitutional coup, a revolt, since it was impossible to accept changes in the Constitution adopted with flagrant disregard for the procedure for introducing amendments to the said Constitution. There could only be one task as far as such a “reform” was concerned, that being to revoke it. He commented that one could only agree with the reform if one removed from the Constitution the affirmation that Ukraine is a law-based country. In their opinion, the liquidation of a presidential form of government in Ukraine would render Ukraine helpless before the more mobile presidential system in neighbouring Russia. As Oleksandr Severyn, both an activist of the “Maidan” Alliance and a member of KHPG, aptly noted the “political reform” changes the powers of State Deputies and of the President before the cessation of these powers. Those Ukrainian citizens who voted for a President and Parliament with certain powers will suddenly receive a Parliament with entirely different powers and a President stripped of the majority of the levers of power. He noted In particular that the Constitution of Ukraine, just as the constitutions of other countries, expressly prohibits the introduction of any changes during military action, state of emergency or revolution in the country. The time of voting for these amendments to the Constitution, 8 December last year, constituted precisely such a period of revolutionary upheaval.
In the opinion of the KHPG members, the very first petition to the Constitutional Court prepared in accordance with legislation will be sufficient to overturn the legality of Law No. 2222 from 8 December 2004. Those, moreover, who believe that revoking the amendments to the Constitutions voted on as part of a package of laws will immediately make the Presidents position illegitimate, are labouring under a misapprehension. KHPGs experts who are specialists in constitutional law are confident that amendments to ordinary laws will remain in force.
At the present time a Draft Petition has already been proposed by a Ukrainian State Deputy supporting KHPG and “Maidan” Alliances position. It puts in question the legal force of the “reform” on the grounds of the flagrant violations of constitutional procedure which were used in the process of imposing potentially catastrophic change to the constitutional system in Ukraine.
Our information source.
 Viktor Yanukovychs only educational qualifications were obtained in 2001 with a Masters in International Law from the Ukrainian Academy of Foreign Trade. He was later awarded the titles of Doctor of Sciences and “Professor” (translators note)
The right to a fair trial
Serhy Holovaty acknowledges that mechanisms for safeguarding justice are not fully developed iin Ukraine
The mechanisms for guaranteeing of efficiency and fairness of justice and for free access of people to the fair court are not developed in Ukraine, believes Minister of Justice of Ukraine Sergiy Golovaty. He expressed this opinion on 12 December to journalists in Kyiv.
“Ukrainian courts do not function in accordance with the system of the rule of law, although they are a part of this system. More and more frequently we observe the facts in the court practice, which are incompatible with the rule of law”, he said.
The Minister of Justice explained that he meant the cases of arbitrary actions of judges, artificial prolongation of consideration of cases, unfair decisions and irresponsibility of judges. “The work of judges and the legal system are the main guarantors of the rule of law. And when the judges do not fulfill their function in the society, we cannot speak about the existence of the rule of law”, told Golovaty.
Now the international conference “The rule of law: questions of theory and practice” is carried out in Kyiv. The conference is organized by the National University “Kyevo-Mogylianska Akademia”, the OSCE, National Commission for Consolidation of Democracy and the Rule of Law and the Ukraine lawyers foundation.Our informant
Conference “Problems of the court reform. Access to justice”
On 9 December 2005 the conference “Problems of the court reform. Access to justice” was held in one of the rooms of the Committees of the Supreme Council of Ukraine. Oleksandr Volkov, the Head of the Council of judges of Ukraine, Inna Emelyanova and Mykola Shupenia, deputies of the Minister of Justice, Olga Bulka, a deputy of the Head of the State judicial administration of Ukraine, Tetiana Zhayvoronok, the Head of the Council of judges of Kyiv, as well as scientists, lawyers and judges from all regions of Ukraine, took part in this conference. The conference was organized by the all-Ukrainian public organization “Foundation of contribution to justice”. Taking into account the fact that court reform in Ukraine demands permanent analysis and discussion by the leading professionals, the speeches delivered at the conference concerned the questions of judges staff, European standards of access to justice, disciplinary responsibility of judges, problem of non-execution of court decisions in Ukraine, expediency of introduction of jury in Ukraine and the ways of solution of these problems.
A number of law drafts were presented for discussion. The attention of the participants was attracted by the law draft “On the access to court decisions”, submitted by MP of Ukraine Vasyl Onopenko. According to this draft, the obligation is placed on judicial administration to keep the United State Register of court decisions, which must be opened for all citizens of Ukraine. Besides, the participants of the conference considered the draft of the Law of Ukraine “On introduction of changes into the Code of administrative proceedings of Ukraine” (concerning the establishment of basic principles), which was presented by peoples deputies M. Dobkin and O. Karatumanov, the law draft “On introduction of changes into the Law of Ukraine “On judicial system” (concerning the improvement of judicial system of Ukraine), presented by MPs V. Onopenko and V. Musiyaka, and the draft of the Law “On suspension of legal relationships following from the provisions of the Law of Ukraine that are appealed in the Constitutional Court of Ukraine as unconstitutional and violating human rights”.
The participants attention was also drawn to the appeal of the Council of judges of Ukraine to the President of Ukraine, the Head of the Supreme Council of Ukraine and the Prime Minister of Ukraine of 2 December 2005 on the increase of the level of respect to the judicial power in the Ukrainian society.
As a result, the conference approved the Recommendations on introduction of changes into the operating laws of Ukraine. In the opinion of the participants, first of all the amendments to the Law of Ukraine “On judicial system” should be adopted. These changes should envisage the order of the activities of qualifying judges commissions, anonymous testing of the pretenders to judges post, procedure of additional assignment of judges on the competitive basis, etc. It is also necessary to adopt, as soon as possible, the Law of Ukraine “On court fee”; the Foundation is going to start the elaboration of this draft in the nearest future. Recommendation has been given to the Supreme Council to elaborate and approve the Conception of reforming of the pre-trial investigation, as well as the Conception of national complex system of training, retraining and raising the skill of judges and personnel of state judicial administration. For guaranteeing of proper financial provision of courts it is necessary, the Recommendations read, to create the detailed list of budget programs.
Every day the interest to the judicial system increases in Ukraine both on the side of representatives of power and on the side of the society. State officials, peoples deputies and judges more than once insisted on the necessity of changing of the judicial system. Conduction of such conferences, which make possible the wide discussion of the existing problems of our judicial system, promotes the conduction of court reform in Ukraine.
The right of prisoners to correspond with the European Court of Human Rights has been recognized
The Supreme Council of Ukraine has introduced changes into some legislative acts concerning the rights of convicted prisoners to correspond with the European Court of human rights. In all, 322 peoples deputies voted for the adoption of this Law.
The Law, in particular, envisages introduction of changes, according to which prisoners and those remanded in custody have the right to correspond with the European Court, as well as with other appropriate bodies of international organizations which Ukraine is a member or participant of .
In compliance with this Law, administrations of colonies and prisons have no right to open the letters directed by inmates to the European Court of human rights. Earlier prisoners had to pass such letters to the administration in the opened envelopes, and could send the closed letters only to the the prosecutors office. In the beginning of 2000s similar rule was introduced for sending of complaints and appeals to the ombudsperson.
Now prisoners need only hand to the administration unopened letters addressed to the President and speaker of Parliament , the head of the Ministry of Interior, the Supreme Court, state agencies, public organizations, mass media, etc.Our informant
Access to information
Artemovsk mayor stamping down on the independent mass media
During last 10 years two kinds of television, communal and private, exist in Artemovsk. And now mayor Aleksey Reva has practically given the command to destroy the private cable TV company “Zakaz”. Well, why the mayor has flown into a rage? Maybe because the private TV company headed by Igor Sevastyanov began, since December 2004, to retranslate the channel “5 kanal”?
Aleksey Reva sincerely stated his intention in his article published on 22 December 2004 in the newspaper “Vpered” issued by the town council. In particular, he has accused Sevastyanov of betrayal of interests of the Party of Regions, the members of which they both are.
Yet, is it possible for a businessman to be a member of some other party or even to express some preferences in the Donetsk region, especially in Artemovsk? In Artemovsk, for example, almost every fourth adult has been a member of the Party of Regions (even more than in the CPSU), since the majority of workers of tax inspection and the greatest enterprises of the town (such as the local winery, plant for processing of non-ferrous metals, “Vistek”, etc.) were coercively driven into this party. The mayors order to attack “Zakaz” was fulfilled immediately by the local organization of the PR. The so-called “protest meeting against “Zakaz”” was conducted under the direction of deputy of the town council from the PR Severinov, a deputy manager of the plant for processing of non-ferrous metals, and member of the executive committee Andreev, the owner of a network of cafes and shops. At this meeting several tens of workers of the plant demanded to close the TV company “Zakaz”. Allegedly, the people did not want to watch “5 kanal”, but demanded to return two Russian channels, which Sevastyanov had stopped to broadcast because of absence of corresponding license. The executors of mayors will did not restrict themselves with the meetings and the indignant articles from “common people” published in the “tame”
press. In spite of the Presidents Edict on prohibition of persecution of mass media, the private company is checked by all organs – from tax police to the society for protection of consumers rights. And these checks accompanied by threats and instructions seem to be endless.
Everything is clear with the Party of Regions. Yet, why the local organizations of other parties, such as “Our Ukraine” and “Batkivshchina”, keep silence? Maybe they also support the closure of “Zakaz” and “5 kanal” (broadcasting of “Zakaz” is based on “5 channel”, the most “orange” one, by the way, so the Artemovsk dwellers, who want to watch the local news, prefer this channel)?How a representative of the local power may openly destroy the freedom of speech and human rights in his town?
Yet more on the Presidents “secret” decrees
The inverted commas around the word “secret” are required since the stamp “Not to be published” which has been assigned in the last 10 months to 42 Decrees issued by President Viktor Yushchenko is not set down in any law. Nor have regulations for working with documents bearing this stamp been provided by any openly available normative act. The same applies to the stamp “Not to be printed” which is used by the Cabinet of Ministers of Ukraine: there have been 12 such documents.
Of the 42 Presidential Decrees, 38 were given the stamp “Not to be published” before 1 April. There then followed a public promise to put an end to the practice of using this illegal stamp. It transpired that its application was regulated by an instruction not for public consumption from the Presidents Administration which had not been printed, since the instruction itself bore this selfsame stamp restricting access (or perhaps the stamp “Not to be printed” – how these stamps differ one from the other being difficult to fathom). However four more Decrees “Not to be published” have appeared since them – No. 663 from 18 April, No. 815 from 18 May, No. 1203 from 23 August and No. 1466 issued on 19 October. It is difficult to know what these Decrees are about. Several civic activists who sent formal requests for information to the President, asking for the names of the Decrees to be divulged (not even the actual texts!) were not graced with any answer at all, and were forced to lodge a complaint with the courts about the Presidents lack of action. It is known that the first two Decrees bearing this stamp, issued under the numbers 116 and 117 on 21 January concerned appointments or dismissals of the heads of local departments of the Security Service of Ukraine (SSU).
However there was also a 43rd Decree “Not to be published”, numbered 1616/2005 from 18 November 2005 – together with a Decree declaring the anniversary of the Orange Revolution (22 November) Freedom Day and another on fighting the shadow economy. On 21 November we found it on the Presidents official website www.president.gov.ua, yet several hours later it had disappeared. On that same day it was possible to find it on the website of the Verkhovna Rada of Ukraine www.rada.gov.ua, however it was removed from there as well. Then on 22 November the text of this Decree had already appeared on the Presidents website. It bore the title “On amendments to the Decree of the President of Ukraine from 21 March 2002, No. 277” and introduced amendments to Appendix No. 6 to the latter Decree: “On the lists of posts of military personnel and officers of law enforcement bodies which can be held by higher officer (commanding) personnel, as well as the highest military and special military ranks for these posts” and included the text of the actual Appendix. Amendments to Appendix No. 6 to Decree No. 277/2002 had been introduced previously through Decrees No. 837/2003 from 15 August 2003, No. 1225/2003 from 29 October 2003 and No. 1256/2004 from 18 October 2004. The first three Decrees bore the stamp “Not to be printed”, while Decree No. 1256/2004 was issued with the stamp “Not to be published”. Appendix No. 6 contained a list of higher posts in the State Tax Administration of Ukraine (STAU) and the tax police, as well as the corresponding highest ranks which officials occupying these posts can attain. The Head of STAU has the rank of Chief State Advisor of the Tax Service, while his or her deputies hold the rank of State Advisor of the Tax Service class one, the directors of Departments of STAU - State Advisor of the Tax Service, class two. The same class two rank is held by the Heads of STAU in the Autonomous Republic of the Crimea, Kyiv and in the 8 largest regions of Ukraine. The Heads of STAU in the remaining 17 regions have third class rank. The top rank for the Head of the tax police of Ukraine is that of Lieutenant-General of the tax police, the other highest-ranking heads of the tax police can aspire to the rank of Major-General. So what was the point of preventing access to this information? What significant damage could possibly be caused the defence of State interests – national security, territorial indivisibility and public order, etc (see Article 34 of the Constitution) by making this information public?Decree No. 277/2002 from 21 March 2002 was also amended by the Presidential Decrees No 345/2002 from 17.04.2002, No. 524/2002 from 06.06.2002, No. 811/2002 from 09.09.2002, No.1123/2002 from 02.12.2002, No. 1439/2004 from 30.11.2004, No.1452/2004 from 09.12.2004, No. 484/2005 from 17.03.2005, No. 1203/2005 from 23.08.2005, No. 1466/2005 from 19.10.2003. They all boast the stamp “Not to be printed” or “Not to be published”. It is logical to suppose that they relate to other Appendices to Decree No. 277/2002, and that all these acts concern ranks and salary of high-ranking officials of various State executive bodies. Hiding such information is entirely in keeping with the old Soviet habit of concealing their income, benefits and privileges from the population. Would it not be better for the Presidents Secretariat to give up such habits, to put a stop to this shameful and illegal practice and make all documents with illegal stamps restricting access public?
The Regime must act in a transparent manner
“A government without information being generally available,
or without the means for obtaining such information,
is nothing more than a prologue to farce or tragedy,
or, most probably, to both”.
This utterance was not pronounced by a modern Ukrainian “opposition clan member” who just recently, as a result of the Revolution, was toppled from his or her cushy bureaucrats number and is now trying to present him or herself as defender of the interests of the people. No, this eloquent phrase was spoken back in 1882 by James Madison, the then President of the USA. However, in the present day it cannot be said to have lost its relevance. Quite on the contrary, with the development of the information society, it has become even more topical.
The foundation of true democracy, and not that of fine words alone, is the fully active participation of the people in the procession of State decision-making. The voice of the public should be heard not only during elections when all candidates, of course, “remember” their obligations to the people, hold meetings, run hotlines, organize “public reception offices” and pour out promises, promises and more promises. Those who live in a democratic country have the right to exercise constant impact on the servants of the people, so that the latter, in taking decisions, are guided not by their own considerations, but by the interests of those very people who voted for them.
This is possible only under conditions when citizens are involved in the discussion over important issues and questions, when these discussions are held in a transparent fashion, publicly and openly. In the United States this principle takes the name “to allow the suns rays in” and is enshrined in a special law and envisages the holding of the appropriate gatherings (effectively public hearings) for a joint solution to government issues.
However, in order to discuss any issues, to have ones own personal opinion about them, the vital prerequisite must be information on the basis of which our opinions may be formed. In leading democratic countries laws have been adopted on freedom of information thanks to which all residents of those countries are able to receive copies of certain documents from various State bodies, ensure that important normative acts are much public and receive the necessary responses in writing to requests for information. The current Law of Ukraine “On information” has shortcomings, however even the possibilities with regard to access to information set out in this law are scarcely used by Ukrainian citizens. Officials on the other hand who do, nonetheless, sometimes have to response to requests for information, as a rule consider the information held in State bodies to be virtually their own private property and more often conceal it, then issue it to applicants. They usually have little professional training in this field, and still less desire to conscientiously work on this (it being easier to write a dozen formalistic “fob-offs”, than one full and adequate response).
In addition, State civil servants and officials of bodies of local self-government should provide information on an ongoing basis about their activity and report on work carried out. This is achieved throughout the world through the creation of the appropriate press departments which issue information through information agencies, organize press-conferences for the mass media, publish press releases, etc. In our country, all democratic innovations get built upon a post-Soviet mentality as a result of which some extraordinary hybrid monsters appear. The area of providing information to the public is no exception. In the first place, the system of “State and municipal mass media”, which had demonstrated both moral and economic bankruptcy, has been retained. Instead of objectively providing information about new developments in the State and regions, these constantly turn into mouthpieces of unadulterated propaganda and campaigning (it goes without saying, to the advantage of their “bosses”). Incidentally, the new regime had promised to radically change this and to remove State ownership of the mass media. However, as is clear, on the eve of parliamentary elections, it has decided not to deprive itself of a guaranteed piece of the media resource. An example of this can be seen in the fact that the idea of creating, on the basis of Ukrainian Television Channel 1 (UT-1), public television has remained for the time being only words. Secondly, the press services and public relations departments, created everywhere under specific State institutions, work inside a distorted information and legal field: instead of resolving how to best communicate information to the public through various forms of the mass media, they effectively engage in playing the middle man and adapting their programs to suit State and municipal needs. The remaining newspapers and television and radio institutions are forced to make do with such crumbs of information as can be gleaned from the occasional press releases.
On the other hand, the situation could change for the better (and, slowly, it is indeed already changing). However for a radical improvement, the penny must drop with State officials that the people will trust them more not when they take socially important decisions behind the scenes, secretly, and how they want, but rather when they consult with people in a considered and transparent fashion. Not when the “electorate” is fed with triumphant fanfare and propagandistic slogans, but when they provide truthful information with explanations and details. Not when some paper or other which originated in a local administration office or executive committee, is considered virtually a “State secret”, but when documents are available to the wider public so that the people did not begin to suspect that the authorities are conning them or are involved in dubious dealings.
For this to occur, however, the public too must be more aware and demand that their servants, that is, State officials behave in a more transparent manner. For, as we know from back at our school desks, its no shame to not know, but it is shameful to not want to know.
Prohibition of discrimination
Sometimes it is a pleasure to acknowledge ones own mistakes
Sometimes it is a pleasure to acknowledge ones own mistakes.
The mistake related to customer price inflation in 2005. The State committee of statistics has informed that in November these prices increased by1.2%, and during January-November 2005 – by 9.4% in comparison with December 2004.
Now December has begun, the month, in which prices rise most rapidly. And, unfortunately, the annual inflation will, most probably, exceed 10%, contrary to the demand of Viktor Yushchenko to the National Bank. I expect that inflation will be about 11%.
This figure should be must smaller, since the commercial crediting of the large-scale investment projects, which are urgently necessary for the development of Ukraine, assumes the amounts considerable for economy only if the inflation of customers prices does not exceed 3-5% per year.
However, only two-three months ago, when Yulia Timoshenko was the Prime Minister, both the author of this article and many other experts predicted much greater rate of inflation. I, in particular, believed that in the current year the increase of customers prices would be more than 15%. The vehement social demagogy of these months, plus the declarations about privatization (contrary to logic and Viktor Yushchenkos position), plus the authoritarian style of direction of the government, formed just such opinion on the nearest price future of Ukraine.
Another factor. The replacement of the Prime Minister-populist (Yulia Timoshenko) with the Prime Minister-pragmatic (Yuri Yekhanurov) saved the Ukrainian government from the attacks of childish hysteria, which, naturally, helped all subjects of the market to get rid of the economic fever and uncertainty. So, we observe a noticeable improvement. And not only in the sphere of prices.
It is worth noting that the economy has practically stopped its fall, and now we can expect for the stable economic increase. Thank goodness!!
The work of the police is becoming more open to public control
On 29 November 2005 the first spot check of a mobile group, created by order of Yu.ry Lutsenko, the Minister of Internal Affairs of Ukraine, for control over the observance by police of the standards of human rights, was carried out in the Chernihiv region. Such groups, including, in particular, representatives of the Ministry of Internal Affairs of Ukraine and public organizations, will work in all regions of Ukraine. Once a month they will visit, without prior warning, district police departments and temporary detention centers, communicate with convicts and other citizens, analyze citizens complaints against the actions of police. Analytical reports will be compiled on the results of the work of mobile groups, and the Ministry of Internal Affairs will study these in order to eliminate failings in the work of law-enforcement organs.
Such mobile group in the Chernihivregion includes Natalya Romanova, a representative of the Chernihiv public committee for human rights protection, and Valentina Badyra, a representative of the Chernihiv womens human rights protecting center. During the first raid the group visited the Chernihiv, Menskiy and Sosnitsy districts of the region. Members of the group examined temporary detention centers in these districts. In the Menskiy detention center, intended for 29 persons, 3 convicts were kept at the moment of the visit of the group. Size of the cells, norms of lighting and ventilation do not correspond to the European standards, the room for meetings is absent at all. Bed-linen is a problem too. All this is connected with the fact that the means for reconstruction of the detention center have not been allotted, and financing of this establishment does not allow to observe all demands.
The detained, with whom the members of the group communicated, did not know much about their rights. So, citizen K., who was detained in compliance with Article 140, part 2 (he had already had two criminal records and had been extradited from Russia), asked, why all detained in Kharkov were cropped close by force and why free correspondence was not permitted in Ukraine (it could be permitted only by an investigation officer). Two out of three convicts did not obtain the warrants during the detention. Another problem is disclosure of TB cases. So, it is impossible to make the immediate fluorography in the temporary detention center, it can be done only after 3 days. Medical aid as a whole in the detention center is very bad. There are only most elementary medicines. So, citizen P., detained after Article 185 of the Criminal Code, is held in the detention center almost for a month, since the Chernigiv investigatory isolation ward refuses to accept him because of his diagnosis, and he cannot obtain proper medical aid in the temporary detention center. Workers of the detention center do their best for improvement of the upkeep conditions. Food is transported from the local hospital, the dirty clothes are laundered in the same hospital. The detained have the opportunity to wash themselves, there is a small library, but the lack of necessary editions, such as the Criminal Code and Constitution of Ukraine, is observed. The Sosnitsy temporary detention center has been reconstructed, so the cells are equipped and lighted in compliance with standards, ventilation is improved owing to the windows with special system, which gives the opportunity to open a window leaf.In district police departments the members of the group communicated with operative workers, investigation officers and heads of the departments. The impression has formed that law-enforcers want to cooperate and understand the necessity of more transparent principles of work. This was pointed out by deputy minister Volodymir Malay, representative of the Ministry of Interior in the Chernigiv region, who headed the work of the mobile group. In the Menskiy district the members of the group contacted with the only advocate working in the district. His phone number is placed on the informational board in the district department. Unfortunately, there is no advocate in the Sosnitsy district. This revealed the problem of rendering of legal aid to population and, in general, the access of citizens to justice.
HAS UKRAINE ONCE AGAIN REACHED A CROSSROADS?
The latest constitutional (political, parliamentary, government) crisis in Ukraine coincided on this occasion with New Year. People thus continued their celebrations, hoping in the face of all problems. And the problems had certainly accumulated by then. Friction over the Budget, over gas and energy … However all of this in a political sense was mere euphemism, behind which could be found something relatively simple and understandable – Ukraines parting with the empire, totalitarian mentality and post-communism had dragged on far too long.
In fact, in the economic and political sense totalitarianism has not existed for quite some time in Ukraine, however post-communism remained, at a psychological mentality level and on a moral and ethical plane.
One can find plenty of manifestations of just such an everyday psychological post-communism, and at virtually all social levels and positions. However more than anywhere else, it makes itself felt in the overall political demagoguery which is like a blanket covering the country. Post-communism in Ukraine is still alive and kicking, we see it in the political hysteria of fringe parties, in the “merry” domination of expediency over lawfulness, as well as in the open egoism of the most prominent political figures.
From the outside it looks as if the public discussion organized by the free mass media was revolving around seemingly classical issues: constitutionalism, democracy, the benefits of a parliamentary system, the drawbacks of a presidential republic, as well as honest and transparent elections. However, at a deeper level, so to speak in its logical subtext, we are dealing with something entirely different and separate.
In particular, behind the scenes of organized social communications, again and again the question familiar to us all raises its head: speak and act honestly, or continue to hoodwink all those around? Political hypocrisy has become our national ill. Virtually all those occupying the upper echelons of power show duplicity both in speech and in their actions.
Hypocrisy is displayed also by the judges, official human rights representatives and members of the Central Election Commission who have added their names to party candidate lists, and by the millionaires and billionaires who have abandoned their business “for the sake of the general good”. Just as insincere is Volodymyr Lytvyn who, governed by considerations of political “calm” and “stability”, is not allowing the swearing in of constitutional judges. All around our political elite makes altruistic noises, while acting for their own gain and with overt pragmatism. As Henry St. John, Duke of Bolingbroke, once said, corruption is simply the lack of civic virtue. A corrupt person is preoccupied with him or herself and cares nothing for the good of the nation. Such a collapse in the morality of the individual and such degeneration of everything – beginning with fundamental principles and ending with life in society – leads to the decline of the State.
Furthermore, this spring the upper ranks of the Ukrainian establishment are to once again push their way far upwards. Dmitry Pisarev once described this phenomenon in the following terms: “those dwelling on the lower levels know that its really fun living on the mezzanine, and therefore the entire pyramid is governed by the vehement desire to crawl upwards. We find the ambitious and gourmets crawling upwards, together with the vain nonentities. However the upward struggle is also shared by marvellous talents and people untainted in the moral sense because it is only on the higher level that one finds intellectual activity and a certain degree of moral independence. Beauty, intellect, talent, wealth, iron will, all that to some extent constitutes the strength of human beings, all that is used in getting up to the higher level. Only those remain down below whom nature or circumstances have deprived of any possibility of raising themselves”.
In the process of climbing up to the top deck, the former Prime Minister unexpectedly discovered hidden qualities as a supporter of a “chancellor” republic, while a judge of the Supreme Court and the Human Rights Ombudsperson are embellishing problematic electoral top five slots with their titles. It would appear that artificial motivation and argument have attained these days even the level of scientific theory. In a country where over a number of years already very few have seriously and in any true sense studied humanitarian disciplines, political scientists and constitutionalists have been trying to persuade the general public of the attractive features of a parliamentary system. For supposedly all of Europe is a bouquet of parliamentary republics. For some reason in this they forget that Europe in addition still remains a monarchy. Belgium, the United Kingdom, Denmark, the Netherlands, Norway, Sweden … Why, for example, should Ukraine not become a monarchy then? All the more so since this was already something Khmelnytsky, Samoilovych and Rozumovsky were concerned about. Surely we do not lack the genealogical roots and names?
A presidential republic is considered by our in every sense depraved political elite to be the epitome of authoritarian rule. However Argentina, Brazil, the United States, the Philippines, Georgia and in part France have been and still remain entirely successful presidential republics. In the USA a presidential republic was liberal-democratic from the very outset. For the third century in a row, the population election a strong president with wide-reaching executive powers, yet no one could cite any significant precedents of authoritarian rule. On the other hand, the world has witnessed more than 700 successful military coups carried out in such countries as Algiers, Nigeria and Pakistan. In my opinion, these statistics provide proof of one thing alone – that in each specific case what is significant is not the constitutional set up, but its semantic substance, the level of national political and legal culture. It is precisely the latter which we so seriously lack.
Therefore, in any instance one can hardly consider that a parliamentary system will become a panacea for the ills of the Ukrainian political fancy-free brigade. Teodor Dezamy once wrote in his “Kodeks Obschchnosti” [“Code of Communal Life”]that collective tyranny is not only possible, but does indeed exist – the greater the scope of rights of peoples representatives, the heavier are the chains on simple mortals: instead of one ruler, there are now many. The golden rule: “Vox Populi – Vox Dei” [“The Voice of the people is the voice of God”] is popular, according to John Locke, however he added that he was unable to recall a single instance when God had revealed his commandments through the voice of the crowd, or where nature had made her truth known through the bleating of a herd. .
The issue of constitutional reform in Ukraine cannot then under any circumstances be deemed a question of legal form or coating. Whether Ukraine is a parliamentary republic, or gravitates more towards a presidential state has always been and remains a question of the free choice of the people. Open speculating on legal setups and structures is however unacceptable. Therefore, whatever our official ideologues may assert, on the political forestage a picture which is extraordinarily primitive in its composition is emerging. The Ukrainian nobility – owners of property, etc, the many-party nomenklatura, as well as simply the nouveau riche, are attempting through all means fair and foul to form their own little private salon, a club-casino for millionaires under the sign “Verkhovna Rada of Ukraine”. This institution is called upon just in passing to fulfil the public functions of parliament.
If one adds to the club membership deputy powers as well, and to the latter – all the legal perks and guarantees, then by spring already the builders on Hrushevsky Street will have handed over ready for use a real kind of Disneyland for adults. Apartments in the capital and a ministry salary for petty expenses will embellish their modest State servant existence. Their official and diplomatic passports will smooth out visa requirements crossing borders. What more is needed for the first Ukrainian landing on united Europe? 80-90% of those worthy figures will be natives of Kyiv or those granted such status – the “Romans” of fleeced and abandoned Ukraine..
It would seem that no one in our parliament, as once in old Yugoslavia, wants a vertical staff circulation. And why indeed drop these important individuals down from their heights to the valley, if they move around so comfortably on the principle of a revolver drum? Whats more, its less problematical for journalists. The ideas, the style and the ties have long been tried and tested. A basic answer is already available for the majority of questions. The main thing is that they are all concerned about the good of Ukraine. And who cares that they have more pre-election programs than there are plots in the literature of the world? The descendants of the Trypillians can pull off not just that.
Was the dismissal of Yury Yekhanurovs government legal? If one ignores the flagrant violations of constitutional procedure, then yes. And who among us at the end of the day is seriously concerned about issues of legal procedure? If one analyses the actual dismissal rather than the procedure, then one has to acknowledge that in the given case virtually all norms in the Main Law (the Constitution) needed for the dismissal have remained unchanged and without any qualifications. Article 87 of the Main Law allows the current parliament to consider the issue of government responsibility, while point 12 of Article 87, Part 1 of the Constitution – to resolve the issue of the appointment of any of the candidates put forward by the President. As for the President, on the basis of Point 9 of Part 1 of Article 106 of the Constitution, which has also not been either cancelled or qualified, he should put forward to the parliament a candidate for Prime Minister on the submission of a coalition of the parties. The fact that such a coalition in reality does not exist is impossible to prove. Internal parliamentary convulsions are regulated by the Regulations, and it is “simpler” with them since they are not a law. In the final analysis, no constitution is capable of stopping political life. If, God forbid, the government fell victim to a terrorist attack, it would willy-nilly need to be somehow replaced.
Thus, when the Minister of Justice. Serhiy Holovaty, confidently declares that the actions whether it be of the judiciary, or of the executive branch of power are illegal, one can only sympathize with him. On the other hand, it is precisely in the formal sense that in Ukraine there is still some attempt to adhere to normative regulations. In reality Ukraines serious legal problem is a conscious and brazen misuse of the law. It is a sad fact that nobody is even shocked that within the walls of the Verkhovna Rada, it is not deputies themselves who vote, but their magnetic cards taken away from them (!) by the party bosses. Nor that it is not Deputies aversion to voting papers that is preventing the judges of the Constitutional Court from being elected. Nor that judges, a member of the Central Election Commission and world-famous businessmen are registering as candidates to become National Deputies. They claim that our legislation formally allows all of this. However any reputable court would declare such application of the law to be banally ordinary abuse, that is, the use of the law for purposes which run counter to it.
The crisis in Ukraine can be attributed, therefore, not only to the fact that the Constitution and laws are executed inadequately, but also to the way in which they are very often used purely for the form. As a result we can draw the conclusions that an elementary level of legal and political culture has yet to be fully developed in Ukraine. Law, it is generally recognized, begins at the pre-legal level: freedom to make agreements, keeping promises made, confidentiality of loans and credit, provision of security. However in the Ukrainian State-building reality, officials and politicians are only involved in forming ever newer coalitions, breaching in the process agreements only just reached. All of this, at the end of the day, is reminiscent of adolescents playing “Monopoly”. More often than not the succession of promises made and then broken which are typical of this game end in the rules being declared completely archaic.
Most regrettably, the Ukrainian political superstructure has long been characterized by a lack of respect in their attitude to the Constitution and legislation, as well as to their own political position. Even worse, this national feature has now become common knowledge both in the West and in the East. Can such a state of affairs be considered a crisis? I will attempt to give an answer by first dividing the question into two. Firstly, is this crisis constitutional? Then, is it also political? The correct answer, I believe, is contradictory – both yes, and no.
To the present day on the territory of Ukraine the issues being addressed are not so much of a legal or political nature, but rather of geopolitical and historical significance and substance. One does not need to specially study the art of diplomacy to understand that the Ukrainian Constitution is deformed and breached in our country not under the gaze of sincere supporters of a European parliamentary system, but of the sincere fans of pan-Slavonic “universalism”. This is in fact achieved also through commercial gas prices. After all, the entire political and foreign trade activities of our northern neighbour are an embodiment of the latest uniting meta-plan.
It would definitely be better for everybody if Ukrainian politicians and experts spoke about this openly. However they consider it wiser to continue playing games with their electorate. There can be no doubt that Ukrainian artistic and theatrical circles, students, academics and journalists would like the borders of a united Europe to be moved further to the East as quickly as possible. However whether Ukrainian businesspeople would like this is by no means a rhetorical question. The majority of them consider themselves to be European and a good many even send their children to study at western universities. However, in contrast to representatives of the national intelligentsia, these businesspeople want and can enter Europe not, so to speak, en masse, but on an individual basis. In the political and economic sense Europe is not so very interesting for them, with business simpler to do with Russia.
Yet would it be advantageous for democratic Ukraine to return to the friendly embrace of their northern neighbour? At an objective level, the world is not unlimited, and the natural and energy resources of the Russians are beyond our feeble conception. In addition, the traditional cultural heritage is linked to Russia. There are also other issues which continue to make Ukrainians ambivalent over the Russian question. However if this is the case, then the Ukrainian elections in spring are not simply the latest chance to say “yes” or “no” to parties of various political leanings. Whether we like the prospect or not particularly, this spring we will have to take the next national test of our sovereignty and of the degree to which freedom has become firmly rooted.
The Russian aristocrat Pyotr Kropotkin once wrote that the main uprisings and revolutions in the world have taken place in order to defend human rights, that is, in order to stand up for freedom. The struggle for freedom has therefore always been on a larger scale than efforts to achieve a rise in salary. Another Russian anarchist, Mikhail Bakunin, declared that if previously the French proletariat had been prepared to hand over the attractions of freedom in exchange for the advantages of material well-being and comfort, this was no longer the case.
We will find out in the near future whether our contemporaries will be tempted by “wine, tea and big fish” (Vasily Rozanov). The Orange Revolution proved beyond doubt that the Ukrainian people are ready to fight for freedom. There remains however the strategic question as to the degree of such readiness. Ukrainians had exactly a year to take important steps towards freedom. And it would appear that specifically in consolidating freedom this year was not spent effectively.
It is entirely nature that the sounds of political sirens can be heard today on the full length of our north-eastern borders. Moreover, “comfort” is not only cheap Russian oil and gas, unlimited territory and virtually all climate zones. It is also a powerful culture, common history and a language which doesnt need to be specially studied. Freedom, on the other hand, as competitor, is splendid in the fact that its content cannot be foreseen. Freedom promises nothing, but rather has the habit of giving much that is unexpected. And although it is specifically freedom that today is not so very alluring for our pocket, freedom turns us towards generosity and humanity. It is the latter that Ukrainians now so badly lack. Freedom, according to Vaclav Havel, promotes the restoration of justice, the ability to see the world not only through ones own eyes. Freedom is wisdom which embodies a sense of taste and faith in the importance of specific actions. However freedom never offers anyone universal recipes for salvation.
In order to understand freedom and make use of its opportunities, one needs to have not only the instinct, but knowledge, educational technologies and particular instruments. It is useful to learn the technology of freedom in the West, and that is significantly harder to do at home. Since we begin with we needed to give an appropriate level of attention to the teacher. Viktor Yushchenko promised to send thousands of Ukrainian students to countries where freedom had long and securely taken root. However it ended up as it always does with virtually nobody studying in the West on Ukrainian money. Provincial teachers continue to live on pitiful salaries, and in regional centres they have long done without bookshops.
It would thus seem that the revival of the functions of Ukrainian freedom will again take place without anaesthetic. We have yet again ended up at the crossroads, while our body of Deputies clearly aspire in the direction of “to have” rather than “to be”. The President recently gave a pragmatic speech before journalists about Ukraines prospects. However today it would not be easy to predict how exactly Ukrainians will respond to the March challenge of freedom. To some extent one can say that they have yet again been betrayed by the national elite.
As Zbigniew Brzezinski said quite recently, if Ukrainians do not wish to forget about progress for ever, their leaders will need to pay more attention to principles. It is extremely likely that it is specifically principles that we most badly lack right now. It is clear at least that these have not thus far been in any way attractive to any of the political forces in Ukraine. And yet, we will have to somehow establish them.
We protest against the tightening of control over civil society (Appeal from Russian non-governmental organizations)
As representatives of Russian nonprofit-making and non-governmental organizations, we wish to express our deep anxiety in connection with the consideration in the State Duma of the draft law “On introduction of amendments into some legislative acts of the Russian Federation”, aimed at toughening control over the institutions of civil society. The suggested changes to the legislation entirely contradict the declarations of the political leaders of Russia regarding their supposed support for the development of civil society. Instead of “stabilization” and “equality”, declared by authors of the law draft, adoption of these changes would result in paralysis of public life, destabilization and arbitrariness in the legal sphere.
Society and state are yet to fully appreciate the scale of activity and the significance of Russian non-governmental organizations, which make noticeable contribution to the economic and social development of the country and which assume the functions that are not fulfilled by the state and market. The adoption of this law draft will cause termination of the activities of many organizations and will inflict essential damage to the interests of our country and development of Russia.
Realization of the law draft “On introduction of changes into some legislative acts of Russian Federation”, prepared by a group of deputies of the fractions “Edinaya Rossia”, “Rodina”, CPRF and LDPR, will throw our society back at least 15 years, when the first Russian laws on public associations were adopted. By the unanimous estimate of Russian and international experts, the considered law draft is, undoubtedly, discriminatory regarding non-governmental organizations, does not comply with the international practice of regulation of activities of non-commercial organizations, contradicts the Constitution of Russian Federation, norms and principles of international right. The law draft restricts, noticeably and groundlessly, the constitutional right of citizens to create associations, painfully influences the legal status of public associations and non-commercial organizations, restricts their freedom, create the unequal conditions in comparison with the commercial structures, state and municipal non-commercial organizations.
So, the constitutional right of citizens for creation of informal unregistered public association without the status of juridical person will be restricted: now they will have to notify the organ of state registration about creation of an association. At that the order of such notification is established not by law, but by the Government of Russian Federation. Besides, the law draft contains rather vague list of additional reasons, on the basis of which registration of an organization may be rejected.
The consideration law draft envisages the unjustified toughening of control over the activities of all non-commercial organizations, independently of the sphere of their activities. It is planned that the organ of state registration will have additional authorities for control over the contents of activities and spending of own funds of non-commercial organizations; at any time and without any grounds this organ will have the right to request about financial-economic and administrative documents of the organizations. The suggested legislative initiative not only deprives public associations of the status of self-governing organizations, but also creates the basis for arbitrary action on the side of state officials.
The strictest constraints are imposed on the activities of foreign non-commercial organizations on the territory of Russian Federation. It is proposed to prohibit the activities of representations and branches of foreign and international non-commercial organizations. They will be able to create their structure subunits only in the form of public associations registered as Russian juridical persons, which is legally impossible for the overwhelming majority of foreign organizations. Thus, the activities of many non-commercial organizations, which work in various spheres, including the spheres of culture, social support of population, health protection, education, environment protection, etc., will be, in fact, illegal in Russia.
Foreign citizens, who do not reside permanently on the territory of Russian Federation, will be deprived of the right to create non-commercial organizations and to be founders or participants of other non-commercial organizations. This directly violates the Constitution of Russian Federation, which guarantees to everybody (but not only to Russian citizens) the right for association, and deprives our country of many unselfish benefactors.
A number of suggested changes directly contradict the norms of international right and obligations of our country, in particular, several articles of the European Convention on protection of human rights and fundamental freedoms ratified by Russia, thus undermining the prestige of Russia as a guarantor of international right. In case of approval of this law draft, the irreparable damage would be inflicted to reputation of our country, which will be especially noticeable on the eve of chairmanship of Russia in the “great eight” from 1 January 2006.
By experts estimation, the adoption of the law draft will have the grave consequences for development and functioning of civil society during the nearest months. All Russian non-commercial organizations will have, during one year and under the threat of liquidation, to bring their statutes in correspondence with new demands and to register themselves in the organs of justice. This procedure expects several thousands organizations. Taking into account the indistinct and wide criteria for rejection of registration, contained in the law draft, it will inevitably paralyze the work of non-commercial organizations, including charity, cultural, youth, human rights protecting and ecological ones. Besides, the process of simultaneous re-registration and liquidation of hundreds of thousands of Russian non-governmental organizations, as well as bureaucratic control over their activities, will require considerable expenditures from the state budget, about which the authors of the changes purposely hush up.
No consultations and discussions of the law draft with the non-commercial organizations was not conducted at all, in spite of declarations of the leaders of our country about the necessity of dialogue between the power of civil society. The closed character of preparation of the law draft and wish of its authors to adopt it before the beginning of 2006 evidences that initiators of the draft realize its orientation against the interests of civil society and impossibility of its approval in case of real open public discussion.
We are sure that civil society in Russia needs not “stabilization”, but the intensive development. Total control cannot promote development. Taking into consideration the discriminating character of the suggested draft, high possibility of bureaucratic arbitrariness at its application, contradiction of the law draft to the Constitution of Russian Federation and international obligations of Russia, negative economic and social consequences of probable reduction of the programs of non-commercial organizations, expensiveness of application of the law and absence of any reasonable arguments in its favor, we are turning to the Government and Parliament with the demand not to endorse this legislative initiative.
We protest against toughening of control over civil society and support its free development for the welfare of our country.
Ludmila Alekseeva, Moscow Helsinki Group
Manan Aslamazian, news agency “Internews”
Aleksandr Auzan, Institute of the national project “Obshchestvenny dogovor”
Ludmila Vakhnina, human rights protection center “Memorial”
Valentin Gefter, Institute of human rights
Lydia Grafova, Forum of migrant organizations
Leonid Grigoryev, Association of independent centers of economic analysis
Galina Grishina, Public association of womens initiatives “Vostok-Zapad”
Aleksandr Daniel, International society “Memorial”
Yuri Dzhibladze, Center of development of democracy and human rights
Svet Zabelin, International social-ecological union
Oleg Komarovskiy, Institute of the national project “Obshchestvenny dogovor”
Ida Kuklina, Association of committees of soldiers mothers of Russia
Tatiana Lokshina, Center of promotion of research of civil society “Demos”
Arseniy Roginskiy, International society “Memorial”
Elena Rusakova, Youth center of human rights and legal culture
Natalya Samover, historian
Natalya Taubina, Foundation “Obshchestvenny verdict”
Mikhail Timenchik, Foundation “Tochka opory”
Elena Topoleva, Agency of social information
Grigoriy Shvedov, International society “Memorial”
By 1 December 2005 this letter has been signed by 1348 persons.
The appeal is opened for signing by all interested citizens and organizations.