“Prava Ludiny” (human rights) monthly bulletin, 2006, #01

Since the passing by the Verkhovna Rada on 10 January 2006 of Resolution No. 3295-IV “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” , there has been animated discussion in the Mass Media of possible ways of changing or revoking this. All of the ideas and suggestions put forward effectively boil down to three conceivable variants for resolving the problem.

The first is the proposal to simply not recognize the Resolution of the Verkhovna Rada since it was passed with infringements of procedure stipulated by the Constitution of Ukraine. This was the position which was expressed back on 10 January by the President of Ukraine, Viktor Yushchenko, and backed by the Prime Minister, Yury Yekhanurov.

We have already expressed our opinion in this regard (http://khpg.org.ua/index.php?id=1138111171 ) which can be summarized as follows: from the formal legal point of view, the Resolution of the Verkhovna Rada of Ukraine “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 from the moment of its coming into force must undoubtedly be implemented.  Only the Constitutional Court of Ukraine may declare this Resolution to not be in compliance with the Constitution of Ukraine (declare it unconstitutional) on the grounds of a breach of the procedure for its review and adoption stipulated by the Constitution of Ukraine.  Furthermore, until such time as the Constitutional Court of Ukraine issues such a ruling, no other body may revoke the Revolution adopted by the Verkhovna Rada of Ukraine on 10 January 2006, formally declare it unconstitutional), ignore it or call for it to be disregarded.

A second way of resolving the issue is for the relevant parties (in particular, the President of Ukraine, or not less than 45 State Deputies of Ukraine) to exercise their constitutional right to turn to the Constitutional Court of Ukraine with the constitutional petition with regard to declaring the Resolution of the Verkhovna Rada of Ukraine On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 not in compliance with the Constitution of Ukraine.

We are all aware, however, that this step is improbable given the lack of a constitutional full composition of the Constitutional Court of Ukraine and the fact that it is unlikely that in the nearest future the judges of the Constitutional Court of Ukraine  will be sworn in.  At the same time, we believe that it is precisely in this direction that the activity of the Head of State, Head of Parliament, people’s representatives and the Ministry of Justice should have been focused (and not on political accusations of one institution by another, on political rhetoric and commentaries of the situation that had arisen).

Particular attention should be concentrated on the fact that the swearing in of the judges of the Constitutional Court of Ukraine is not a right, but the duty of the relevant State bodies and officials. The legal significance of this procedure is in the fact that specifically this process is the last legal step with which legislation links the taking of office of judges of the Constitutional Court, and thus the assumption of their powers.  It is specifically from the day that a judge of the Constitutional Court is sworn in that the regulations of the Law of Ukraine “On the Constitutional Court of Ukraine” and the Regulations of the Constitutional Court of Ukraine take force in full measure.

The special procedure of swearing in a judge of the Constitutional Court mentioned above is to ensure the process of succession in the activity of the Constitutional Court of Ukraine. Neither the Constitution of Ukraine, nor current legislation set out any possibility for suspending the activity of the Constitutional Court. This means that it should work without breaks. Therefore all State bodies and officials on whom legislation vests the duty of forming the Constitutional Court of Ukraine and of swearing in the judges of the Constitutional Court must coordinate their actions and are obliged to cooperate among themselves regardless of their political preferences, political prognoses and their own perception of political prospects.

In accordance with Part 3 of Article 17 of the Law of Ukraine “On the Constitutional Court of Ukraine”, a judge of the Constitutional Court of Ukraine «makes his or her oath at a sitting of the Verkhovna Rada of Ukraine which is held with the participation of the President of Ukraine, the Prime Minister of Ukraine, the Head of the Supreme Court of Ukraine, no later than a month after the appointment of the said judge of the Constitutional Court of Ukraine”.  This means that the Speaker of the Verkhovna Rada was obliged to agree in advance a date for this special sitting of Parliament with the people mentioned above and ensure that there was no clash with official visits, and then add the event to the agenda for sittings of the Verkhovna Rada of Ukraine, as well as issuing in advance formal invitations to the said State officials to attend the sitting.

The inaction of the Speaker of the Verkhovna Rada of Ukraine and his vice-speakers, on the one hand, cannot be justified by any assumptions about the likelihood that the Constitutional Court of Ukraine will be used by certain political factions in order to “block” the political “reform” through declaring the Law of Ukraine  “On introducing amendments to the Constitution of Ukraine” from 8 December 2004 unconstitutional, while on the other must be viewed as improper carrying out by a State official of the duties of his office, or even as negligence or misuse of power.  Thus, the swearing in of judges of the Constitutional Court of Ukraine must not be the result of political whim, preferences, bias or political engagement.

Furthermore, in accordance with the Decision of Constitutional Court of Ukraine  from 17 October 2002 № 17-рп/2002 «The Verkhovna Rada of Ukraine is vested with the right to pass laws and carry out other constitutionally stipulated powers on condition that at the plenary sittings at the time of voting the number of State Deputies of Ukraine present is not less than the number which according to the Constitution of Ukraine is needed to make the relevant decision (Part four of Article 89, Article 91, Part four of Article 94, Parts two, five and six of Article 111, Part one of Article 135, Article 155, Part one of Article 156)”

However since Parliament is taking no decision as regards the swearing in of judges of the Constitutional Court, one can draw the conclusion that such a special sitting of Parliament will be empowered regardless of the number of State Deputies of Ukraine who for one reason or another are absent.  Any attempts to impede the holding of a sitting of the Verkhovna Rada of Ukraine intended for the swearing in of judges of the Constitutional Court of Ukraine, should be classified as obstruction of the implementation of powers and as impinging upon the foundations of the constitutional system.

However, in the opinion of most politicians, legal specialists and publicists, the most realistic and therefore also the most acceptable would be the third option. This would involve the Verkhovna Rada of Ukraine changing their own Resolution № 3295-ІV from 10 January 2006 “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine”. It is this last that the President of Ukraine, Viktor Yushchenko is insisting upon at present and he has already turned to the Verkhovna Rada of Ukraine with the relevant demand.

Taking into consideration these circumstances, we deem it to be necessary to carry out a constitutional and legal analysis of the legal grounds for implementing the last suggestion in practice.

According to Part 2 of Article 19 of the Constitution of Ukraine “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”. This constitutional provision means that State bodies do not have the right to act on their own discretion and as they please. They may take only those decisions which are directly envisaged by the Constitution and the laws of Ukraine.

A detailed analysis of the constitutional powers of the Verkhovna Rada of Ukraine demonstrates that according to Part 1, Point 12  of Article 85 of the Constitution of Ukraine Parliament has the right only to make a decision about the dismissal of the Prime Minister of Ukraine and members of the Cabinet o Ministers of Ukraine. The Ukrainian Parliament does not have the right to change its own decision regarding the dismissal of the Prime Minister of Ukraine and members of the government.  Nor does any  other law of Ukraine provide this right.  On the basis of this, one can conclude that the Verkhovna Rada of Ukraine cannot change its own resolution about the dismissal of the government.

The theoretical prerequisites for such a conclusion are studied by law students during their first year at a law institute when considering the grounds for the emergence, change or suspension of legal relations. Every lawyer knows that such grounds are provided by a legal fact (or combination of such) which can be law-creating, with which the law connects the appearance of legal relations, law-amending, with which the law connects amendments to existing legal relations, and law-suspending, which are involved in the law accordingly with suspending legal relations. An analysis from this position of the formal legal meaning of the Resolution of the Verkhovna Rada of Ukraine “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 it is easily possible to come to the conclusion that this is specifically a law-suspending legal fact. From the moment that such a Resolution comes into force, the government is unconditionally considered as being dismissed, however in accordance with Part 4 of Article 115 of the Constitution of Ukraine it continues to carry out its functions.

There is only one single way that the Verkhovna Rada of Ukraine can change the legal status of this composition of the government from “acting” to having the fully-fledged constitutional status of the Cabinet of Ministers of Ukraine, this being by going through the entire procedure stipulated by the Constitution of Ukraine for appointing a new Cabinet of Ministers of Ukraine.  However it is impossible to do this legitimately in the circumstances following the coming into force on 1 January 2006 of the Law of Ukraine “On introducing amendments to the Constitution of Ukraine” from 8 December 2004  and will not be possible until the new Verkhovna Rada of Ukraine, elected in 2006, takes office, since the President of Ukraine no longer has the relevant powers, and the Verkhovna Rada of Ukraine has not yet received them.

To make these legal nuances more accessible to the wider audience, one can draw an analogy between the processes of the dismissal of the government and the dissolution of marriage ties. It is clear to all of us that from the moment that the marriage between husband and wife is dissolved in accordance with legally established procedure, the family [that is, of husband and wife – translator] legally ceases to exist And in order for the family to be established again, what is needed is not a change of the decision to end the marriage (on one’s own private initiative this is not possible at all to achieve legitimately, but rather the entire procedure for registering the marriage in the appropriate State bodies.

The members of the Cabinet of Ministers of Ukraine will thus be “acting ministers” under the newly-elected Verkhovna Rada of Ukraine forms a new government or until the Constitutional Court of Ukraine declares the the Resolution of the Verkhovna Rada of Ukraine “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” № 3295-ІV from10 January 2006 to have been unconstitutional.   

Comments from Prava Ludyny

In offering this article to the wider public for discussion, we would like to express our disagreement with the main thesis presented regarding the impossibility of Parliament’s revoking its Resolution on the dismissal of the Government.  In our opinion, Parliament can revoke its Resolution since it was passed with infringements of the procedure for the dismissal of the government stipulated by the Constitution, which Parliament was well aware of.  The presence of such infringements was convincingly demonstrated by these very authors in another recently published article (cf. the link above).  We can provide other examples to illustrate our point of disagreement. Take, for example, a decision made about the granting of citizenship when it later transpires that the documents submitted were forged.  Is it really impossible to revoke the decision granting citizenship?  Or where a judge has passed verdict, and then later it becomes clear that the witnesses gave false testimony, and the verdict needs to be annulled.  Should the verdict then remain in force?  The infringement of the procedure for taking a decision should be grounds for revoking the said decision. Thus, Parliament can indeed not revoke a legal resolution on the dismissal of the government – here we would be able to concur with the authors, nonetheless it can revoke its own illegal resolution.

The Editorial Board

During the period of existence of the immunity of deputies of local councils, prosecutors of all levels have sent to village, settlement, town, district and regional councils 514 appeals on bringing of people’s deputies to criminal responsibility. 73 of these appeals have been satisfied, 326 – rejected, the rest are considered now. In particular, the local councils of the Dnepropetrovsk region rejected 30 appeals out of 37; 22 out of 29 appeals were rejected in the Sumy region and only 3 were satisfied. 14 appeals out of 16 presented to the organs of local self-government of the Ternopil region were rejected too. Not a single consent to bring the deputies of local councils to criminal responsibility was given in the Volyn, Donetsk, Nikolayev, Odessa and Khmelnitskiy regions.

We want to remind that on 6 October of the current year President of Ukraine Viktor Yushchenko signed the Law of Ukraine “On introduction of changes into the Law of Ukraine “On status of deputies of local councils””. The Law envisages the establishment of special order of bringing to criminal and administrative responsibility of deputies of local councils. This order presupposes preliminary consent of the corresponding local council concerning application to the deputy of the preventive measures in the form of written undertaking not to leave a place of residence or taking into custody in connection with investigation of criminal case, as well as the measures of administrative punishment.

The Law also regulates the order of consideration by the local councils of the question about the consent to bringing of deputies to criminal or administrative responsibility. In particular, it is stated that the appeal should be submitted by a prosecutor of corresponding level to the local council before bringing of accusation against a deputy, or issuing of the arrest sanction, or direction of the case on administrative offence to court.

According to the Law, the council considers prosecutor’s appeal within a month, takes the motivated decision and, not later than during three days, informs the prosecutor about the decision. The deputy has the right to take part in consideration by the council of the question about his immunity.

The events of 10 January 2006 when the Verkhovna Rada of Ukraine adopted Resolution No. 3295-IV “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” has elicited a whole range of varying assessments and commentaries, very often contradictory and here and there even mutually exclusive. Given the particular immediate relevance for both the State and for all Ukrainian society of the issue of the dismissal of the Cabinet of Ministers of Ukraine particularly considering that the amendments to the Constitution of Ukraine (which include new means of regulating the procedure for dismissal and formation of a new government) came into effect on 1 January 2006, it is important to carry out an impartial constitutional and legal analysis of both the procedure and the grounds for adopting the above-mentioned Parliamentary Resolution.

1  In the Constitution of Ukraine the issue of the early termination of the powers of the Ukrainian Cabinet of Ministers is addressed in only three places: In Part 1 of Article  85, Point 12 which includes among the powers of the Verkhovna Rada of Ukraine “deciding on questions involving the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” (here and later highlighting by the authors); Article 87 which establishes the procedure for the dismissal of the Cabinet of Ministers of Ukraine resulting from the adoption by the Verkhovna Rada of Ukraine of a resolution of no confidence in the  Cabinet of Ministers of Ukraine;  Article 115 which provides a comprehensive list of grounds for the early termination of the powers of the Cabinet of Ministers of Ukraine:

a)  The Prime Minister of Ukraine and the other members of the Cabinet of Ministers of Ukraine have the right to submit their resignation to the Verkhovna Rada of Ukraine;

b) The resignation of the Prime Minister of Ukraine shall result in the resignation of the entire Cabinet of Ministers of Ukraine:

c)  The adoption of a resolution of no confidence in the Cabinet of Ministers of Ukraine by the Verkhovna Rada of Ukraine results in the resignation of the Cabinet of Ministers of Ukraine.

It would hardly be controversial to state here that the constitutional provisions which regulate one and the same relations must only be applied in close interconnection and interaction, and not in separate isolation, one from the other.

Point 12 Part 1 of Article 85 of the Constitution of Ukraine in accordance with which the Verkhovna Rada of Ukraine decides on the issue of the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine means only that it is specifically Parliament which takes the ultimate decision with regard to dismissal and only in that instance where all government figures, the Prime Minister of Ukraine or separate members of the Government (even one minister) announce their own resignation (in accordance with Part 2 of Article 115 of the Constitution of Ukraine).

And here in the case where a question arises regarding the unsatisfactory fulfilment by the Government of the powers vested in it or its responsibility – the special procedure set down in Article 87 of the Constitution of Ukraine should be applied. In particular the question of responsibility of the Government (the result of the review of which may lead to the adoption of a resolution of no confidence in the Government which should then result in its dismissal can be raised either at the initiative of the President of Ukraine or of no less than one hundred and fifty State Deputies of Ukraine.

The fact that in order to dismiss the Government, the Verkhovna Rada made use of the powers stipulated in Point 12, Part 1 of Article 85 of the Constitution of Ukraine means in practice a virtually absolute blocking of the force of Article 87 of the same Constitution.   Under such application of Point 12, Part 1 of Article 85 of the Constitution of Ukraine the provisions set down in Article 87 off the Main Law lose any sense whatsoever, since the Parliament is able to easily bypass this specially set down procedure for the early termination of the Government’s powers at the initiative of Parliament which is allowed for by the Constitution of Ukraine for the purpose of safeguarding the stability of the activity of the Government and avoiding artificially created government crises.

The reference made by the Verkhovna Rada of Ukraine to Point 12, Part 1 of Article 85 of the Constitution of Ukraine was explained purely by the circumstance that there had been no prior suggestion by the President of Ukraine, nor any previous submission by 150 State Deputies regarding a review of the question of the Government’s responsibility.

Part 2 of Article 19 of the Ukrainian Constitution states that “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”.  This constitutional provision obliges those vested with State power and authority, which includes the Ukrainian Verkhovna Rada, to act only in accordance with the Constitution and legislation of Ukraine.  Yet by adopting the Resolution regarding dismissal, the Ukrainian Parliament breached the constitutionally established procedure for early termination of the Government’s powers.

It is worth noting that the above-outlined powers were removed from the competence of the President of Ukraine and mechanically (without appropriate adaptation) passed to the competence of the Verkhovna Rada of Ukraine by the Law of Ukraine “On introducing amendments to the Constitution of Ukraine” from 8 December 2004.  This yet again demonstrates the inadequacy of the constitutional reform as a whole and the lack of coordination of the constitutional amendments introduced.

2. A comprehensive analysis of the content of the section setting out reasons of the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January 2006 suggests that the actual grounds for the adoption of the parliamentary decision regarding the dismissal of the Government were that the latter’s work was deemed unsatisfactory. In other words Parliament de facto concluded that the Government had not fulfilled its duties appropriately and expressed a vote of no confidence, while de jure it dismissed the Government without a formal resolution of no confidence.

We consider that under such circumstances the Verkhovna Rada of Ukraine did not have the right to adopt the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January 2006 citing Point 12, Part 1 of Article 85 of the Constitution of Ukraine.

3. At the same time, as of the present day, from a legal point of view, the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January is subject to unconditional fulfilment from the moment it comes into force.

Any decision declaring the Resolution in contravention of the Constitution (declaring it unconstitutional) on the basis of infringements of the procedure envisaged by the Constitution of Ukraine for its review and adoption  may only be taken by the Constitutional Court of Ukraine. Until such a judgement is issued by the Constitutional Court of Ukraine no other body can revoke the Resolution adopted by the Verkhovna Rada of Ukraine on 10 January 2006, declare it unconstitutional, ignore it or call for it to be ignored. 

The lack of a constitutionally established number of judges in the Constitutional Court of Ukraine does not constitute grounds for its functions being taken over by another State body or official.

Therefore, in accordance with Part 4 of Article 115 of the Constitution of Ukraine the Cabinet of Ministers of Ukraine continues to exercise its powers (will “fulfil its duties”) until the formation by the Verkhovna Rada of Ukraine of a new Government, or until the declaration of the Resolution “On the dismissal of the Prime Minister of Ukraine and the members of the Cabinet of Ministers of Ukraine” No. 3295-IV from 10 January 2006 unconstitutional by the Constitutional Court of Ukraine.

4. An analysis of the Constitution of Ukraine in the version which came into force on 1 January 2006 makes it possible to conclude that before a newly elected Verkhovna Rada takes office in 2006, neither the President of Ukraine nor Parliament are about to initiate the formation of a new government.

Part 8 of Article 83 of the Constitution of Ukraine, in accordance with which a coalition of factions in the Verkhovna Rada submits proposals to the President of Ukraine regarding a candidate for the office of Prime Minister of Ukraine, and also presents suggestions to Parliament regarding candidates for the Cabinet of Ministers of Ukraine (except for the Ministers of Defence and of Foreign Affairs, where the President of Ukraine submits proposals), has not yet come into force.

Yet at the same time the President of Ukraine has, since 1 January 2006, already lost his powers with regard to appointing with the consent of the Verkhovna Rada of Ukraine the Prime Minister of Ukraine (Point 9, Part 1 of Article 106 of the Constitution of Ukraine in the edition from 28 June 1996) and to appointing on the submission of the Prime Minister of Ukraine members of the Cabinet of Ministers of Ukraine (Point 10 Part 1 of Article 106 in the same edition). 

Thus, according to the current version of the Main Law of Ukraine the formation of a new Cabinet of Ministers of Ukraine (with the exceptions of the Ministers of Defence and of Foreign Affairs) before the Verkhovna Rada of Ukraine elected in 2006 take office is impossible.  

Until such time the Constitution of Ukraine envisages the possibility of the legitimate appointment of only two ministers - of defence and of foreign affairs.  The President of Ukraine as of the present time has the constitutional right to present a submission to the Verkhovna Rada of Ukraine regarding the appointment of the Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine (Point 10 Part 1 of Article 106 of the Constitution of Ukraine in the version which came into effect on 1 January 2006).  The Verkhovna Rada of Ukraine as of the present time also has the constitutional right to appoint, on the submission of the President of Ukraine the Minister of Defence of Ukraine and the Minister of Foreign Affairs of Ukraine (Point 12 Part 1 of Article 85 of the Constitution of Ukraine in the version which has been in force since 1 January 2006).

Commentary from KHPG  While agreeing with the conclusions of these experts, we nonetheless have a somewhat different approach to the coming into effect of the amendments to the Constitution, adopted on 8 December 2004.  We assert that since these amendments were passed in flagrant violation of the constitutional procedure for introducing amendments to the Constitution, they cannot a priori be considered to have legal force.  One cannot build anything on a rotten foundation. In our opinion, the Constitutional Court should definitely review the question of whether the “package” vote taken on 8 December 2004 complied with the norms of Section XIII of the Constitution. We consider that the only decision possible would be to declare the results of the voting of 8 December invalid. Otherwise the constitutional norm according to which Ukraine is a law-based country loses any meaning.

The Editorial Council

Certain executive bodies in a democratic country fulfil specific functions requiring independence, impartiality and objectivity. There are particular demands set down in legislation regarding the incompatibility of these positions of office with commercial or political activity. Individuals holding such posts, therefore, having become candidates for the office of State Deputy of Ukraine, must go on leave for the period of the elections, and in certain cases should entirely resign from their post.  Participation in elections implies engagement in the political struggle for power and involves advocating solely one’s own position.

With regard to judges

The regulation requiring resignation from office applies to all judges who have decided to ballot for the office of State Deputy of Ukraine. Part two of Article 127 of the Constitution of Ukraine and Article 5 of the Law of Ukraine “On the status of judges” prohibit judges from taking part in “any political activity”.  As well as being an infringement of general constitutional requirements regarding the status of judges, such activity as a whole jeopardizes the democratic nature of the elections since it effectively deprives the country of control by the judiciary over any electoral violations during the elections.  The participation of a judge, and still more so of the chairperson of a court who in Ukraine holds wide-reaching administrative powers, sheds doubt upon the independence and objectivity of the judicial process and of any specific court, without which the control of the judiciary loses any reality. In addition to all else, this infringes Article 129 of the Constitution of Ukraine and Article 6 of the European Convention on Human Rights and Fundamental Freedoms guaranteeing the right to a fair trial in the case of violations of human rights and fundamental freedoms.

Therefore, given their political activity, the following judges who have registered as candidates for State Deputy of Ukraine are called upon to resign:

1)  V.T. Malyarenko, Chairperson of the Supreme Court of Ukraine, - registered as No. 5 on the candidate list[1] for the Lytvyn People’s Bloc;

2)  D.M. Prytyka, Chairperson of the Higher Economic Court, - No. 68 on the candidate list for the Party of Regions (Yanukovych’s Party);

3) L. I. Fesenko, Chairperson of the Appeal Court of the Luhansk region, - No. 137 on the candidate list for the Party of Regions;

4) I. H. Kalyetnik, Judge of the Dniprovsky District Court in Kyiv, - No. 11 on the candidate list of the Nataliya Vitrenko Bloc “People’s Opposition”;

5)  V. P. Shevchenko, Chairperson of the Military Appeal Court of the Central Region of Ukraine, - No. 7 on the candidate list for the Election Bloc of the political parties of Boris Oliynyk and Mykhailo Syrota;

6)  L. D. Podkolzina, Judge of the Economic Court of the Donetsk Region, - No. 65 on the candidate list of the Non-affiliated Election Bloc “Sontse” [“Sun”].

With regard to the Human Rights Ombudsperson

The office of Human Rights Representative for the Verkhovna Rada (Human Rights Ombudsperson) requires impartiality and independence, as is directly stipulated in Article 7 of the Law of Ukraine “On the National Human Rights Ombudsperson of Ukraine” . Involvement by the Ombudsperson in political activity is a manifest violation of these principles.  Moreover, open campaigning for one political force creates dependence on the said force and renders the person unable in the future to defend human rights impartially. Therefore, in order to maintain the authority of this office, the National Human Rights Ombudsperson of Ukraine, Nina Karpachova, should also submit her resignation.

With regard to members of the Central Election Commission

In accordance with Part Four of Article 7 of the Law of Ukraine “On the Central Election Commission” (CEC), a member of the CEC does not have the right to stand for election as State Deputy of Ukraine.  CEC member, R. P. Knyazevych who is registered as No. 9 on the candidate list of the bloc “Nasha Ukraina” [“Our Ukraine”, Yushchenko’s bloc] should accordingly resign from his post.

With regard to employees of law enforcement bodies

The holding of office in law enforcement bodies, in particular, those of the Ministry of Internal Affairs and of the Prosecutor’s Office, is also incompatible with political activity. Although there is no direct prohibition on such activity, it nevertheless follows from the requirement to show independence and objectivity in their dealings, and in order to ensure equal defence of violated rights and the holding of democratic elections, the following people should take leave for the period of the elections:

1) Y. K. Varava, Head of the Kryvorizky District Department of the Administration of the Ministry of Internal Affairs of Ukraine in the Dnipropetrovsk region, who is No. 144 on the candidate list of the Lytvyn People’s Bloc;

2) K. O. Kolesnyk, Aide to the Prosecutor General of Ukraine on special instructions of the Prosecutor General of Ukraine, –  No. 419 on the candidate list of the Lytvyn People’s Bloc;

3) A. V. Pshonka, Senior Aide to the Prosecutor of the Kirovsky District of Donetsk – No. 128 on the candidate list of the Party of Regions;

4) L. S. Porechkina, Deputy of the Minister of Internal Affairs of Ukraine – No. 128 on the candidate list of the Bloc “Nasha Ukraina”;

5)  I. A. Biletsky, Head of the Administration of the Prosecutor General of Ukraine – No. 172 on the candidate list of Yulia Tymoshenko’s Bloc;

6)  V. P. Topcheyeva, Head of the Department of the Prosecutor’s Office of the Kharkiv Region – No. 64 on the candidate list of Lazarenko’s Bloc; 

7)  O. M. Bondarenko, Senior Prosecutor of the Department of the Prosecutor General of Ukraine – No. 33 on the candidate list of the Bloc “Patriots of Ukraine”;

8)  O. V. Sirota, Aide to the Minister of Internal Affairs in the Kharkiv Region – No. 28 on the candidate list of the Party of Patriotic Forces of Ukraine;

9)  Y. O. Stebivko, Senior Aide to the Prosecutor of the Chornomorsky District Prosecutor’s Office – No. 50 on the candidate list of the Party of Putin’s Policy.

With regard to members of the National Council of Ukraine on Television and Radio Broadcasting

Doubts must also be raised concerning objectivity and impartiality with regard to the activities of the National Council of Ukraine on Television and Radio Broadcasting as a result of the participation of members of the latter in the elections. The National Council effectively controls political campaigning on television and has serious influence on the activities of all television companies in Ukraine which provide the main outlet for campaigning. The same applies to representatives of the National Council in the regions.

We therefore call upon the following officials to go on leave for the period of the elections:

1) V. F. Shevchenko, Head of the National Council of Ukraine on Television and Radio Broadcasting  – 28 on the candidate list of the Ukrainian People’s Bloc of Kostenko and Plyushch;

2) V. I. Ponedilko, member of the National Council of Ukraine on Television and Radio Broadcasting – No. 98 on the candidate list of the Communist Party of Ukraine;

3) L. Y. Bakalenko, Representative of the National Council of Ukraine on Television and Radio Broadcasting in the Kirovohrad Region – No. 90 on the candidate list of the Party for Environmental Rescue “EKO +25%».

With regard to journalists

In keeping with both Ukrainian and international standards concerning freedom of speech, journalists and the mass media should present information objectively and without bias.  It is clear that a journalist or his / her manager when preparing or imparting news present it in a certain style with the points relating to this highlighted.  As a consequence, when they are politically engaged, this is also reflected in their news which runs counter to the functions of the press in a democratic society.  Under such circumstances and considering the extraordinary influence the mass media exerts on the holding of fair and democratic elections, we demand that journalists and their managers who are involved in preparing and presenting the news, while also standing for office as State Deputies as candidates of specific politic parties, suspend their professional role for the period of the elections:

We call on the following people to take leave over the election period:

1) O. V. Herasymyuk, General Producer of the Television and Radio Company “Studio «1+1» - No. 4 on the candidate list of the Bloc “Nasha Ukraina”;

2) Y. V. Bohutsky, General Director of the International television and radio company ICTV – No. 17 on the candidate list of the Civic Bloc PORA – PRP [Party of Reform and Order];

3) Y. V. Batayeva, General Producer of the public corporation “Telekanal “TONIS”, - No. 25 on the candidate list of the Green Party of Ukraine;

4)  I. M. Tolstykh, Vice President of the National Television Company of Ukraine – No. 73 on the candidate list of the Party for Environmental Rescue “EKO +25%»;

5) H. A. Nyzkodubova, journalist for the information agency “Ukrainski novyny” [“Ukrainian news”, - No. 177 on the candidate list of the Ukrainian People’s Bloc of Kostenko and Plyushch;

6)  V. I. Hrabovenko, correspondent for the information agency “Interfax – Ukraine” – No. 227 on the candidate list of the Lytvyn People’s Bloc;

7)  V. Y. Boiko, General Director of the Zhytomyr Region State Television and Radio Company – No. 324 on the candidate list of the Lytvyn People’s Bloc;

8) O. M. Babiy, General Director of the Ivano-Frankivsk regional television “Halychyna”, - No. 193 on the candidate list of the Bloc “Nasha Ukraina”;

9) O. P. Muts, Chief Editor of the newspaper “Reporter” – No. 159 on the candidate list of the Party of Regions;

10) N. A. Mishcherska, observer for the creative production association “Novyny” [“News”] of the National Television Company of Ukraine, - No. 5 on the candidate list for the party “Zelena Planeta” [“Green Planet”]; .

11) S. A. Smirnov, Deputy Chief Editor of the newspaper “Lvivska gazeta” – No. 131 on the candidate list of the Civic Bloc PORA – PRP;

12) L. F. Kolayenko, Senior Editor of the State Television and Radio Company «Krym» [“Crimea”], –  No. 77 on the candidate list of the Opposition bloc “Ne tak” [“Not yes”];

13) other journalists and editors of media outlets involved in preparing and providing news.

With regard to heads and lectures of higher educational institutions

Among registered candidates for the office of State Deputy there are 49 heads (rectors, pro-rectors, etc) of Ukrainian higher educational institutions, as well as 165 lecturers from these institutions (including professors and associate professors).  The experience of previous election campaigns has shown that campaigning and voting in educational institutions often involve pressure being placed, with candidates making use of their official position.  Among other things, this has been demonstrated in discrimination against students who espouse other political views. We would therefore call on heads and lectures of higher educational institutions who are standing as candidates for State Deputy of Ukraine to suspend their professional activity for the period of the election and to not exert pressure on their students.

We consider that the participation of all the above-mentioned individuals in the election campaign while continuing to fulfil their professional duties is incompatible with the principles of democracy and the rule of law, and presents a serious threat to the achievement of fair and democratic elections.

Yevhen Zakharov,

Chairperson of the Board of the Ukrainian Helsinki Human Rights Union (UHHRU)

Volodymyr Yavorsky

Executive Director of UHHRU

[1]  The elections of 2006 will be the first to be  totally based on a proportional representation and party-list system.  Position on the list directly reflects the likelihood of becoming a State Deputy (translator’s note)

The campaign against corruption and offences by officials in the Chernihiv prosecutor’s office and police department looks rather strange. This is confirmed by the story of police lieutenant Taras Shved, who worked, till recently, as a district officer of the Ripki district department of the Ministry of Internal Affairs.

A reasonably high salary and numerous privileges did not satisfy lieutenant Shved. His district was lucrative – there were many persons, who produced homemade vodka (which is not encouraged by Ukrainian laws). So, he started to collect “contributions” from these distillers under the guise of administrative fines (50 UH, 100 UH and more). And now and then he appropriated the confiscated product rather than destroying it. However, as sometimes happens, he was taken in the act. On 6 December 2005 the Ripki district court imposed a fine on him: the dishonest officer had to pay 450 UH  (although, I believe, he got much more money from his “clients”). Yet, the work “punishment” was “extremely severe”: he was transferred from the district centre to the regional centre to the post of a detective of the department of criminal police in charge of minors of the Desnianskiy district of Chernihiv.

After the fiasco in Ripki police lieutenant T. Shved demonstrated, in Chernihiv, another talent: he brutally beat up a young lad in the Desniansky district station. The lad’s only “crime” had been to try to buy a student concession ticket using a document which had expired. The youth was taken to the district station (by the way, for the first time in his life) by three workers of Chernihiv trolleybus department. There, in the presence of these workers, lieutenant Shved beat the boy on his head until the victim collapsed.

It should be noted that the department of internal security of the Ministry of Internal Affairs thoroughly investigated this incident, collected all proofs and passed the case to the regional prosecutor’s office for consideration. However, despite the presence of irrefutable proofs of the service crime committed by Taras Shved, the prosecutor’s office is dragging out consideration of the case for reasons that are unclear, and this lieutenant continues to “reform” minors at his post. One can only guess why the case is being considered for such a long time: most probably, it is done with assistance of “high connections” of his relatives – Shved’s father is a journalist and a former editor-in-chief of the newspaper “Chernihivski Vidomosti”, and his wife is also a well-known figure in journalists’ circles.

Meanwhile, I imagine, lieutenant Shved will try to intimidate witnesses and to sob over his own underage child, which he has already done both in the case with homemade vodka and in the recent case of beating up the youth.

Certainly, one can feel pity for the child of T. Shved, but who will pity our children who can become victims of such policeman with sadistic inclinations? Maybe the officials of the Chernihiv regional police department and regional prosecutor’s office are waiting until this “Makarenko” beats up some child to death?

We urge the Ministry of Internal Affairs and the General prosecutor to please turn their  attention to the situation in the Chernihiv police and the Chernihiv prosecutor’s office.

16 January 2006

Printed from Maidan

Again I have to write about deaths of young healthy men as a result of violent actions. And again I have to state that state officials do their best to falsify and conceal the details of these murders in order to evade responsibility, and that nobody knows how these stories will end, since we have no tools for influencing the course of investigation. Dear readers, decide by yourselves, whether these sad conclusions are grounded or not...
In advance I want to excuse for medical details and long quotations from documents, but it is impossible there to go without them.

“Started to beat on the head with hilt”?

This tragic story began late at night on 7 December. Here is a citation from the report of 11 December 2005 signed by police lieutenant colonel S. Onoprienko, a deputy head of the Kharkiv regional department of the Ministry of Interior.

“On 7 December 2005, between 11 and 12 p.m., detectives of the Chervonozavodskiy district police station captain K. Mikhaylov, senior lieutenant A. Padalka and lieutenant S. Koliadin were in the club “E-2” situated in Gritsevtsa Street in Kharkiv. At midnight Koliadin went outside to find a taxi; Mikhaylov and Padalka remained in the club. Near the café door two unknown men approached Koliadin and demanded to give them his personal things. The lieutenant refused. After that one of the strangers, high man with long hair, hit him with fist in the chest. S. Koliadin introduced himself as a police officer, but the attacker drew a pneumatic gun, shot for several times, and then started to beat the policeman on the head with the gun hilt. As a result, Koliadin fell down and started to call for help. The strangers continued to beat him with feet and gun. At that time Mikhaylov and Padalka ran up to the place and the strangers escaped; at that one of the attackers fell. Then two more men came, who said that they were the witnesses of beating of S. Koliadin, and proposed help. Later it was established that their names were S. Zhila and S. Morskiy. Zhila drove, by his own car, Koliadin, Mikhaylov, Padalka and Morskiy to the Chervonozavodskiy district station. From the station S. Koliadin was transported to the 4^th town hospital by an ambulance. He had the compound wound of the parietal region. K. Mikhaylov, together with A. Padalka and S. Zhila returned to the place of event for conduction of the operative-detective activities. In the course of these actions citizen O. Dunich was detained at a market in Gritsevtsa Street, who was identified by S. Zhila as the person, which had beaten S. Koliadin with a gun. Dunich was conveyed to the Chervonozavodskiy station and registered in the book of visitors at 4 a.m., 8 December 2005. During the examination of Dunich’s clothes the law-enforcers found and seized a pneumatic gun. Senior lieutenant G. Snurnikov compiled the protocol of requisitioning of the gun, but Dunich categorically refused to sign the protocol in presence of witnesses S. Zhila and S. Morskiy. Besides, O. Dunich refused to give any explanations.

O. Dunich complained about poor health, and on 8 December 2005, in the building of the Chervonozavodskiy station, forensic expert E. Danilenko carried out his medical examination. The expert found on Dunich’s body numerous haematomas and bruises, which were classified as trivial injuries and had been inflicted not less than 3 days before the examination (act No. 4414C of 9 December 2005). Since the state of Dunich’s health was deteriorating, an ambulance was called to him. The doctors took Dunich to the 4^th hospital, where he died on 9 December 2005 at noon.

Mikhaylov, Padalka and Koliadin categorically denied the fact of application to Dunich of force and physical influence; O. Dunich, for his turn, did not complain, during the medical expertise, against actions of the policemen”.

Let us read act No. 4414 of forensic medical examination of Oleg Dunich, born in 1976, “who was conveyed to the Chervonozavodskiy district police station on 8 December 2005 with bodily injuries”. Forensic medical expert E. Danilenko presents the situation and the results of the medical examination as follows:

“The examined declared that he would not explain where he had got the bodily injuries. However, he informed that he had undergone the surgical operation connected with scull trepanation. Expressed the complaints about headache, vertigo, gleams before the eyes. Methods of psychological and physical influence were not applied.

It should be noted that the examined smelt of alcohol, he also said that he had fallen for several times.

The examined told that he was taken to the Chervonozavodskiy district station at about 4 a.m. by police officers on the suspicion of commitment of a crime…

… I have come to the conclusion that the examined has bruises on his face, body and extremities”.

On 12 December Yu. Dmitrenko, the head of branch No. 1 of the Kharkiv regional bureau of forensic medical expertise, wrote in his letter to A. Barkov, the head of the Kharkiv regional department of internal security:

“In response to your oral request I inform that on 8 December 2005, at 8:40 a.m., citizen Oleg Dunich was transported by ambulance МСП-315 to the emergency hospital from the Chervonozavodskiy district police station with the diagnosis: closed cerebral trauma, intracranial hemorrhage, brain cerebral edema, coma, blunt trauma of thorax, fracture of right ribs, blunt trauma of abdomen, aspiration with vomit masses. In spite of medical measures, the state of the patient remained extremely grave, and on 9 December 2005, at 11:30, a.m. the arrest of effective circulation was fixed. Reanimation measures were unsuccessful. At 12:00 the biological death was verified with the diagnosis: serious cerebral brain trauma, subdural hematoma of left hemisphere, contusion-crushing of the basilar areas of left temporal lobe, edema-dislocation of cerebral brain, multiple injuries of head, face, thorax and extremities. At the moment of arrival of citizen O. Dunich to the hospital alcohol was not revealed in his organism.

Preliminary results: during examination of the corpse of citizen O. Dunich, the expert made the conclusion about grave cerebral brain trauma, which caused death, multiple bruises on the body and extremities, fracture of the thyroid cartilage, straight fractures of several ribs on the right, lung contusion.

The reason of death of citizen O. Dunich: grave cerebral brain trauma.”

So, when and where Dunich obtained this grave cerebral brain trauma incompatible with life?

It is obvious that two acts of forensic medical expertise do not agree with each other. In my opinion, there are two versions: either the first act of expertise has been falsified (I want to point out that expert Danilenko writes that “the examined smelt of alcohol”, and the act of post-mortem expertise reads that alcohol was not revealed in Dunich’s organism), or Dunich obtained this trauma after the first expertise. The details of this case looked rather strangely: why Dunich was detained at night at a market and when the first expertise was made in the building of the district station, if he was transported to the station at 4:00 and in 8:40 he arrived to the hospital? At least 30 minutes are needed to drive from the Chervonozavodskiy station to the hospital. So, the expertise was conducted at night or early in the morning? But why medical expert Danilenko was at work at such time? However, in any case it seems that the trauma, which caused Dunich’s death, had been injured by police officers. It is absurdly to allege that he, having such trauma obtained three days before the considered events, attacked a policeman and beat his with a gun.

According to information received, three mentioned officers left the service at once, head of the Chervonozavodskiy district station Tokarev was suspended from his post, and the criminal case was started in connection with Dunich’s death. The investigation is carried out, but I reckon that this case is not very complicated, if there is the real wish to detect it.

«Cause of death was not ascertained»

This very phrase is written in item 9 of medical certificate No. 3033 of 21 December 2005 issued in connection with death of Armen Melkonian, which occurred on 17 December 2005 in investigation isolation center No. 27 (Kharkiv). This cautious conclusion was made by morbid anatomist A. Linnik, although in item 11 he wrote that the death was directly caused by “asphyxia” and “closure of respiratory tract by vomit masses”, and that there was another serious disease – “closed cerebral brain trauma”. So, how it happened that the young healthy 21-years-old boy died in the investigation center? Head of the center Sergiy Tkachenko alleges that the death of Melkonian has been natural, writes journalist Ganna Silaeva in the newspaper “Objektiv-NO”. By words of Tkachenko, when Melkonian’s state deteriorated, the doctor of the investigation center called an ambulance, and the young man died in presence of doctors. Yet, medics could not confirm this information. The doctor on duty did not found in the database either calling of ambulance to the isolation center or the surname “Melkonian”. There are no records in the column “death”: either “before arrival” or in presence”.

Relatives of Melkonian turned to me for assistance in the evening of 21 December. I was in Kyiv then and advised them by phone to insist on institution of criminal case after the fact of death and conduction of forensic medical expertise, and to postpone the funeral. My suspicions were arisen by the fact that the autopsy was made only on the fifth day after the death and that the prosecutor’s office of the Zhovtnevy district of Kharkiv did not institute the criminal case in connection with Melkonian’s death, especially after such medical conclusion. On 22 December the prosecutor’s office did not start the case, but insisted on funeral. I involved head of the regional state administration and his deputy in questions of cooperation with law-enforcing organs into this problem and achieved that the criminal case was started and forensic medical expertise was carried out. On 23 December the case was instituted, and deputy head of the regional state administration Sergiy Storozhenko told me by phone that the postmortem examination showed that the death had been violent. It is interesting that on 22 December we phoned to the Department of penitentiaries and asked why the autopsy was mage only on the fifth day. They answered that this was the repeated autopsy. And where is the act about the results of the first autopsy? Nobody knows. By statement of the advocate, the investigating officer still has no act of forensic medical expertise even today, 14 January. Well, this investigation is not very fast …

The penitentiary system is even more closed than police, and it is impossible to learn what happens inside it. A person, which has got in this system, is absolutely dependent on administration and has no opportunity to complain against its actions. All complaints against the actions of administration of penitentiary establishments or investigation isolation centers, which we received, were sent past censorship…

From “Prava Ludyny” Editorial Board: “Koval’s case” is the case involving torture by the police.  More details about the case can be found in our bulletin for November 2005.

On 30 December 2005 a judge of the Desnyanskiy Dstrict Court in Chernihiv issued a judgment in the claim brought by the head of the Chernihiv town police department Eduard Alyokhin against pensioner Mykhaylo Koval. One can say without exaggeration that this is a high-quality judgment from the legal point of view: it is fair in essence and perfect in substance and form. After the analysis of the evidence, the court refused to satisfy the claim of Eduard Alyokhin, referring not only to domestic laws, but also to international legal acts, in particular, resolutions of the European Court of Human Rights and the UNO Convention against torture, which form part of Ukrainian legislation. Mykhaylo Koval was represented by Oleksandr Trofimov, a lawyer of the Chernihiv Civic Committee for the Protection of Human Rights.

“Koval’s case” is a case involving torture in police custody. It has already gone on for five years. The case is closed from time to time and opened again. At the present time the pre-trial investigation has not been concluded. During this time support has been offered to Mykhaylo Koval not only by Ukrainian human rights organizations, but also by international organizations, in particular, the international non-governmental organization “Amnesty International”.

At an “Amnesty International” press conference which was held on 27 September 2005 in Kyiv, the organization’s annual report on torture in Ukraine was made public. Mykhaylo Koval was invited to take part in this press conference and gave interviews to several nationwide television channels.  Police colonel Eduard Alyokhin, the present head of the Chernihiv town police department, took offence at statements of M. Koval and brought a suit against him.

Referring to norms of domestic and international legislation, the court explained that according to Article 1 of the UNO Convention against torture, Mr. Koval had sufficient grounds for considering that he had been a victim of torture. In the Judgement, the court quoted Koval’s explanations about his interview given within the framework of international discussion on the use of torture by policemen, where he had expressed categorical aversion to such practice.

We applaud the High Court for professionalism, fairness and independence demonstrated by this judgement which has upheld the individual’s right to his or her own opinion. The decision has been taken with the application of the three-stage test, when the public importance of the considered question is higher than the probable unpleasant consequences for an individual. Ultimately, this decision teaches to distinguish between “evaluative judgments” and “statement about a fact” on the basis of the adduced grounds.

We would like to believe that the logic of taking decisions by the European Court of human rights has already been mastered by the majority of judges of the Chernihiv region, at least by the judges who, over 2 years, have taken part in the seminars “Introduction of the norms of European law in legal proceedings in Ukraine”. These seminars were held by the Appeal court of the Chernihiv region jointly with the Chernihiv Civic Committee for the Protection of Human Rights.

In what follows we are quoting the text of the Judgement.

Desnyanskiy Dstrict Court in Chernihiv

JUDGEMENT

In the name of Ukraine

30 December 2005, Chernihiv

The Desnyanskiy Dstrict Court in Chernihiv consisting of: the chairman – Judge V. Koverznev, secretary O. Balaba,

with the participation of: advocate L. Pidgorna, defendant, his representative advocate O. Trofimov, representative of the second defendant O. Bazika,

has considered in an open court hearing the civil case based on the claim of Eduard Alyokhin against Mykhaylo Koval and the TV studio “Sluzhba informatsii” about protection of honour, dignity and business reputation and

has established:

On 19 October 2005 the claimant turned to the court with a claim against M. Koval and the TV company “NTN”, and asked it:

1) To declare the information about alleged torture of the defendant, which was made public by him on 27 September 2005 during the broadcast by the TV company “NTN” of the TV-feature “Svidok”, as inauthentic and defaming honour, dignity and business reputation;

2) To oblige the defendants to refute the defamatory information by means most close to its distribution, by publication of the judgement part of  the court decision in the same feature or in the series of features at the same time not later than within a month after this judgement comes into effect;

In substantiation of the suit the plaintiff pointed out that on 27 September 2005, in the interview to the journalists of the TV company NTN, the defendant stated that he and his son had been beaten by police officers and called the claimant his torturer. The latter believes that the information spread by the defendant is negative and defamatory of his honour, dignity and business reputation.

At the preliminary court sitting, with the approbation of the parties, the TV studio “Sluzhba informatsii” was named as the second defendant, since the TV company “NTN” was its structural subunit without the status of legal entity and could not take part in the case.

The representative of the plaintiff supported the claim and insisted on its satisfaction.

The defendant rejected the claim and explained that he had given the interview in the framework of international discussion on the use of torture by police officers. Regarding himself as a victim, he expressed categorical aversion to this practice. In talking about what had happened to him, he wanted to turn public attention to the inadmissibility of the holding of state posts by individuals who cover up torture, thus he expressed a value judgment stating that the claimant had been his torturer. Being questioned as a witness, the defendant testified that on 14 August 2001 the plaintiff personally took part in his beating in the building of the Chernihiv town police station.

The representative of the second defendant also rejected the claim and asked that it not be satisfied.

The defendant’s son D. Koval testified that on 14 August 2001, in the building of the Chernihiv town police station, several police officers, in particular the plaintiff, had beaten him and the defendant, inflicting numerous bodily injuries.

The witnesses V. Nazarenko, V. Perepecha and N. Mironova gave similar evidence during questioning.

After listening to the testimony of the parties, the questioning of witnesses and analysis of case material, the court came to the conclusion that the suit should not be satisfied for the following reasons.

On 27 September 2005, at 19:00 and at 00:15, during the broadcasting by the second defendant of the TV-feature “Svidok”, the problem was discussed of the use made by officers of law enforcement bodies of torture in relation to people detained. In his interview the defendant sad that he and his son had been tortured by officers of the above-mentioned police station. As a result of the beating, he suffered concussion and numerous bodily injuries, and his son lost his hearing. At that the defendant pointed out that his torturer had been appointed to the post of head of the police department.

Everything said above is confirmed by the records of the interview (page 5 of the case materials), which are not refuted by the defendants.

Since prosecutor’s office of Chernihiv has started a criminal case No. 75/1665 in relation to the inflicting of bodily injuries to the defendant and his son in compliance with Article 165 part 2 of the Criminal Code of Ukraine (version of 1960), and a pre-trial investigation still underway (page 35 of the materials), the court considers that it is not expedient to give a legal assessment of the testimony of witnesses, because it could negatively influence the course of investigation.

At the same time, the analyzed evidence, in particular: appeals of M. Koval, addressed to the head of the Chernihiv regional department of the Ministry of Interior of 29 March 2004, to the prosecutor’s office of Chernihiv of 20 February 2002 and to the prosecutor of the Chernihiv region of 4 April 2003 (pages 31-33), concerning the personal participation of E. Alyokhin in the beating of Koval, which happened on 14 August 2001 in the building of the Chernihiv town police station, and testimonies of witnesses, reviewed as a whole, suggest that, according to Article 1 of the UNO Convention against torture and other cruel, inhumane or disgracing treatment and punishment of 10 December 1984, the defendant has sufficient reasons to regard himself as a victim of torture.

According to Article 10 of the European Convention for the Protection of Human Rghts and Fundamental Freedoms of 4 November 1950 (the Convention, in what follows), everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In its decision on the case “Handysite vs. United Kingdom” of 2 December 1976 the European Court of Human Rights (the Court, in what follows) stated: “The right to spread information and ideas concerns not only information and ideas that are regarded as positive or are considered as inoffensive and insignificant, but also those that offend and arouse anxiety. These are the demands of pluralism, tolerance and breadth of views, without which the existence of democratic society is impossible”.

In its practices the Court distinguishes between facts and evaluative judgments, since a fact can be proved, and the veracity of an evaluative judgment is not liable to proof. It is impossible to fulfil the demand to prove the veracity of a critical statement; besides, such demand violates the freedom of expression of one’s own opinion, which is a fundamental part of the right protected by Article 10 of the Convention (see the Court decision in the case “Linges vs. Austria” of 18 July 1968).

According to Article 47-1 of the Law of Ukraine “On information”, nobody can be held liable for the expression of value judgments. At that the Law states that value judgments are statements that do not contain factual data.

Since the opinions expressed by the defendant do not contain specific data, they are considered as value judgements, which exclude their refutation and bringing the defendants to answer.

Being guided by Articles 10, 208, 209, 212-215 and 294 of the Civil Procedure Code of Ukraine, Article 1 of the UNO Convention against torture and other cruel, inhumane or disgracing treatment and punishment, Article 10 of the European Convention on protection of human rights and fundamental freedoms, Article 47-1 of the Law of Ukraine “On information”, decision of the European Court in the case “Handysite vs. United Kingdom” of 2 December 1976 and decision of the European Court in the case “Linges vs. Austria” of 18 July 1968, the court

has resolved:

To turn down the claim of Eduard Alyokhin against Mykhaylo Koval and the TV studio “Sluzhba informatsii” concerning protection of honour, dignity and business reputation.

Appeal against the court decision can be lodged to the Appeal court of the Chernihiv region. Notice of appeal against the decision should be submitted within 10 days of the day of its pronouncement, and the appeal complaint – within 20 days after handing of the application. The appeal complaint can be lodged without the advance application about the appeal, if it is submitted within the term established for handing in of the application.

On 3 February the Ukrainian Helsinki Human Rights Union (UHHRU) and the Media Law Institute addressed an appeal to the President of Ukraine asking him to use his power of veto against the Law of Ukraine “On Television and Radio Broadcasting”, passed in its new version by the Verkhovna Rada (Parliament) on 12 January 2006.

A press-release issued by the Press Office of UHHRU states that: “This law does not comply with many international standards and recommendations concerning freedom of speech and regulation of television and radio broadcasting, nor is it in keeping with the positive practice seen in European countries”.

Media experts from both organizations point to significant flaws in this Law:

1.  The Law does not provide a satisfactory definition of owners of television and radio organizations which runs counter to recommendations of the Council of Europe, the EU and the Organization for Security and Co-operation in Europe.  Terminology is used in the Law which makes it impossible to discover who the real owners of the television and radio organizations are, and which allows for the situation to remain unclear leaving the public still in the dark as to who really owns this or that television or radio organization.

2.  Restrictions on the involvement of foreign capital in Ukrainian television and radio organizations are abolished by this Law. There is a strange reference to the Economic Code however the latter does not contain any special norms regarding television and radio broadcasting. There is also a contradictory general provision concerning the prohibition on foreign individuals and legal entities founding Ukrainian TV and radio organizations (Article 12).  In effect, one of the most powerful levers of influence on the public could in the space of a few years end up entirely under the ownership of foreigners, or could continue to be controlled by unidentified individuals via offshore companies.

3.  The Law does not at all regulate the rights of journalists of television and radio organizations as regards collecting and broadcasting information.

4. The principle of licensing is changed by the Law: at the present time the National Television and Radio Broadcasting Council of Ukraine issues licences, this being determined by the fact that television and radio broadcasting organizations use a limited radio frequency resource. Under the new law however the regulatory executive body shall issue a licence for the right to carry out broadcasting in any form, and the law is effectively aimed more at regulating the content of the broadcasting which is entirely out of step with European practice in regulating TV and radio broadcasting and freedom of expression

5. Under this Law (Article 6) television and radio organizations “are obliged to provide information about the position officially published through any means of all political factions represented in State executive bodies”.  This violates the principles of independence of the media and freedom of speech, and of identical and objective coverage of events, as well as of equal access of political factions to the Mass Media. The law also allows for  “motivated” interference by State executive bodies or bodies of local self-government, public associations in the area of professional activity of television and radio organizations, this also contravening standards of journalist and Mass Media independence.

6. In addition, the Law effectively bans political advertising by establishing the general prohibition on “any direct or indirect financing of television and radio organizations by political parties, political figures …” (Part 3 of Article 19).

7. The Law contains a considerable number of terminological inaccuracies and discrepancies, as well as of value concepts a broad interpretation of which could lead to an unwarranted restriction on freedom of expression  For example, the Law prohibits “unwarranted display of violence” (Article 6), “scenes which could be terrifying” or “scenes appealing to sexual instincts” (Part 5 of Article 28), yet a broad application of these provisions could lead to an unjustified ban on 70-90 % of the programs of television and radio broadcasting organizations and to corruption of the entire sector.

8.  There are a large number of contradictory provisions in the Law concerning the procedure for licensing which would allow the National Television and Radio Broadcasting Council to sift out “unneeded” television and radio broadcasting organizations.  For example, the application for a licence needs to indicate “the number of households on the foreseen territory where the programs will be transmitted” (this is particularly equivocal in the case of those TV and radio broadcasting organizations applying for a licence for the first time).  Where inaccurate information is submitted, the application will be ignored.  Yet how can each TV and radio broadcasting organization know the number of households in a given populated area?  And what difference does it make from the point of view of the licence?  These and other provisions of the Law encourage corruption and deprive the licensing procedure of transparency.

9. The Law sets out unclear provisions concerning tender guarantees since its non-payment does not constitute grounds for being excluded from the tender nor for being refused a licence.

10. The Law unjustifiably provides for extremely wide grounds for revoking a licence with court sanction. This can be, for example, where there has been a refusal by the licence-holder to allow employees of the National Council to undertake a check in accordance with demands set down in Ukrainian legislation. Not even the Tax Administration can have such sanctions applied to taxpayers who impede their checks. Not to speak of the fact that there is no law in the country defining the grounds, the procedure and the consequences of a check by representatives of the National Council.  The scope for abuse in the application of these provisions is obvious.

11. The Law does not define offences for which the National Council could impose sanctions on the TV and radio broadcasting organization which runs counter to the principle that a law must be clearly defined and clear in content.

12. The final text of the Law did not undergo any expert analysis by international organizations such as the Council of Europe or OSCE which always kindly offer their services. The recommendations from the international organization “Article 19”  added to the text approved during the first reading were not taken into consideration.  There was no public debate of the final text of the Draft Law in Ukraine at all. And the Deputies simply did not read the text since it was handed out at the last moment before the vote.

Furthermore, in the opinion of experts from UHHRU and the Media Law Institute,  there also remain such extremely equivocal issues as the appointment of managers of the Ukrainian National Television Commission and the Ukrainian National Radio Broadcasting Commission; the unwarranted extension of the term of office of members of the National Television and Radio Broadcasting Commission from 4 to 5 years which is in no way connected with  the passing of this Law; the obligation to dub in a Ukrainian audio translation ALL films and programs OF ALL television and radio broadcasting organizations; the grounds for reregistering licences within the framework of a territorial segment of the licence’s force for only 5 times the minimum before tax; the licensing of operators of a program service (cable operators). 

Given the above-mentioned flaws, human rights activists would urge the President to use his power of veto again the Law “On television and radio broadcasting” and resubmit the Law to the Verkhovna Rada for serious revision.

On 28 December the first sitting of the newly created Public council for observance of human rights at the Ministry of Internal Affairs was held.

This Council is a consultative-advisory organ which renders consultative-methodical assistance to the Ministry of Internal Affairs of Ukraine and exercises public control over the activities of law enforcement bodies. The council includes 14 employees from the Ministry, namely the Minister, all his deputies, the head of the Ministry administration,  several Minister’s councilors and also 13 public figures representing various civic organizations, 11 from Kyiv and 2 from Kharkiv. The joke was heard at the round table that “Ukraine without Kuchma” had finally the Ministry of Internal Affairs, but by peaceful means, since the initiators and heads of the action from both sides were represented in the public council. The Ministry of Internal Affairs was represented by co-chairman of “Ukraine without Kuchma”, Minister of Internal Affairs Yuri Lutsenko, and the public – by three out of four initiators of “Ukraine without Kuchma”: Oleg Levitskiy, Mykhaylo Svistovich (press-secretary) and Volodymir Chemeris (co-chairman).

At the first sitting the members of the public council elected as their co-chairpersons the co-chairperson of the Kharkiv Human Rights  Protection Group, Evhen Zakharov from civic organizations, and the Minister, Yuri Lutsenko – from the Ministry of Internal Affairs . The Deputy Minister, Oleh Sadykin was elected executive secretary responsible for organizing  the everyday cooperation of the Council with agencies and departments of the central apparatus of the Ministry, main directorates of the Ministry of Internal Affairs  of Ukraine in the regions, the Autonomous Republic of the Crimea, Kyiv and Sevastopol and on transport, as well as for organizing and holding sittings of the council, organizational-technical and document provision of its activities. Oleg Levitskiy, a lawyer from the town of Irpen, the Kyiv region, became a secretary of the council from public.

The participants also elected the heads of seven groups for work in seven directions of human rights protection: rights of the detained – lawyer from the Kharkiv Human Rights  Protection GroupArkadiy Bushchenko; electoral rights – head of the Voters’ committee of Ukraine Igor Popov; freedom of peaceful assemblies – member of the Board of the Institute “Respublika” Volodymir Cheremis; right for privacy – director of the program “Rule of Law” of the International Foundation “Vidrodjennia” Roman Romanov; problems of violence in family – vice-president of the international women human rights protection center “La Strada-Ukraina” Olga Kalashnik; work with citizens’ appeals – head of the all-Ukrainian public association “PORA” Mykhaylo Svystovich, rights of refugees – the place is vacant.

The names of all groups are as yet tentative, and composition of the council is opened for replenishment from public. This decision was taken at the first sitting. Besides, the documents on activities of the Council will be changed too, and new documents will be prepared in the nearest future. These documents will be elaborated by members of the Council as homework, and will be presented at the nest sitting.

Similar councils will be also created in the Autonomous Republic of the Crimea, all regions, in the cities of Kyiv and Sevastopol.

Members of the Council listened to the information of Doctor of Law Katerina Levchenko, a councilor of the Minister of Internal Affairs on human rights and gender questions, on the work of mobile groups realizing the monitoring of observance of human rights. Such groups were created in all regions of Ukraine by Order of the Ministry of Internal Affairs of Ukraine No. 536 of 7 July 2005. These groups include representatives of human rights organizations, higher education establishments of the system of the Ministry of Internal Affairs , department of internal security and other subunits of the Ministry of Internal Affairs . Katerina Levchenko communicated that the best results of the monitoring were observed in the regions, where representatives of human rights organizations took part in the mobile groups. In her opinion, one of the primary tasks of the Council should be reinforcement of the mobile groups with such representatives and their training. The Council decided to develop the mechanism of involving of public organizations into the work of the mobile groups.

At the end of the sitting Evhen Zakharov stated that the Council would be able to fulfill its tasks, if it worked actively between the sittings, and the sittings should only approve already prepared decisions. He suggested that all discussions be held by email, which the others supported.

The members of the council resolved to discuss the questions of widening of its composition, basic directions of work of the seven groups, increase of number of members of these groups, forming of mobile groups, etc.

Our informant

The gas war between Russia and Ukraine is not only, as might seem at first glance, a war between two countries. 

In December 2005 Putin’s Russia, with the help of its “hyper-monopoly” Gasprom, began a determined counter-offensive against Europe after two decades in retreat from the time of the collapse of the USSR.  Up until recently it lacked sufficient material, political and ideological resources for such an attack.

Russia’s retreat from Europe, after the success of its victory in World War II, has lasted 50 years already – there was the relinquishing of occupied Austria and the fiasco over Yugoslavia, then the retreat from the countries of Central Europe (East Germany, Poland, Hungary, Czechoslovakia, Bulgaria, Rumania) at the end of the 1980s, and also the loss of the Baltic States, Ukraine, Byelorussia, Moldova and the Caucuses after the dissolution of the Soviet Union at the beginning of the 1990s.

The era of Yeltsin’s Presidency has become fixed in the minds of the majority of Russians as a time of troubles. The traumatized consciousness of these Russians was inevitably designed to find as Russia’s heir to the “throne” an avenger, a person who would make up for the “humiliation” they saw themselves as having suffered over the past decades.

And just such a person emerged, naturally enough from the bosom of the KGB.  This person was Vladimir Putin. He was destined to emerge and indeed appeared thanks to conflict – the war in Ichkeria (Chechnya) and the apartment block bombings in Moscow. To ensure his success in the Russian consciousness, he needed permanent conflict and enemies of Russia assailing the country from all sides (with the turn now having reached Ukraine).

The appearance of such a “saviour of Russia” or “gatherer of the Russian lands” [1] coincided nicely with the highly advantageous for Russia rise in the price of energy resources.

Beginning with the oil crisis of the 1970s, and particularly from the 1990s, the world came face to face with the realization that the world’s energy supplies were a finite resource.  The main countries of the world understand that without control in one form or another of the key bases of energy resources, even their own further development, not to speak of their dominating role in the world, were simply impossible.

The main wars which are waged these days in various forms are wars about energy resources. Here we can cite the two Iraqi wars waged by the USA, and Russia’s two wars over Chechnya.

One should also mention in this connection the “confrontation of the civilized world with world terrorism”, for example, as seen in Libya, Iran and Ichkeria.  There is the transformation of a number of countries into “rogue nations”, as well as the fight to control the transport infrastructure of unstable countries, as for example Byelorussia and Ukraine.

Wars over energy supplies are not only wars for oil and gas fields, but also over the ways and means of transporting these resources.

The main energy bases in our region in the nearest future, aside from the countries of the Middle East, are Russia and the countries of Central Asia.  The Caspian Sea-Shelf is particularly promising.  It is for this reason that there is so much interest in cooperation with Azerbaijan, Iran, Turkmenistan and Kazakhstan.

These countries are typically not themselves players on the geo-political chessboard but rather objects of manipulation by main powers.  As a rule, the availability of energy resources or involvement in their transportation serves less to develop the country, than to preserve a puppet non-democratic regime. Possibly the only exception would be Norway.

The biggest consumer of energy in the world is the USA.  In second place to them, and the most dependent, is the European Union. Recently China has begun using more and more energy resources.

The EU is most dependent because its opportunities for receiving its own gas or oil are extremely limited in comparison to its requirements, while at the same time, one country – Germany – is attempting to reject atomic energy as an alternative.  Combined with this, the very success of the political program of the European Union in its economic competition with the USA, Japan and China depends on having adequate energy supplies.

The traditional source of energy supplies for the EU is the Middle East and Mahrib, this explaining France and Germany’s restraint on the subject of providing support for the USA in its war on Iraq.  They and the USA compete as consumers of these energy resources. At the same time, their oil and gas companies are competitors for control of oil and gas extraction in their regions.

The EU is attempting to get as close as it can to these treasures. Even allowing Turkey  to join the Union does not seem an unreasonable price to pay. The leaders of the EU are ready to pay even this price in order to reach the oil and gas fields in Iraq, Iran and Azerbaijan.

Another strategically important partner for the EU is Russia.  Russian gas and oil deposits are relatively close to its territory. Not only that, but they are also quite possibly the only major deposits which are not to some extent or other controlled by the USA (The USA’s attempts to gain control with the destruction of “Yukos” were a flop).

Moreover, Putin saw energy policy as being Russia’s final chance to once again become a real world power.  Particularly since the major part of Russian export is made up specifically of energy supplies, which also form the main source of State revenue for Russia.

 The country therefore has not only mobilized its entire energy business and transformed it into an instrument of State policy, but is also attempting through various means to gain control of the energy resources of its former colonies – Kazakhstan, Uzbekistan, Turkmenistan and Azerbaijan.

With a monopoly on the transportation of their energy resources to the EU and to the European States of the former USSR (including Ukraine), Russia is able to effectively exert influence on them, which it is successfully doing.

Russia is no less actively endeavouring to hinder attempts to redirect the movement of energy resources bypassing its territory.  The construction of a transport corridor Baku – Supsa has provided a hard knock to Russia’s monopoly in this sphere.  It will therefore apply all efforts to try to block the even more ambitious plan for transporting energy resources from Central Asia to its geo-political opponent – China.

With the implementation of these two major projects, the “Russian” direction for transportation of energy resources may become marginalized.  This will therefore marginalize Russia’s influence in this region as well, and thus Russia’s importance to the EU. It is this that Russia cannot allow.

The “energy-dependent” (not in the sense of consumption, but of export) structure of the Russian economy also forms “energy-dependent” Russian domestic and foreign policy.

The sensational “Khodorkovsky case” demonstrated the approximate means of resolving “business” issues inside Russia.  There is no obstacle which they would not be able to overcome.

Through the creation all around its periphery of such puppet regimes as in Byelorussia, Putin’s regime believes it is best ensuring that its new energy policy is controllable and unhindered.

Combined with this Russia has enjoyed considerable success in the European vector of its policy.  The majority of major European States, first and foremost Germany and France have tacitly abandoned efforts to democratize Russia itself.

The cynical “family friendships” of Putin and Schröder not only led to the signing of a bilateral agreement on the building of a North-European gas pipe along the bottom of the Baltic Sea and bypassing Ukraine, the Baltic States and Poland, but also marked out Putin’s Russia as the guarantor of stability in the region, thus perpetuating Lukashenko’s regime in Byelorussia.

In this the situation for Putin couldn’t have panned out better.  Not only is Germany a hostage in the energy field, but it has also become an instrument for carrying out Putin’s policy.  At a particular point Putin effectively began to manipulate the preferences of that country, at least as far as countries like Ukraine are concerned.

Failure for Putin came only with the “Orange Revolution” when Ukraine made an attempt not only to become more democratic, but also to break free of Russian control.

However Russia did not spend too long licking its wounds.

Russia’s large-scale operation in retaliation began with the conflict over the issue of gas supplies. However one can rest assured that it will not be limited to the gas issue alone.  The restrictions on import of Ukrainian pipes to Russia and the increase in the export duty on oil provide evidence of this.

Having assured themselves of the EU’s deep vulnerability as regards energy and having organized powerful political support for its policy in the economic and political establishment of a number of key EU countries (not excluding openly corrupt dealings), Putin decided with one blow to resolve several political and economic issues.

The first of these was to gain political control of Ukraine.  We can consider what was needed for this.

It was necessary to discredit the “pro-American” governments of President Yushchenko as risk-taking, incompetent and incapable of negotiating.  And most importantly, to present it as an unstable American puppet state which could choke the energy throat of the EU.

It was important to force Ukraine to take steps which the EU would deem inadequate – turn off the supplies of gas and oil,  extract gas or oil supposedly destined for the EU without sanction. This would present Ukraine as a zone of instability.

The very first step had to be raising prices on all energy sources. The oil crisis in Ukraine during the spring of 2005 was the first warning bell. However the Ukrainian government did not draw the appropriate conclusions and underestimated the determination of their opponent.

The oil crisis was planned on the eve of the peak period for oil consumption – at the beginning of the summer. Therefore the gas attack could have been anticipated to come on the eve of the peak of gas consumption – in December, as indeed happened.

If the oil crisis was talked about only in Ukraine, the gas attack was prepared as a large-scale show on the world stage.  It was good for these plans that Russia even in Yushchenko’s Ukraine has unlimited information resources and has not lost a scrap of the information base which it had under Kuchma.  

The show with turning off the gas was designed to demonstrate the determination and clout of Russia not just to Ukraine, but also to the EU, and to Russians themselves.

The show with turning off the taps was planned also as a means of intimidating and destabilizing Ukraine.  The government there was to be dismissed and the budget rejected.

In this the time was chosen very cleverly – Ukraine is undergoing a process of reform of the regime and is moving from a presidential to a parliamentary form of republic. In addition, an election campaign is beginning in Ukraine – the ideal moment for political revenge.

However the first reactions showed that no destabilization of society had taken place. The government did not fall, the budget was adopted. Even the anti-Yushchenko opposition responded in a reasonably lethargic manner, understanding that the main thrust of the offensive would hit eastern regions and their business.

Hysteria was for the time being seen rather on the Russian side. The resource of gas-related blackmail was for the moment insufficient to bring about the full destabilization of Ukraine.

Entirely sufficient, however, to ensure that Ukraine was discredited before its partners from the EU.

Ukraine could not transport gas to the EU free of charge and had every right to extract gas as payment for its transit in accordance with previous agreements. This would inevitably reduce the supplies of gas to the EU and this was what Russia needed in order to discredit Ukraine.

Such a loss of reputation for Ukraine as a country providing transport would of course accelerate the process of building alternative gas and oil pipes bypassing its territory.

Together with this it was an enormous weapon for influencing the elections in Ukraine. The halt called to energy-consuming industries in the east of the country could even more strongly mobilize the already fairly mobilized electorate of Yushchenko opponents which, together with the changes to the power structure and the election of a new prime-minister and speaker of the Verkhovna Rada with much greater powers, would effectively achieve retaliation for the Orange Revolution.

However the main political aim of Putin’s regime was to block Ukraine’s entry of NATO and to stall Ukrainian integration into the EU.  This is because Ukraine’s joining NATO is not only the USA’s prerogative, but also that of other members of NATO.  This was also to be the price that Putin would soon demand from Ukraine.

The price for Russian gas which was in no way economically justified was purely a pretext.  The frenzied anti-NATO propaganda of  Putin’s faithful supporters from the anti-Yushchenko camp in the Ukrainian political milieu was highly indicative.

One of the secondary aims of the gas attack was also the attempt to reduce American influence in Central Europe which is particularly strong in Ukraine, Poland, the Baltic States and other new members of NATO.

Combined with this there were also some purely technical aspects to Putin’s gas attack.

Of these the main one was to gain full control over Ukraine’s gas transportation system. Raising the price of gas was intended to lead to the Ukrainian gas transportation infrastructure being handed over to Russia. This would remove Russia’s technical dependence on Ukraine in the area of gas transportation.

The possible next step was to be taking over Ukraine’s oil pipe infrastructure. However this will be the next “surprise” for the Ukrainian government in spring 2006.

Moreover, whereas if in the gas conflict Ukraine can force the EU to moderate the Russian appetite, because both Ukraine and the EU are sitting on the same pipe, in the case of oil pipes, Ukraine will be more alone.

What reactions can one expect from the main geo-political players?

Russia will act with a view to the reaction of the USA and the EU. Today’s gas crisis is a trial shot sent by Russia.  A particular touch to this whole situation can be seen in the fact that the scenario was planned on the eve of the summit of the Group of Seven + Russia in Moscow.  A move worthy of Machiavelli himself.

The USA is clearly not eager for such an increase in activity of Russia in the whole region and will therefore put pressure on Putin.  For them, what is at threat is not just the new democracies in the post-Soviet expanse, but also the entire geo-political concept they have developed.

In the case of a collapse of democracy in Ukraine, which is fundamental for the USA, the entire plan for democratization (of in particular Byelorussia and Russia) could be ruined.

The next thrust could be aimed at the American influence and energy interests in the Caucuses and Central Asia. However, this is of course not an issue of democratization.

The EU may be divided in their response. Germany, represented by the new Chancellor Angela Merkel is fairly consistent in accentuating the great importance of Russia and says nothing about Ukraine. The countries of Central Europe are more likely to be on Ukraine’s side, although they will express this cautiously. 

However the Ukrainian government in this situation will need to show two mutually exclusive virtues – decisiveness and flexibility.

[1]  This is a term often used about Ivan III who began Muscovy’s expansion and consolidation.  (translator’s note)