war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

Point of view

Thoughts on Vsevolod Rechytsky’s Legal Commentary

My response to this commentary has one fundamental flaw: I am not a lawyer, and my legal awareness is based rather on a sense of justice. And from here it’s only one step to standing up for the political expediency which the author so correctly criticizes. From the point of view of law, therefore, our scales are radically different.

My first impression from the commentary was that each point in it seemed warranted, yet the whole was not. The second part of the text in which Vsevolod Rechytsky moves from a purely legal analysis somewhat mellowed that impression. In that part the author presents a number of apt general thoughts, and yet the feeling that something is missing remains.  In speaking of the justification of Mr Rechytsky’s arguments, I mean first and foremost the force of the legal logic before which I always feel a certain degree of humility. However I felt just this same sense of humility reading the analysis of the situation in Ukraine given by the American Judge of Ukrainian origin Bohdan Futey (cf. the interview in “Ukrainska Pravda” from 10.04.07 ) In Judge Futey’s opinion, Article 90 of the Constitution (which the President is most criticized for having “infringed”) is not confined to the right of the President to dissolve the Verkhovna Rada. My ability to personally fathom the justice of purely legal arguments is more than limited.

However, among Vsevolod Rechytsky’s conclusions there is one with which I cannot agree. He states: “The increase in the parliamentary majority thus leads not to a threat to the State or the people’s sovereignty, but to excessive regulation of the political processes in the country”. Having found myself one fine day at the will of a bribed constitutional majority in a new “Rasputin-style” Union, I would be unlikely to feel any gratification at knowing that this had been achieved by constitutionally legal means. The precedent of Adolph Hitler’s democratic victory is all too telling. So even if President Yushchenko finally becomes the victim of his own decision, I will be grateful to him for that attempt to prevent us slowly slipping into the clutches of the coalition snake which has so adeptly hypnotized us.

Vsevolod Rechytsky correctly concludes that both sides have fallen into a legal bog. It turns out that launching the mechanisms of the rule of law in a chronically non-law-based state is by no means so simple.. We lack a starting point from which we can begin a “clean slate”. Each side after all has their own trail of infringements of the Constitution. There is no political force which has not at some stage gone against the law, has not betrayed its partners and has not renounced its pre-election promises. The judiciary’s paralysis cannot therefore be explained only through the intimidation or corruption of judges. Its main cause is the prolonged imitation of a legal system and it is now impossible to establish when exactly the legal illegitimacy of the authorities’ decisions began.

However Vsevolod Rechytsky does nonetheless attempt to find such a beginning point and finds it in the procedurally unlawful passing of the “political reform” or constitutional amendments of 8 December 2004. “Against the background of the political upheavals of recent years the true threat for Ukraine would seem less the coalition’s majority, than the split in State power at the highest level, exacerbated by the “political reform. …. The Constitution as rewritten by incompetents is indeed illegitimate and is absolutely not a document which we should defend with all our might”. I agreed with this verdict back when it appeared in the joint assessment from the Kharkiv Human Rights Protection Group, of which V. Rechytsky was co-author. It is indeed mainly those who insisted on introducing this “political reform” and those who agreed to it who bear the blame for the present troubles in the country. However you look at it, those who signed the agreement regarding these amendments with violations of the Constitution lost the moral right later to accuse others of violating the Constitution.

Here too, however, it is not so easy to throw off the logic of political expediency. After all, if I had to choose between an unconstitutional political compromise and legal purism together with bloody conflict, I would I imagine still choose compromise. It is after all easier to overcome a legal collision than blood which has been shed.  It is vital only that, having maintained peace in society, you do nonetheless rectify in timely manner the consequences of the mockery made of the law. Otherwise, as Mr Rechytsky correctly states, legal nihilism will inevitably become “the prelude to chaos”, and this means that it will bring society to the bring of new civic conflict.

Let us return to the text of the commentary. I suspect that my dissatisfaction arises mainly from the impression that the author is analyzing the situation in one moment of time where the position taken by the President seems most vulnerable, whereas in fact at another moment the situation might have looked the exact opposite. I don’t therefore know whether in our situation it is at all possible to make a self-sufficient academic legal analysis of the constitutionality of one state act taken in isolation. The main aim of legal experts at the present, in my view, should be directed at seeking how to find and justify a point for “risk assessment” under the previous mass disregard for the law and to start a “clean sheet” after which each violation of the Constitution or legislation must definitely be identified and punished. I feel that it would be impossible to achieve this from any arbitrarily taken point in time with general consensus regarding the binding nature of the rule of law.

They say that in the present situation the only pragmatic solution is to find a political consensus. That at least is the conclusion to which an ever greater number of analysts are coming. However that is precisely the kind of hope that is so well expressed in the Ancient Roman contra spem spero – “I hope against hope”. The latest political expediency it would seem can give a temporary breathing space during which the sides will only re-consolidate their forces for new confrontation. New deals will not provide true resolution since the parties to the conflict are simply not ready for it. At the end of the day nobody can even give any sensible explanation of what kind of resolution this would be. I am therefore filled with two seemingly conflicting moods. On the one hand, I am grateful to the post-Maidan opposition since it has finally emerged from the stupor of disunity and inaction. The rules of a duel demand that that the glove flung down is taken up. I would like the hand of the opposition to be firm. On the other hand, bearing in mind that the positions of all parties are legally weak, I would hope that politicians’ firmness will not come out in blind stubbornness, as a result of which the legal collision will turn into legal absurdity. I would so hate to see Ukraine enter the world’s books on jurisprudence as a textbook example of legal dilettantism. 

It is vital only that the next reconciliation definitely be combined with a harmonizing of relations between the branches of power and the formulating of civilized rules of the “game”. In this case Ukraine could emerge from the present crisis more democratically mature.

At the moral level the situation is even more tragic. All political forces without exception have betrayed and conned somebody. There is no political force which would have the moral right to stand in moral judgment over others. Well, you don’t plan a moment of catharsis at a party congress and therefore the people (or more precisely, the morally attuned people with a conscience) must be vigilant so as to not miss the moment when such a general purification may become possible. Looking at 2005, how state criminals peaceably turned into innocent “political opponents”, I became obsessed with the idea of lustration as an enforced, but saving medicine for the Ukrainian social disease. However this did not last long. These days I am more and more enthusiastic about the experience of the well-known Truth and Reconciliation Commission in South Africa. There the non-violent nature of the dismantling of the Apartheid system was safeguarded not via under-the-carpet deals resulting in the main criminals escaping liability, but in nationwide repentance taking legal form. Having made a voluntary confession to the Commission, those whose conscience was burdened by some crime were freed from further punishment. Those criminals who did not wish to repent were, if their crime was uncovered, subject to the force of the law.

The difference between the Ukrainian and South African situation is huge. In our case the unrepentant sin has remained in the public organism, is swirling, increasing and continuing to spread its poison. After all, even after stifling his own conscience, a criminal still remembers his crimes and fears being found out. In order to prevent this, he assiduously defends the criminal system which is his only guarantee of the longed-for safety. Defending the system, a person commits new crimes and in this way a vicious cycle is formed from which there seems no escape..

However there is in fact an escape as the South African Commission brilliantly proved. However paradoxical this may sound, an effective legal mechanism was found for the cleansing of the human conscience.  Having voluntarily made a confession and received forgiveness from the members of the Commission (the moral authorities of the nation), a person not only ceased to fear for his or her safety, but could also confidently take the side of good. It no longer made sense to defend the criminal system since the past was not hanging over him or her, and the person gained the moral right to begin life with a clean slate.  In this way sin was cleansed from the public organization and the system of law only helped in this! The more I think about the experience of South African lawyers, the more impressed I am. And in the light of that admiration, I am inclined to think that in the conclusion given by Vsevolod Rechytsky, an honest lawyer who experiences almost physical pain from the constant disregard for the law, what has emerged triumphant is nonetheless pure legalism, while something crucial and of vital significance remains outside the equation.

A constitutional law analysis of the Presidential Decree of 2 April 2007 on dissolving parliament

President Yushchenko’s Decree No. 264/2007 “On the early termination of the powers of the Verkhovna Rada of Ukraine” has led to a whole range of statements both from politicians and from lawyers (including the author of this analysis) regarding the lack of compliance of the Decree with Article 90 of the Constitution and, consequently, of its being unconstitutional. An overview of publications and statements in the media also suggests that the vast majority of politicians and legal experts believe the Decree to be unconstitutional.

Undoubtedly the public, politicians and experts have the right to freely express their position and give assessments of a legal document of such prominence. However, given the lack of unanimity in assessing the content of the Decree, categorical assertions that it is clearly unconstitutional are unacceptable. This can, after all, be considered on the one hand as pressure on the Constitutional Court which is the only body empowered by the Constitution to judge the constitutionality of the President’s legal acts. On the other hand no warnings or comments about the content of the Head of State’s Decree, or any doubts with regard to its constitutionality absolve anybody of the constitutional duty of obeying a Presidential Decree. Still less do they entitle public calls to not obey it. Until the Constitutional Court issues a judgment on the constitutionality of the President’s Decree of 2 April 2007, the Decree must be complied with on Ukrainian territory, in accordance with Article 106 § 3 of the Constitution. The fact that National Deputies have made a constitutional submission to the Constitutional Court regarding the Decree does not suspend its force.

In view of the above, we feel it necessary to carry out an impartial and purely formal constitutional law analysis of the President’s Decree specifically in terms of its compliance with the demands set out in the Constitution. This means predicting the possible arguments which could be given in the Constitutional Court judgment regarding its constitutionality.

1.  The Presidential Decree states that the grounds for its issue are the ignoring by the majority in the Verkhovna Rada of the constitutional requirements regarding the formation of a coalition of deputy factions manifesting itself in the developing unconstitutional practice of expanding on a mass scale its numbers through individual or group membership, in contravention of Article 83 of the Constitution.

An analysis of the provisions of Article 83 makes it possible to conclude that this assertion by the President in the Decree is fully justified. The legal basis and procedure for the formation, as well as for the termination of a coalition of deputy factions, are set down in Article 83 of the Constitution and in Chapter 12 of the Rules of Procedure of the Verkhovna Rada. According to Article 83 § 6 of the Constitution, “A coalition of deputy factions … shall be formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms”.

Pursuant to Article 61 § 1 of the Rules of Procedure of the Verkhovna Rada “A coalition of deputy factions (hereafter coalition) is a voluntary association of deputy factions which is formed in the Verkhovna Rada of Ukraine on the basis of the results of election and on the basis of the harmonisation of the political platforms. A coalition is comprised of a majority of the National Deputies from the constitutional composition of the Verkhovna Rada”. A coalition is formed by deputy factions created in accordance with the procedure established by these Rules of Procedure” (Article 61 § 2).

These norms unequivocally demonstrate that the participants in the formation of coalitions of deputy factions are specifically deputy factions, and not individual National Deputies. At the same time, an analysis of the text of the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada between the factions of the Party of the Regions, the Socialist Party of Ukraine and the Communist Party of Ukraine from 7 July 2006 shows that besides the National Deputies belonging to these factions, the said Agreement was signed by individual National Deputies who belong to the factions of the political bloc “Nasha Ukraina” and the electoral bloc of Yulia Tymoshenko [BYuT].  Two National Deputies from “Nasha Ukraina” – O.A. Volkov and V.M. Zaplatynsky signed the Agreement on 7 July, while the National Deputy from  BYuT V.V. Zubyk on 10 July 2006.

In view of this, it is entirely logical to ask whether the procedure for the creation of a coalition of deputy factions in the Verkhovna Rada as set out in Article 83 of the Constitution was adhered to. In our view, two answers are possible.

1)  If the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada from 6 July 2007 between the subjects defined by the Main Law – the deputy factions of the Party of the Regions, the Socialist Party of Ukraine and the Communist Party of Ukraine, was also signed by unsuitable parties – National Deputies from the deputy faction of the bloc “Nasha Ukraina”, then it is only their signatures which should be declared invalid, and this can accordingly not in any way place in doubt the legitimacy of the Anti-crisis coalition as a whole. At the same time, in the given case one should take into consideration the requirements of Article 19 § 2 of the Constitution which states: “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”. In our view, this constitutional norm fully applies to deputy factions in the Verkhovna Rada as bodies of the Verkhovna Rada, as well as on National Deputies. Therefore the signing of a coalition agreement by individual deputies from the deputy factions of “Nasha Ukraina” can be considered an act in contravention of the Constitution of Ukraine.

2)  The legal fact of the signing of the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada from 7 July 2006 by at least two unsuitable parties - National Deputies from the deputy faction of the bloc “Nasha Ukraina”, implies the invalidation of the said Agreement as a whole. After all the signing of a coalition agreement by unsuitable parties is a direct and unequivocal violation of Article 83 § 6 of the Constitution. This means that on 7 July 2006, in the signing of the Agreement on the creation of an Anti-crisis coalition the procedure set down in Article 83 § 6 of the Constitution on creating a coalition of deputy factions in the Verkhovna Rada was violated. In other words a coalition of deputy factions was formed, however with an infringement of Article 83 of the Constitution of the Ukraine which is one of the grounds envisaged in Article 90 § 2.1 of the Constitution for the use by the President of his constitutional right to terminate the powers of the Verkhovna Rada ahead of term.

Article 90 § 2.1 of the Constitution states that “The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada in the following cases, if: 1) the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions in compliance with Article 83 of this Constitution within one month”. Analyzing this norm of the Main Law, one can conclude that the justification for its application by the President was the presence together of two necessary pre-requisites: 1) the formation within one month of a coalition of deputy factions in the Verkhovna Rada; and 2) the formation of a coalition of deputy factions in accordance with Article 83 of this Constitution. And as we have seen, the Anti-crisis coalition in the Verkhovna Rada was formed within one month however in violation of Article 83 of the Ukrainian Constitution.

The above gives grounds for asserting that from 7 July 2006 and up to the signing by President Yushchenko of Decree No. 264 “On the early termination of the powers of the Verkhovna Rada of Ukraine”, there was a reason envisaged by Article 90 § 2.1 of the Constitution for the President to terminate the authority of the Verkhovna Rada ahead of term.

It should here be noted that neither Article 90, nor Article 106 of the Constitution establish any time frame during which the President, given the presence of grounds for early dissolution of the Verkhovna Rada, may apply his constitutional right and terminate the authority of the Verkhovna Rada.

Nor does the Constitution make the said constitutional right of the President, enshrined in Article 90 § 2.1 of the Constitution dependent on his submission to the Verkhovna Rada of the candidate for Prime Minister proposed by the Anti-crisis coalition. Therefore, the potential references of the opponents to the fact that the President submitted the candidacy of Viktor Yanukovych, as proposed by the Anti-crisis coalition for the post of Prime Minister does not entail any legal consequences and cannot be taken into consideration when the Constitutional Court issues its judgment into this case.

One should also note another infringement during the process of creating the Anti-crisis coalition in the Verkhovna Rada on 7 July 2006. In accordance with Article 83 § 9 of the Constitution “The basis for the formation, organisation, operation, and termination of activities of coalition of deputy factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and Rules of Procedure of the Verkhovna Rada of Ukraine”.

Article 65 § 2 of the Rules of Procedure of the Verkhovna Rada states: “A deputy faction has the right at any time to leave the coalition, having notified the leaders of the other deputy factions in the coalition of this in writing no later than ten days before the date of leaving. During this period the deputy faction has the right at any right to withdraw its resignation in writing. If the deputy faction has not withdrawn its statement, at the first plenary session after the ten days has elapsed, the Speaker shall announce the withdrawal of the deputy faction from the coalition”.

Article 65 § 4 of the Rules of Procedure of the Verkhovna Rada stipulates that “Notification must be given by the Speaker no later than four days after the deputy faction has joined the coalition, withdrawn or been excluded from it,  or after the new composition of the coalition has prepared a new text of the coalition agreement. In the same period of time, this notification shall be published in the newspaper “Holos Ukrainy” [“Voice of Ukraine”], together with the personal composition of the deputy faction which has withdrawn or been excluded from the coalition, or the personal list of those who have been added to the coalition, as well as the new text of the coalition agreement.”

According to Article 66 § 2 of the same Rules of Procedure: “The functioning of the coalition is deemed to be terminated in cases envisaged in points 2 and 3 of paragraph one of this article from the moment of the official announcement of this by the Speaker at the plenary session. Notification of this termination shall be published in the newspaper “Holos Ukrainy” no later than four days after the official announcement of its termination”.

Analyzing the procedure for the creation of the Coalition of democratic forces and the circumstances of its termination, as well as the process for the formation of the Anti-crisis coalition in the Verkhovna Rada, one can conclude that there were significant infringements of the above-mentioned Rules of Procedure of the Verkhovna Rada. Firstly, the faction of the Socialist Party withdrew from the Coalition of democratic forces without notifying the leaders of the other factions who had signed the Agreement at least ten days in advance. Secondly, the same faction violated the time period for announcing their withdrawal from the Coalition of democratic forces at a parliamentary plenary session. In the third place, the same faction did not place a notification of their withdrawal in the newspaper “Holos Ukrainy” (no later than four days after the official announcement at the plenary session).

Only after consistent adherence to these requirements did the faction of the Socialist Party have the right at their session to consider whether to take part in the formation of another coalition and to pass the relevant decision following democratic procedure. In spite of the above-mentioned requirements set down in the Rules of Procedure of the Verkhovna Rada, representatives of the faction of the Socialist Party effectively announced simultaneously their withdrawal from the Coalition of democratic forces and their joining the Anti-crisis coalition, with this being unexpected for the other members of the Coalition of democratic forces. These infringements of the Rules of Procedure of the Verkhovna Rada thus give all grounds for considering this to have been yet another infringement in the procedure for the creation of the

Anti-crisis coalition

2.  It is also important to analyze the legitimacy of the reference by the President in his Decree of 2 April 2007 to Article 102 § 2 of the Constitution which states: “The President of Ukraine is the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens’ rights and freedoms”.  The declaration at constitutional level of the President’s role as guarantor of the observance of the Constitution of Ukraine entails a whole range of constitutional mechanisms enabling the President to exercise these functions. For example, according to Article 106 of the Constitution, such mechanisms include: a) the right to terminate the authority of the Verkhovna Rada in cases stipulated by the Constitution; b) the right to revoke acts of the Cabinet of Ministers of Ukraine on the ground of their non-compliance with the Constitution and simultaneously appeal to the Constitutional Court of Ukraine for the verification of the constitutionality of such acts; c) the right to revoke acts of the Council of Ministers of the Autonomous Republic of Crimea; d) the right to veto laws adopted by the Verkhovna Rada of Ukraine.

In addition, an effective means of guaranteeing observance of the Constitution is the President’s right stipulated in Article 150 of the Constitution to make constitutional submissions to the Constitutional Court to resolve whether laws and other legal acts of the Verkhovna Rada are in conformity with the Constitution.

However, since the grounds for the issue by the President of his Decree No. 264 of 2 April 2007 was the widespread practice of mass additions to the Anti-crisis coalition through individual or group membership, this violating Article 83 § 6 of the Constitution, it needs to be established what constitutional mechanisms the President had available to him in order to guarantee observance of the Constitution in the given case and to stop this unconstitutional  practice of both the coalition as a whole, and of individual National Deputies who declared that they were joining the coalition.

From a systematic analysis of the provisions of the Constitution one may conclude that the President has no other constitutionally envisaged possibilities for exercising his function as guarantor of the observance of the Constitution and reacting to the above-mentioned infringements by a coalition of deputy factions or by individual Deputies, than that of early termination of the authority of the Verkhovna Rada. He cannot approach the Constitutional Court for a judgment as to the constitutionality of the Agreement on the creation of an Anti-crisis coalition in the Verkhovna Rada since this Agreement is not a legal act of parliament, and according to Article 150 of the Constitution, the Constitutional Court is not empowered to check its constitutionality. 

3.  Due to the fact that the President is his Decree No. 264 of 2 April 2007 dissolved parliament yet, despite the Decree, the Verkhovna Rada is continuing to work, we need also to analyze whether Ukraine’s parliament has been working legally since 2 April 2007, and whether the acts which it has passed have any legal force. Article 90 of the Constitution in the first paragraph stipulates a general rule, namely that: “The powers of the Verkhovna Rada of Ukraine shall be terminated on the day of the opening of the first meeting of the Verkhovna Rada of Ukraine of a new convocation”. Paragraph two states: “The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada”.  An analysis based on formal logic of the phrase “early termination of powers” enables us to conclude that in the given case what is referred to is the termination by the Verkhovna Rada of its activities in carrying out the constitutional powers enshrined in Article 85 of the Constitution from the moment when the President of Ukraine applied his constitutional right by issuing the relevant Decree. This means that if Article 90 § 1 of the Constitution established the general rule on the termination of powers of the Verkhovna Rada, then Article 2 establishes exceptions to this rule. The etymological meaning alone of the word “early” [literately “before term”] is “before the expiration of the established term”.

 In support of this position one can cite other norms of the Main Law regulating the procedure for carrying out the duties of a body where its powers have been terminated before they were due to expire. For example, Article 112 of the Constitution states that: “In the event of the pre-term termination of authority of the President of Ukraine in accordance with Articles 108, 109, 110 and 111 of this Constitution, the execution of duties of the President of Ukraine, for the period pending the elections and the assumption of office of the new President of Ukraine, is vested in the Prime Minister of Ukraine”. According to Article 115 § 5 of the Constitution: “The Cabinet of Ministers, whose resignation is accepted by the President of Ukraine, continues to exercise its powers by commission of the President, until a newly-formed Cabinet of Ministers of Ukraine commences its operation”.  Furthermore, Article 81 § 3 of the Constitution directly states that: “The powers of a National Deputy of Ukraine shall be terminated in case of early termination of powers of the Verkhovna Rada of Ukraine in compliance with the Constitution of Ukraine on the opening day of the first meeting of the Verkhovna Rada of Ukraine of the new convocation”. 

The Constitution thus contains a special norm in all cases when, after the early termination of the powers of any given State body, this body continues to carry out its duties until the newly formed body commences its work, or those duties are entrusted to another executive body or public official. In the case of early termination by the President of the powers of the Verkhovna Rada, there is no such special constitutional norm which makes it possible to conclude that the powers of the Verkhovna Rada ended on the day of the official publication by the President of his Decree “On the early termination of the powers of the Verkhovna Rada of Ukraine”. As a result of this, all acts passed by the Verkhovna Rada after 3 April 2007 do not have any legal force.

It is also worth pointing out that National Deputies of Ukraine continue to enjoy all their rights and guarantees as set down in the Constitution of Ukraine and the Law “On the status of a National Deputy of Ukraine”, with the exception of those which are directly connected with the powers of the Verkhovna Rada of Ukraine.

One should at the same time note that point 2 of the President’s Decree from 2 April 2007 is incorrect since the President of Ukraine cannot suggest that National Deputies continue to execute their authorities that are not directly connected with the authorities of the Verkhovna Rada. . In fact, regardless of whether or not this “suggestion” is made by the President, National Deputies continue to execute their authority on the basis of Article 81§ 3 of the Constitution.

4. The President’s designation of early parliamentary elections on 27 May 2007 is entirely in keeping with the requirements of the Constitution. According to Article 77 § 2 of the Constitution: “Special elections to the Verkhovna Rada of Ukraine are designated by the President of Ukraine and are held within sixty days from the day of the publication of the decision on the pre-term termination of authority of the Verkhovna Rada of Ukraine”. As well as this, Article 106 § 1.7 stipulates that the President designates special elections to the Verkhovna Rada of Ukraine within the terms established by this Constitution.

The procedure for holding snap elections of National Deputies is set out in Section XI of the Law “On the elections of National Deputies of Ukraine” from 7 July 2005. An analysis of the provisions of that Law shows that, provided the compliance as demanded by Article 106 § 3  of the Constitution with the provisions of the Decree of the President from 2 April by all parties, the snap elections can take place within the period of time established by the Constitution. It should, moreover, be noted that according to Article 8 § 2 of the Main Law: “The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it”. Any claims, therefore, that it is impossible to hold snap elections for the Verkhovna Rada in the time designated by the President in full compliance with the Constitution are entirely unjustified and unconvincing.

5.  All of the above makes it possible to draw one other conclusion which we believe to be important regarding legal assessments of President Yushchenko’s Decree No. 264/2007  from 2 April 2007 “On the early termination of the powers of the Verkhovna Rada of Ukraine” by the Verkhovna Rada, individual National Deputies and other politicians.

In point 6 of their Resolution No. 237 from 2 April 2007 “On preventing measures which threaten constitutional law and order, public peace and stability in Ukraine”, the Verkhovna Rada resolved “to draw the attention of the State authorities and bodies of local self-government, official print outlets and their officials and employees of the inevitability of legal liability for failure to adhere to Article 60 of the Constitution of Ukraine regarding the issuance or execution of a manifestly criminal ruling or order”. With regard to this, the question arises whether there are even any grounds for believing the said Presidential Decree to be manifestly criminal. In our view, the arguments presented in this analysis at least prevent us from asserting that the President in issuing the given Decree clearly exceeded his constitutional powers and in so doing committed a criminal act.

Since there are objective grounds in favour both of regarding the Presidential Decree No. 264 from 2 April 2007 as not being in compliance with the Constitution of Ukraine, and of suggesting that it fully complied with the Main Law of Ukraine, to view it as manifestly criminal, openly not obey it and publicly call on people not to comply with it is not only unwarranted, but in its turn criminal.

Determination of the compliance of the Presidential Decree with the Constitution of Ukraine is the exclusive prerogative of the single body of constitutional jurisdiction in Ukraine – the Constitutional Court and cannot be assumed by any other body of State power or other public official.

11 April 2007

Legal commentary on the Presidenti’s Dissolution of the Verkhovna Rada and on the overall political situation in Ukraine

As we know, on 2 April 2007 President Viktor Yushchenko issued Decree No. 264/2007 “On the early termination of the powers of the Verkhovna Rada of Ukraine”.  The decree both acknowledges and substantially escalates the acute political crisis in the country. It is these circumstances which have prompted the following commentary. It should be stated from the outset that the commentary is based on certain well-known axioms. This includes the principle that liberalism which is not based on the power of the law is worth little, while democracy which is not based on the rule of law is nothing but a prelude to chaos. Political chaos most often ends with the rule of the strong. It ends up with freedom not based on the law being effectively the right of force.  It is essentially from these classical principles that we will attempt to build this commentary.

The President’s Decree (hereafter the Decree) states that:

1)  the situation has emerged where a majority in the Verkhovna Rada are ignoring constitutional requirements on forming coalitions of deputy factions, for example, “instead of isolated cases when individual National Deputies have joined the coalition …  we now have the practice of mass filling of their ranks through individual or group membership”.

2) “the violation of the constitutional provisions regarding the formation of deputy factions distorts the results of people’s declaration of will …. in March 2006”;

3) this formation of the coalition “constitutes disdain of the constitutional electoral rights of citizens of Ukraine”;

4) it also “results in neglecting of constitutional principle of the people’s sovereignty”;

5) in addition, “Such a development of events creates the prerequisites for usurpation of power in Ukraine”;  

6) Finally, all this “also threatens national security, causes destabilization of political situation in the State, and creates potential danger for State’s sovereignty “.

In my opinion, each of the above-mentioned elements of the Decree warrants separate legal assessment. It would therefore be expedient to consider the situation specifically in accordance with most of these theses.

1. The Decree asserts that at present a mass filling of the ranks of the ruling coalition is taking place on the basis of individual or group membership. This means that from the outset we encounter a value judgment from the President as to whether a certain (in my view not mass – V.R.) number of Deputies have begun voting in unison with those who belong to the ruling coalition. With the exception of the move to the coalition of the deputies of Anatoly Kinakh’s group, and earlier – of Oleksandr Moroz’s socialists, what we have here is not so much the physical moving from faction to faction, as much as the change in priorities in voting of certain members of the parliamentary coalition. Since in the last few days, these people were removed from the makeup of the ruling coalition, their link with the coalition remains purely ideological.

If one recalls that paragraph 2 of Article 80 of the Constitution states that “National Deputies of Ukraine are not legally liable for the results of voting or for statements made in Parliament and in its bodies”, the question arises: what is the sense of the “serious violation” mentioned in the Decree?  After all, the coalition’s new sympathizers sit in the same plenary chambers as they sat before. They listen, think, take decisions and vote. All the same as before, only the inner judgments and political attitudes have changed significantly. However does any faction have power over the intellect, moral convictions and spiritual values of its members? Moreover, do even the people of Ukraine have such power over the consciousness of deputies?

At the 2006 parliamentary elections, the people elected very different individuals with all their inevitable inner convictions, moods and judgments. The voting moreover was effectively on the basis of closed candidate lists. That means that the people when voting for deputies had to rely on the maturity of the political force which formed a specific list. In reality the lists were formed by the leaders of the blocs and parties, thus it is they who bear the main responsibility for the illogical behaviour of their chosen candidates. If places on the list were bought for money, then any grievances are in general out of place. The people did not empower political leaders to sell places. If then they did this, then they should bear constitutional liability. In the latter case it would be logical to dissolve not the entire Verkhovna Rada, but only the opposition factions which have become morally corrupted.

However in no electoral system in the world is the choice of people infallible. A normal electoral system can be majority, proportional or mixed, however in any of these cases it must produce a result where errors of the expression of people’s will are isolated, that is, not creating an effect on a mass or systemic scale. Here the Decree states that there has been a mass change in political orientation. However if the sympathies and subsequent voting of deputies change on a mass scale, than this would give grounds for speaking not of political apostasy, but of a faulty manner of forming electoral lists, a legally unacceptable electoral law.

On the other hand, there are no serious grounds for asserting that the people as represented by the majority of voters were really irritated by the transfer of deputies from the opposition to the coalition. The people, in fact, elected National Deputies not directly to the coalition or the opposition, but to parliament – the Verkhovna Rada of Ukraine.  

This means that according to the law, the people cannot influence whether deputies join the coalition or the opposition, and should not be able to. One can also not exclude the possibility that during the period which has elapsed since the last parliamentary elections, the electorate has moved towards new political priorities together with the renegade deputies. At least the President of Ukraine cannot be entirely sure of knowing the present political mood of the people. As relatively recently history demonstrates, leaders can be wildly at variance with the people. Suffice to cite the example of Nicolae Ceaucescu.

If the sympathies of the majority of the population at the first elections were given to one party, and at the second to another (the typical situation in a two-party system), then why could they not change in a shorter period of time?  In March 2006 the people could want one thing, and in April 2007 – something else.

In the final analysis, if the voting of individual deputies from opposition factions together with the coalition is betrayal, then the voting of an entire faction – ByuT [the bloc of Yulia Tymoshenko)  for the Law on the Cabinet of Ministers could be seen as an even greater betrayal.  This after all virtually destroys the political weight of the position of President of Ukraine. And why in that case not consider as betrayal of the electorate the fact that President Yushchenko himself put forward the candidacy of Viktor Yanukovych as Prime Minister? After all, it was to stop the latter coming to power that his electorate stood out on the winter Maidan Nezalezhnosti [Independence Square, in Kyiv].

One way or another, from the legal point of view, it is not possible to prove that the change in the strategy of voting by a whole faction or the change in political tastes of the President with regard to the candidacy of Viktor Yanukovych were a blessing for the people, while the change in the voting strategy of individual deputies was an evil.

2. The position taken in the Decree that ““the violation of the constitutional provisions regarding the formation of deputy factions distorts the results of people’s declaration of will …. in March 2006” is also extremely dubious. It would follow from the Decree’s logic that the transfer of socialists under Oleksandr Moroz’s leadership to the “anti-crisis coalition” in summer 2006 did not distort the will of the voters, but the move of other factions later did.  Such a conclusion has no logic to it, since immediately after the elections the will of the electorate was closer to the will of those deputies it had elected than 9 months later. However we must stress that the Constitution immediately after the elections allows National Deputies to enter as a faction any coalition.

Article 83 § 7 of the Constitution states only that a minimum of 226 deputies organized into factions must decide within the space of one month to join the ruling coalition. It is clear with this that, given a multi-party system as in Ukraine, that the political unity of the coalition can only be relative.

Parties after all join the coalition; they do not dissolve into it. It would therefore seem logical that according to the Constitution and the law, such unity should suffice only for the formation of the Cabinet of Ministers. The Constitution quite simply says nothing more about the future fate of the coalition unity, nor about the unity of the opposition. This means that it does not envisage any duty of either the coalition or the opposition to vote in opposite ways. On the contrary, from Article 80 § 2 of the Constitution it follows that deputies’ votes are on principle an individual matter. This means that they are governed by their own choice, intuition, and not by party (factional) discipline.

We must therefore reach the only conceivable conclusion that the Constitution does not envisage voting in unison either within the bounds of the ruling coalition or within those of the opposition. As far as general standards of party democracy are concerned, it is not the party that should think like the leader, but the leader who must be in harmony with his or her fellow party members. This rule applies to an even larger extent to deputy factions which may, according to Ukrainian law, include non-faction deputies. At the end of the day a moderate dissident in a party or faction demonstrates their tolerance and pluralism, and then the norm. While the opposite, absolute political unity is the clear hallmark of “democratic centralism” of the Soviet type.

3. Another assertion of the Decree which would appear legally unproven is that the “filling” of the ranks of the coalition “on the basis of individual or group membership” ““constitutes disdain of the constitutional electoral rights of citizens of Ukraine”.

The electoral rights of Ukrainian citizens boil down to them either voting for party or bloc lists (the majority system is in force only at elections to village and settlement councils), or themselves getting on such lists.  

There are no serious problems with active electoral law in Ukraine however the situation with passive electoral law is considerably worse.

The constitutional amendments of 8 December 2004 and the Law “On the election of National Deputies of Ukraine” in the edition from 19 January 2006, introduced a proportional system of voting with virtually closed electoral lists. This adversely affected the political rights of Ukrainian citizens, while making it possible to fill the candidate lists of parties and blocs with eccentric oligarchs, guards and chauffeurs of VIPs, as well as stage and television stars. Having enabled the deputy corps to be formed from the business or overtly exotic layers of society, the electoral law automatically stimulated the lack of control and unpredictable behaviour of parliamentary neophytes.

In honesty the “political reform” [as the constitutional amendments are known – translator] of 2004 and the electoral law adopted on its basis have made Ukrainian politics overtly corporative and the Verkhovna Rada itself the epitome of some kind of casino club for the rich. Since the amendments and the electoral law were voted in by the last makeup of the Verkhovna Rada together with the President to be, it is these people who bear responsibility for the systemic failings they contain.  Quite simply, the problems of the present situation in parliament and society have arisen not from deputy renegades, but from the systematic features of the “political reform” and the legislative decisions passed on the basis of these amendments.

As far as the procedure for forming the coalition which the Decree mentions, this does not directly influence the exercising by Ukrainian citizens of their electoral lights. In Ukraine, thank goodness, the imperative mandate is not recognized at parliamentary level. A National Deputy is not a primitive instrument for passing on the mood and preferences of the electorate, but a responsible, independently thinking and politically autonomous individual. Any voter can change his or her preferences and the same applies to any National Deputy. The present pre-election programme is a declaration of intentions and not battle regulations. It can be exercised in very many ways. It is for this reasons that deputies have the right to choice their tactics for parliamentary life.

A healthy faction is not an anthill nor a beehive with roles fixed once and for all. However, experts note that in Ukrainian parliamentary factions the decisions are made by the party elite which comprise at most 3 or 4 people. It is not surprising that the style of work of such totalitarian factions arouses only reluctance and disgust. You can dress up all in members of a Ukrainian parliamentary faction in white sweaters, but it’s much harder to bleach the human mind. At the end of the day, each voter takes a certain risk when voting for this or that person as their representative.

A political marriage, like any other, can at times prove unsuccessful.

In any case, the President cannot and does not need to know who specifically in any given parliamentary faction represents the correct course. After all in a democracy only statistics certify the truth. It is even more difficult to grasp any universal truth among the people. There is a French proverb that “In this world what is most terrible is that each person is in his or her way right”. How, for example, do you assess the behaviour of breakaway deputies in a case where their political preferences diverge with those of the faction leaders, yet are close to those of the wider public?

According to established European practice, a parliamentarian defends the interests not of specific voters, but of the nation as a whole. As Rudyard Kipling wrote in the “Ballad of East and West”: “And thou must harry thy father’s hold for the peace of the Border-line”.  One can cite another example closer to us. If the communists had not followed Stalin, but rather Stalin the communists, the harm for civilization would probably have been less.

4. Nor is the point quite clear in the Decree about how the spontaneous procedure for the formation of a coalition “results in the neglect of the constitutional principle of the people’s sovereignty, enshrined in the second and third paragraphs of Article 5 of the Main Law of Ukraine”. We are talking here of deputies from the opposition joining not a minority, but the majority in the Ukrainian parliament. Furthermore, we don’t know whether Oleksandr Moroz’s faction, by having joined the coalition, have lost their electorate. We similarly do not know whether President Yushchenko lost his electorate after he fairly recently put forward Viktor Yanukovych’s candidacy for the post of Prime Minister. It is likely that he disillusioned some circles of the public while for others he began to appear wise.

In terms of constitutionalism it is customary to believe that an organically formed majority in parliament reflects a majority among the population. This means that the people’s sovereignty exists as the political will of the majority. According to the traditional definition, the people’s sovereignty is the unity, inviolability and rule of the political will of the people. However in practice, the sovereignty of the people is a qualitative state which arises through the emergence of a political majority. A political minority cannot by definition epitomize this sovereignty.

Thus, if the size of the ruling coalition increases in the country, then this leads to a strengthening of those characteristics which are inherent in the concept of the people’s sovereignty. It is quite another matter that a positive quality of the sovereign will of the people is not at all guaranteed. In 1933 the political will of the German people was to elect a monster as leader of their country. The tyrant Fidel Castro has the support of the masses in Cuba, while the terrorist Che Guevara to this day arouses the admiration of the younger generation.

It is no secret that the political will of the Ukrainian people is balanced between two vectors of development leading to signficantly different prospects for the country. It is for this reason that having gained a difficult victory in the Presidential elections, the orange forces should have done everything to gain the support as swiftly as possible of at least a few percent of the blue and white electorate.

However this historic chance was ignored, and seemingly lost. The policy of the orange regime was not caring and humane, and focused on the needs of the average person. For example, the move towards the European values they declared required radical changes in the attitude of the State to education. After all, only an educated person can understand the meaning of freedom, the dignity of the individual and of democracy. Yet Ukrainian provincial schools, just as their teachers, have remained in penury. Not even the network of provincial bookshops, traditional for communist times, was renewed. The law did not work as a universal regulator. Key witnesses were invited to the Prosecutor General via national television channels, and the vote-riggers in the elections could laugh at the weakness of the victors. The appalling, yet logical, consequence of this political atmosphere came with the former Prosecutor General Mykhailo Potebenko, being finally awarded the honour of Yaroslav the Wise.

Economic benefits were mainly channelled into the capital which turned the Khreshchatyk into a national parking area for Mercedes. In the architectural sense, Kyiv, as one expert put it, became the embodiment of the “daydreams of a drunken confectioner”. The spread of salaries in the State sector reached 1:40. And this was while self-confidence contrasted with the extremely modest erudition of the ruling elite. It is not surprising that at the parliamentary elections only the inertia of people’s hopes saved the orange camp.

The excessive consolidation of power (on any basis) can lead to disastrous consequences on a nationwide scale. However it does not represent a threat to the people’s sovereignty.

The expansion of unity in parliament encroaches upon pluralism, polyphony and variety in society and is dangerous for the rights of political minorities and the individual. Political consolidation thus becomes a serious threat to liberalism. However it is not this that the Decree talks of. It is not difficult to guess that the President is worried not about the State or the people’s sovereignty per se, but what shade of colour both sovereignties may come in.

The increase in the parliamentary majority thus leads not to a threat to the State or the people’s sovereignty, but to excessive regulation of the political processes in the country. Hypertrophied unity is a factor less of destabilization, than of stagnation in Ukrainian society. It is precisely against this that the arguments of the Presidential Decree should have been directed. If the intentions of the Guarantor of the Constitution can be in the final analysis considered to be positive, then the purely legal logic of his Decree openly fails to coincide with these intentions. The artificial “inflating” of the parliamentary majority does not threaten to destabilize the country, but to induce a lethargic stupor.

5. The argument of the Decree regarding the “usurpation of power in Ukraine” is also not well-suited to the actual circumstances. The usual understanding of usurpation involves a forced seizure of power. There are at present no grounds for claiming that the transfer of deputies from parliamentary opposition to the side of the majority is the consequence or precondition of force.  One does not yet see any clear signs of coercion. We do not have the right to associate with coercion the financial, business or other temptation organized by the coalition for their opponents.

Therefore the Decree’s legal construct should also be deemed incorrect. The arguments used in the Decree are political and not legal (constitutional). The Decree demonstrates the real concern and anxiety of the President, however from a legal point of view it does not prove the existence of those threats which it speaks of.

6. As the Decree shows, the President also considers that the last events in parliament pose a threat to national security and potentially jeopardize State sovereignty. One can agree, but only in part, with this assertion.  The risk to national security and State sovereignty is not so much due to the hospitality of the coalition which it so generously bestows on its opponents, but due to the general deepening of political problems in the country. It is this that I would like to expand on below.

An analysis of the Decree and of the political situation around it enables us to reach certain conclusions. It is clear that Ukraine is endangered by an excessive concentration of the parliamentary majority however it is still more at risk from the schism of the executive branch into two powerful centres which has resulted from the “political reform”. The constitutional split is in turn organically ending up with “two Ukraines” [Mykola Rybchuk) – East-South and West-Centre which at one time received coverage in Ukrainian publicist writings.

As a result, Ukraine has ended up with the competition, dangerously exacerbated by the “political reform” of two political stands and two visions for the strategic development of Ukraine. Given this situation, the President’s Decree can be seen as merely a characteristic symptom. From outside it all looks as though the President was not so concerned about stability in the country, as worried about the fact that it was being constructed according to a “Regional” model. The historical (geopolitical) grounds for this confrontation are the fact that the centre and West voted Viktor Yushchenko President, and the East and South make Viktor Yanukovych Prime Minister.

Against the background of the political upheavals of recent years the true threat for Ukraine would seem less the coalition’s majority, than the split in State power at the highest level, exacerbated by the “political reform”. It is this split in the executive branch of power that has led to the lack of cohesion between Ukraine’s domestic and foreign political course, confrontation between bodies of local self-government and the State administration in the East and South of the country.

It is no secret that the general retrograde and conservative style of government which representatives of the political forces of the coalition are demonstrating virtually everywhere are a danger to the country. The general atmosphere is oppressed by the archaism of primitive myths which dominate in the system of State education, the superstitious attitude of even educated layers of the population to the idea of European integration and Ukraine’s potential membership of NATO.

It would also be difficult to overestimate the danger implicit in the disregard for the Constitution and laws of the country by the authorities and high-ranking public officials. Sufficient to mention the blocking of the functioning of the Constitutional Court by the former Speaker of Parliament V. Lytvyn, the fact that the Head of the Supreme Court V. Malyarenko and the Human Rights Ombudsperson N. Karpachova took part in the elections, the voting by deputies of the Verkhovna Rada using other deputies’ cards, the judgment of the Constitutional Court in favour of Leonid Kuchma’s standing for office a third time. Unfortunately the President’s Decree has not moved far in form from such practice.

The model of proportional representation for bodies of local self-government appears harmful. The incredible spread of salaries in the State sector is destroying national unity. The situation where a National Deputy receives a salary which is a few dozen times higher than the salary of a highly qualified teacher or surgeon is a greater threat to national unity in Ukraine than any upheavals at the level of parliamentary factions. As some Austrian political scientists have asserted, with the kind of divide in State salaries as that in Ukraine, it is simply impossible to create a political nation.

There is therefore indeed a steadily deepening political crisis in Ukraine. This is first of all the general crisis of confidence of the population towards the authorities. This is also the crisis arising from the primitive level of awareness of the population resulting in large numbers of Ukrainians being afraid of Brussels and NATO. It is the crisis of the economic divide between the rich and the poor, as well as between State higher and lower ranking officials. It is a crisis of constitutionalism and lawfulness, resulting in high-ranking public officials consciously ignoring the requirements of their own law-based system. It is a crisis of moral and ethical qualities of National Deputies and their leaders which resort to mass blackmailing votes.

In the strategic sense, the majority of features of crisis in Ukraine are linked with the fact that it has still not managed to part with the theory and practice of totalitarianism. The instrumental focus in the behaviour of political leaders, their inability to be guided by values and principles, the mass disregard for the Constitution and legislation, untrammelled political ambition – these are all results of a plebeian political  culture and of a long-term shortage of modern knowledge and freedom. On the other hand, as more time passes, the public’s attitude to the Ukrainian political reality becomes more and more critical. For example, people are beginning to understand that the Constitution of Ukraine was damaged in December 2004 purely as the result of the personal ambitions of the highest-ranking politicians.

The systemic failings of the constitutional amendments are presently destroying Ukraine’s political course. The overt primitivism of the electoral system and imperial mandate are making Ukrainian politics unwieldy and its State life a permanent settling of personal accounts. The collapse of the Constitution has made Ukrainian politics at once hypocritical, emotionally distasteful, inhumane and ineffective.  The more rhetoric and slogans are declared by the political elite, the deeper the divide between them and the population. In the final analysis the mutual recriminations and the Decree of 2 April 2007 have made one simple fact clear and transparent: all without exception political parties and branches of State power bear responsibility for the systemic crisis in Ukraine. And the greatest blame lies with those who were and should remain the most sensible and intelligent.

The Decree on the dissolution of parliament will obviously be a hard nut to crack for the Constitutional Court not only because of the purely legal features. It is difficult to analyze also through its moral and ethical basis. From the legal point of view one does not need to provide lengthy proof for stating that the President does not have the right to arbitrarily dissolve parliament. Viktor Yushchenko is not the Tsar’s Governor in the Caucuses who in the times of the Russian Empire usually had discretionary powers. On the other hand the President is right in the sense that the Ukrainian State has hit a dead end, society which has grown indifferent is disintegrating before our eyes, and we must somehow react to this.

In themselves snap elections in a country which is growing and changing rapidly are easy to justify. However the energy of the population at such elections needs to be used to maximum effect. The real problem which the Constitutional Court now faces is that per se the dissolution of parliament and new elections will not enable Ukraine to come out of its systemic crisis. The reasons for the latter lie concealed in the matrix of the “political reform”. While this exists, no Ukrainian parliament or government will be able to escape its destructive influence.

In order therefore to cure the illness, more daring measures are needed. The “political reform” can be put to a nationwide vote or abolished in the Constitutional Court. There is no shortage of legal arguments for this. The Constitution as rewritten by incompetents is indeed illegitimate and is absolutely not a document which we should defend with all our might. Since the responsibility for the reform lies with all branches of power, the President should also dare call new Presidential elections. First, however, the fate of the “political reform” needs to be decided.

As far as the further scenario for the “rebirth” of Ukraine is concerned, than this should be drawn up not by the Constitutional Court, but by a roundtable of the main political forces in Ukraine. Here it is worth listening to the advice which Leonid Kravchuk is ready to give.

One can understand the hopes of the opposition for political revanche, just as for their gloating expectations regarding the future political fate of A. Kinakh and O. Moroz. However political life is ultimately paradoxical. Attempting to beat “Solidarity”, the Polish communists provoked a crisis, hoping that the people would come out onto the streets with Marxist slogans and red flags. Instead Polish workers unexpectedly came out onto the streets under the sign of the Black Madonna.  Such disillusionment could await our opposition members. It is not inconceivable that over the last two years the people have moved on a different road towards understanding political reality which is quite different from the President’s path.

However, under any circumstances, Ukraine’s problem lies not only in the fact that “bad” politicians have seized the initiative from the “good” politicians. What is staggering is that even the “good” politicians are absolutely not concerned about the reputation of their own constitutional judges. And they, after all, form the legal elite of the country. The previous Constitutional Court was discredited in the eyes of the international community due to the judgment regarding a third term in office for Leonid Kuchma. At present it is not clear whether the new Constitutional Court will wish to sacrifice its international reputation in favour of the Guarantor of constitutionalism. It is obvious that Ukraine needs real shock therapy. However the Decree offers the Ukrainian public a roughly sharpened scalpel.

In any case Ukrainian voters should think seriously whether it is worth once again giving their votes to those who have awarded themselves salaries dozens of times higher than those of their voters, and also to those who for the sake of unlimited ambition damaged the national Main Law. It is indeed time for Ukraine’s rebirth. However this can begin from something understandable to all and simple. This could be, for example, a review of the procedural elements of the “political reform”. This may seem from the outside insignificant however it could open the door for us into the fresh air.

Victims of political repression

1937 and the present day

Seventy years ago, following a decision by the top Party bodies in the USSR another bloody “purge” began. It was to last for two years. Historians often refer to this campaign as the “Great Terror”, while ordinary people call it simply “Thirty Seven”.

The communist dictatorship was always – before and after 1937 – associated with political repression. However it was specifically Nineteen Thirty Seven that has become fixed in people’s memory as the terrible symbol of a system of mass murder organized and carried out by the State. This is evidently due to some exceptional features of the Great Terror determining its particular place in history as well as to the enormous influence which it exerted and continues to exert on the fate of our country.

Nineteen Thirty Seven was the massive scale of repression engulfing all regions and all layers of society without exception, from the leadership of the country to peasants and workers infinitely removed from politics. More than 1.7 million people were arrested on political charges from 1937-1938.  If one adds the victims of deportation and those convicted as “socially harmful elements”, the number of those repressed came to over two million.

It was the extraordinary brutality of the sentences, with more than 700 thousand of those arrested being executed.

It was the unprecedented planned nature of the terrorist “special operations”. The entire campaign was carefully thought out in advance by the top political leadership of the USSR and carried out under their constant supervision.

The NKVD secret orders stipulated the time periods for carrying out particular operations, groups and categories of the population liable to “purging” and also “limits” – the planned numbers of arrests and executions for each region. Any changes, any “initiatives from below” had to be agreed with and approved by Moscow.

Yet for the vast mass of the population who didn’t know what the orders contained, the logic behind the arrests seemed mysterious and inexplicable, defying commonsense. For the people of that time, the Great Terror seemed like a massive lottery. The almost mystical incomprehensibility of what was happening filled people with particular terror and made millions uncertain of their own fate.

The repressions particularly affected representatives of the new Soviet political, military and economy elites. The reprisals against people whose names were known throughout the country (and newspaper first reported their fate) and whose loyalty there had been no grounds for doubting, intensified the panic and exacerbated the mass psychosis. This even resulted in the myth that the Great Terror was directly exclusively against old Bolsheviks and the Party and State hierarchy. In actual fact the overwhelming majority of those arrested and shot were simple Soviet citizens who did not belong to the Party or to any elite.

Nineteen Thirty Seven was a scale of fabricated charges unprecedented in world history. In 1937-1938 the likelihood of arrest was largely determined by whether one belonged to any of the categories of the population indicated in one of the NKVD’s “operational orders” or on the basis of links, work-related, family or friendly ties, with people arrested earlier. Formulating individual “guilt” was up to the criminal investigators. Therefore hundreds upon hundreds of thousands of those arrested were presented with absurd charges of “counter-revolutionary conspiracies”, “espionage”, “preparing terrorist acts”, “sabotage” and so forth.

Nineteen Thirty Seven was the revival in the twentieth century of the norms of the medieval Inquisition with all its traditional features of people being tried in their absence (in the vast majority of cases), quasi-judicial procedure, the lack of defence and the effective merging within one department of the roles of the investigator, prosecutor, judge and executioner.

Once again, as during the Inquisition, the main proof was the ritual of “confessions” by the accused themselves. The endeavours to gain such confessions, combined with the arbitrary and absurd nature of the charges led to the mass use of torture. In the summer of 1937 torture was officially sanctioned and recommended as a method of running the investigation.

Nineteen Thirty Seven was the extraordinary and closed nature of legal proceedings. It was the mystery which enveloped the exercising of “justice”, the impenetrable secrecy around the places where people were executed or where their bodies were buried. It was the systematic official lying over many years about the fate of those executed. At first this was with the fictitious “camps without the right of correspondence”, then with their death supposedly due to some illness with false dates and place of death given.

Nineteen Thirty Seven was the collective responsibility with which the Stalinist leadership tried to bind the entire population. Throughout the entire country meetings were held at which people were forced to energetically applaud the public lies about the exposed and neutralized “enemies of the people”. Children were forced to denounce their arrested parents, wives – their husbands.

It was millions of families destroyed. It was the sinister abbreviation “ChSIR” –  “family member of a traitor of the Motherland” which served in itself as a sentence to imprisonment in special camps for the twenty thousand widows whose husbands had been executed on the ruling of the Military Collegium [Voennaya Kollegiya] of the Supreme Court.  It was the hundreds of thousands of “orphans of Nineteen Thirty Seven – people whose childhood was taken from them and whose youth was crippled.

It was the ultimate devaluing of human life and freedom. It was the cult of the Cheka [the Secret Police], the romanticizing of violence, and the deification of the idol of the State. It was a time of the total distortion in the national consciousness of all legal concepts.

And finally, Nineteen Thirty Seven was the absurd combination of a bacchanalia of terror with an unrestrained propaganda campaign singing the praise of the world’s most developed Soviet democracy, the world’s most democratic Soviet Constitution, the great achievements and labour feats of the Soviet people. It was specifically 1937 that saw the end to the forming of that characteristic feature of Soviet society – double-think, the result of a split in reality, imposed by propaganda on the public and individual consciousness.

* * *

And now, seventy years later, one clearly sees in the stereotypes of social life and State policy of Russia and other countries arising from the ruins of the USSR the fatal influence both of the catastrophe of 1937-1938 itself, and of that entire system of State violence, the symbol and quintessence of which were epitomized by those years. The catastrophe penetrated the mass and individual subconscious, exacerbated the obsolete ills of our mentality, passed down from the days of the Russian Empire and gave rise to new and dangerous complexes.

The sense of the worthlessness of human life and freedom before the giant Regime, this was the yet to be overcome experience of the Great Terror.

The habit of “managed justice”, law enforcement bodies who act not in accordance with the law, but obeying the orders of the leadership, it is these that are the clear legacy of the Great Terror.

The imitation of democratic processes in simultaneously emasculating fundamental democratic institutions and showing open disregard for human rights and liberties, violations of the Constitution committed to the accompaniment of oaths of unfailing allegiance to the constitutional order, this is the social model which was first successfully tested during the Great Terror.

The reflex-level hostility of today’s bureaucratic apparatus to independent public engagement, the never-ending attempts to place all under strict State control are also the result of the Great Terror when the Bolshevik regime put the last touches to the long history of its struggle with civic society.

By 1937 all collective forms of public life in the USSR – cultural, scientific, religious, social, etc, not to mention political – had already been crushed or replaced by imitations and pretence. Following this it was possible to destroy people one by one, at the same time driving out of the public consciousness any sense of independence, civic responsibility and human solidarity.

We are seeing the restoration in contemporary Russian politics of the old concept of “hostile surroundings” – the ideological base and propagandist backup for the Great Terror, suspicion and hostility to all that is foreign, the hysterical search for “enemies” abroad and a “fifth column” within the country, as well as other Stalinist ideological stamps reemerging in the new political context. All of this demonstrates the undefeated legacy of Nineteen Thirty Seven in our political and social life.

The ease with which nationalism and xenophobia arise and flourish in our society have undoubtedly come to us in part from the “national special operations” of 1937-1938, the deportations during the War of entire ethnic groups accused of treason, from the “fight against cosmopolitanism”, the “Doctors’ plot”, as well as the propaganda campaigns attached with all of this. Intellectual conformism, the fear of being different in any way, being unaccustomed to any free and independent thinking, the susceptibility to lies are in many ways the result of the Great Terror. Unlimited cynicism is the other side of double-thinking. Wolf pack labour camp morality (“you’ll die today and I tomorrow”) and the loss of traditional family values, these are also ills for which the Great Terror and the Gulag school are to a large extent culpable.

The catastrophic lack of connection between people, the herd instinct replacing collectivism, the serious shortage of human solidarity are the result of repression, deportations, forced resettlement. They are the result of the Great Terror the aim of which was after all to divide up society into atoms, to turn the people into the “population”, into the crowd which it’s easy and simply to control.

* * *

Obviously today the legacy of the Great Terror is not reflected in mass arrests, nor is it likely to be so, since we live in an entirely different age. Yet this legacy, which has not been understand by society, and which is therefore not overcome could easily become a “skeleton in the cupboard”, the curse of the present and future generations, spilling out whether it be in State megalomania, bursts of spy paranoia or regressions into repressive policy.

What needs to be done to understand and overcome the destructive experience of Nineteen Thirty Seven?

The last decade and a half have shown the need for a public review from the legal point of view of the political terror of the Soviet period. The terrorist policies of the then leaders of the country, first and foremost, the general ideologue and supreme organizer of the Terror – Joseph Stalin, and the specific crimes they were guilty of, need to be given clear juridical assessment.  Only such an assessment can be the starting point, the cornerstone of legal and historical consciousness and the foundation for further work with the past. Otherwise, the public attitude to events of the age of Terror will inevitably oscillate depending on changes in the political climate, while the spectre of Stalinism will periodically come to life and turn either into busts of the dictator on the streets of our cities, or in repeat attacks of Stalinist political practice in our life.

It would probably be wise to create a special judicial body to carry out such a full examination. There is no need to point to the precedents for this in world legal practice. Unfortunately, for the moment we see an opposite trend: in 2005 the Russian Federation State Duma excluded from the Preamble to the Law on rehabilitation from 1991 the only mention of “moral damages” inflicted upon the victims of Terror in Russian legislation. It would be redundant to plunge into a moral and political assessment of this step, since the conclusions are obvious. It is simply necessary to reinstate the words about moral damages in the text of the Law. This needs to be done also in order to atone for the insult to tens of thousands of elderly people – survivors of the Gulag, and hundreds of thousands of relatives of victims of the Terror.

However a legal assessment of the Terror, while important, is not in itself sufficient.

We need to ensure the right conditions for the continuation and development of investigative study into the history of State terror in the USSR. This involves first and foremost removing all the present artificial and unwarranted limitations on access to archival material connected with political repression.

Contemporary historical knowledge about the period of terror needs to become commonly known. School and higher education history textbooks are needed in which the subject of political repression, in particular, the Great Terror, receives the attention its historical significance demands. The history of the Soviet Terror must become not only a compulsory and considerable part of school education, but also the subject of serious efforts in public awareness-raising in the broadest sense of the word. Educational and cultural programmes are needed on State television channels, and there should be State support for publishing projects for academic and educational works, as well as memoirs, on the age of terror.

We need a National Museum on the History of State terror, fitting in its status and level to the scale of the tragedy, with this become a methodological and academic centre for museum work in this area. The history of the Terror and Gulag must be presented in all history and local area museums in the country, as with, for example, the other massive historical tragedy – the Great Patriotic War [the Second World War].

And finally, we need a national Memorial in Moscow to those who perished. This must be erected by the State and in the State’s name.  We have been promised such a Memorial now for 45 years and it is time to keep that promise. This however is not enough: such Memorials to the Victims of the Terror must be erected throughout the country. Unfortunately, in many cities the immortalizing of the Memory of the Victims has still not moved beyond the foundation stones laid 15 – 18 years ago.

Throughout the country there should be memorial plaques and signs marking places linked with the infrastructure of the Terror, the remaining buildings once used as investigation and transit prisons, the political isolation [detention] units of departments of the NKVD, Gulag, etc. Memorial signs, plaques and information boards should also be established in the places which held huge camp complexes, in enterprises created with the labour of prisoners, on roads leading to the remaining ruins of labour camp zones.

The names of streets, squares and of populated areas named after state figures that organized or took an active part in the Terror must be changed. Place naming must cease to be a way of immortalizing the memory of criminals.

A State programme is needed for putting together and publishing in all parts of the Russian Federation Books in Remembrance of the Victims of Political Repression. At the present time such Remembrance Books have only been published in some regions of Russia. According to approximate estimates, the overall list of names in these books is no more than 20% of the totally number of victims.

A nationwide or even inter-governmental programme for searching out places where victims of the Terror were buried and ensuring that these are honoured as befitting is urgently needed. This is not so much an education and awareness-raising issue, as a moral question. On the territory of the former USSR there are hundreds of pits and common graves where those executed were secretly buried. There are thousands of camp and special settlement graveyards, destroyed or semi-destroyed. Some bare only the traces, while in the case of thousands of graveyards, no trace remains.

All of this would help in restoring the memory of one of the most terrible human catastrophes of the twentieth century and contribute to building a firm immunity against the totalitarianism stereotypes.

The above applies in the first instance to Russia – the successor to the USSR, the largest of the former Soviet republics, the country whose capital held the centre for planning and launching terrorist campaigns, and for controlling the mechanisms of terrors, and the country which contains the main part of the empire which was the Gulag.

However very much of what needs to be done should be over the entire expanse of the former Soviet Union, preferably through the joint efforts of our countries. The history of the Terror is remembered and treated differently in the various post-Soviet republics. This is only natural. However it is of fundamental importance that dialogue emerges from out of this variance. Dialogue between the national memories of different peoples is an integral and necessary element in coming to terms with historical truth. It is only negative when it turns into wrangling, into attempts to avoid historical (and therefore civic) responsibility by laying it on the “others”. Unfortunately, very often it is precisely the history of the Soviet Terror which becomes an instrument of fleeting inter-State arguments, while honest joint work on a shared past is replaced by attempts to present accounts of mutual grievances, scores and claims.

A wide-reaching and comprehensive programme on the tragic experience of the past probably needs, therefore, to be international and intergovernmental. This applies to historical studies, publishing Books of Remembrance, ensuring that places where victims lie buried are probably marked and remembered, and much more, including perhaps the preparation of school textbooks. Memory of the Terror is the common memory of our nations. This memory does not divide us, but rather unites us. This is also because it is not after all only the memory of crimes, but the memory of joint opposition to the killing machine, the memory of solidarity between peoples and of people helping each other.

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Of course, the memory of the past is not formed through Decrees and governmental resolutions. The fate of historical memory can only be determined in broad public discourse. The urgent need for such discourse is becoming ever more apparent.

It is not only Russia, nor the countries which were part of the USSR or in the “socialist bloc”, that need to the Great Terror and, more broadly, the entire experience of Soviet history.  All countries and peoples, all of humanity need such discourse, since the events of the Great Terror made their mark not only on Soviet, but on world history. The Gulag, Kolyma, Nineteen Thirty Seven symbolize the twentieth century in the same way as do Oświęcim [Auschwitz] and Hiroshima. They extend beyond the historical fate of the USSR or of Russia, and are evidence of the fragile and unstable nature of human civilization and of the relative achievements of progress, and serve as a warning of the possibility of future catastrophic resurgences of barbarism.

For these reasons, discussion regarding the Great Terror must also extend beyond the boundaries of national issues. Just as some of the human catastrophes mentioned above, it must become the subject of general human reflection. However the initiator and focal point of this discourse must, clearly, be public opinion in the countries which belonged to the USSR, and in the first instance, Russia.

Regrettably, it is in Russia that public readiness to find out and accept the truth about their own history, which seemed at the end of the 1980s fairly strong, turned in the 1990s into indifference, apathy and reluctance to “delve into the past”. There are also forces with a direct interest in ensuring that no more discussion takes place on these issues. Both in the public consciousness and in State policy trends are becoming more pronounced which in no way contribute to free and direct discourse on our recent past. These trends are expressed in the official, albeit not always clearly articulated, concept of national history as “our glorious past”.

We are told that bringing to the surface the memory of crimes committed by the State in the past hinders national coordination (or, using the language of the totalitarian era, “undermines the moral and political unity of the Soviet people”).

We are told that this memory is harmful to the process of national revival.

We are told that we should first and foremost remember heroic achievements and feats of the people in the name of the great and eternal State.

We are told that the people do not want any other memory and reject it.

And indeed, a considerable number of our fellow citizens find it easier to accept comfortable and soothing myths than to soberly look back at our tragic history and try to understand it for the sake of the future. We can understand why this is the case: coming to terms honestly with the past places on the shoulders of present generations a huge and unaccustomed burden of historic and civic responsibility. However we are convinced that without taking upon ourselves this indeed terrible load of responsibility for the past, we will find no national consolidation and no revival.

As one of the most terrible anniversaries in our shared history approaches, “Memorial” calls on all those who care about the future of our countries and peoples to look back unflinchingly at the past and to try to understand its lessons.

  The International Memorial Society

“Prava Ludiny” (human rights) monthly bulletin, 2007, #04