“Prava Ludiny” (human rights) monthly bulletin, 2007, #05
Ten postulates regarding the Ukrainian electoral system Politics and human rights
Possible ways out of the present political crisis: some ideas put forward Against torture and ill-treatment
The Roots of torture lie in legislation and in entrenched practices among law enforcement agencies Point of view
Legal commentary on the Second Presidential Decree dissolving parliament from 26 April 2007 Victims of political repression
Work on the National Historical Memorial Reserve “Bykivnya Graves” is being sabotaged Remembrance Day for the Victims of Communist Repression in the Bykivnya Forest If not now then never … Deported peoples
In Memory of the Victims News from the CIS countries
Katyń: Moscow City Court refuses to grant “Memorial” the right of app
Ten postulates regarding the Ukrainian electoral system
The Spring of 2007 brought Ukraine a political surprise, with early parliamentary elections for the second time becoming a burning issue. Only time can tell whether Ukraine will prove ready for new elections and whether the new Verkhovna Rada really has a chance of becoming better than its predecessor. One can however already say that Ukraines electoral system, regardless of the disruption to its traditional timetable, is itself in a state of crisis. If a just cause can only be achieved through decent means, then it would be difficult, if not impossible, to overcome the political crisis without having eradicated the main shortcomings of the countrys electoral system.
It has so turned out that in attempting to determine the real state of Ukraines electoral legislation and how it is applied, this commentary and main warnings have organically emerged as ten relatively autonomous theses.
1. First and foremost, one must note that the principles of the Ukrainian electoral system are set out in Articles 69-74 of the Ukrainian Constitution which make up Chapter III “Elections, Referendum”. According to Article 155, this Section, together with Chapter I "General Principles,", and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine," are subject to heightened protection. What this means is that any attempt to remove or modify constitutional articles about elections and referendums must be affirmed via a referendum as a form of direct democracy. Chapters 1, III and XIII are amended according to particular regulations requiring complex juridical procedure.
At the same time, despite this protection of the principles of the Ukrainian electoral system by juridical guarantees at the highest level, in practice nothing in domestic public law changes as quickly and as often as current electoral laws. Almost every election to the Verkhovna Rada and local councils since Ukraine became independent has been held on the basis of new or significantly updated electoral laws. The same must be said about presidential elections.
Aside from the Constitution, Ukrainian electoral system is made up of the following laws:
“On the Ukrainian Presidential Elections” № 474 – XIV from 05.03.99 in the version of Law № 1630-IV from18.03.04;
“On specific aspects of the application of the Law of Ukraine “On the Ukrainian Presidential Elections” during the re-run of the voting on 26 December 2004”, № 2221-IV from 8.12.04;
“On the elections of National Deputies of Ukraine” № 1665-IV from 25.03.04 in the version of Law № 2777-IV from 07.07.05 and “On the elections of Deputies to the Parliament of the Autonomous Republic of the Crimea, local councils and village, settlement and city mayors” № 1667-IV from 06.04.04, with relevant amendments introduced to the Code of Administrative Justice № 2747-IV from 06.07.05, as well as laws № 3253-IV from 21.12.05. № 3368-IV from 19.01.06, № 3437-IV from 09.02.06, № 3519-IV from 14.03.06
In addition, after the adoption of Law No. 2766 from 18.10.01 “On the elections of National Deputies of Ukraine”, the Constitutional Court issued judgments with regard to the constitutionality of various provisions. These were CCU Judgment № 1-18/2002 from 30.01.02 and CCU Judgment № 13-рп/2003 from 03.07.03 which should also be considered part of electoral legislation.
In terms of the development of the national electoral system Ukraine first had a majority system for all councils without exception. This was changed to a majority – proportional system for parliamentary elections, and majority for local council elections. Finally, under the pressure of the best expectations and hopes, as well as due to the “political reform” [constitutional amendments] of 2004, the mixed system of parliamentary and majority system of local elections was replaced by an entirely proportional system.
The initiative was brought to its logical conclusion on a wave of enthusiasm. Henceforth only village and settlement councils are not elected accorded to party lists. As a result, the stability of the electoral system proclaimed in the Constitution has in practice turned into unprecedented fluidity of current electoral laws, reminiscent in dynamic to that of mercury.
In 2004 the Law “On the Ukrainian Presidential Elections” was adjusted before the last round of voting by a law on special aspects of the application of that law. It is known that the early elections to the Verkhovna Rada in 2007 are to be held on the basis of a package of legislative amendments. These involve, for example, the expediency of abolishing the right to vote using absentee ballot papers.
2. Electoral systems used in todays world are not only majority, proportional or mixed. Aside from the traditional classification, they can also be defined as relatively simply or relatively complicated. Even if elections take place through postal voting (Europe) or pressing buttons or levers on an electronic device (USA), they can be placed in the first or second group. For example, the Ukrainian elections held with the use of ballot papers may be considered relatively simple.
In mathematical language the Ukrainian system of the expression of the peoples will could be called “arithmetic”, in contrast to those systems which can be considered “algebraic”, i.e. not entirely simple. It can be noted that Ukraine has from the outset been modifying a simple system for counting votes although specialists in constitutional law and electoral systems know that the more complicated an electoral system is, the closer the outcome is to the mood and preferences of the electorate. This is of course when the complexity is in line with the level of preparation of the voters and the electoral commissions.
However if at the elections consideration of individual preferences (the change in position of candidates on the candidate lists) is ensured, or other mathematically or organizationally complex systems are used, this demands an educated corps of specially trained electoral commissions. In this case volunteers need to be specially selected, encouraged and trained. It is possibly for this reason that in Ukraine technologies demanding the use of complicated electoral formulae are avoided.
However, even with simplified models for calculation, virtually each election in Ukraine is reminiscent of a political rush-job. It is quite often the case that people are chosen for working at electoral commissions at the last minute. It is not surprising that such people receive insufficient instruction. They also receive inadequate incentive, not commensurate with their actual role, level of responsibility and efforts given. No wonder that at the last parliamentary elections independent observers noted a huge number of mistakes when preparing electoral protocols.
3. A separate problem of the Ukrainian electoral system is the use of a proportional model at local level. With the exception of the majority elections to village and settlement councils, the other local authorities and bodies of local self-government are elected according to a proportional system on the basis of party lists. At the same time all parties and blocs registered with the Ministry of Justice and the Central Election Commission function on the basis of nationwide programmes. This is the standard requirement of the Law “On political parties in Ukraine” № 2365-III from 05.04.01.
According to legislation, party programmes and charters in Ukraine must reflect the national interest. This in turn means that at elections for bodies of local self-government a centralized political view is effectively transplanted to the local level. Yet the interests of local areas and the regions often fail to coincide with the interests of the centre. They therefore are far from best suited to fit into the constraints of party programmes.
Such discrepancies arise and are exacerbated by the fact also that Ukraine recognizes and actually applies a civic theory of local self-government according to which the first participants in self-government are considered to be the territorial community – an autonomous source of public power which does not belong to the State but is independent (municipal). Under such a system local self-government and its bodies only deal with issues of local importance, while the functions of local authorities are implemented by the local State administrations.
Article 140 § 1 of the Constitution states that “Local self-government is the right of a territorial community — residents of a village or a voluntary association of residents of several villages into one village community, residents of a settlement, and of a city — to independently resolve issues of local character within the limits of the Constitution and the laws of Ukraine”.
The party imperative mandate at local level manifestly runs counter to such a system. As a result, deputy factions in regional and district councils are under double pressure. On the one hand they are governed by a political centre which is little aware of the real situation at local level. On the other, even non-party affiliated deputies of local councils find themselves under the pressure of faction discipline. This has on occasion already led to the formation of truly authoritarian sects – self-sufficient structures which are not however especially constructive from the point of view of implementing local policy.
We thus see that the transfer of political centralization and factional discipline to the local level does not create a constructive working atmosphere in regional and district councils. Voting which is excessively concentrated on party allegiance and the formation of irreconcilable political groupings among deputies result from the flawed structure of the Ukrainian electoral system.
4. Furthermore, the local imperative mandate has distanced individuals with independent thinking and their own political position from taking part in running State and civic matters. Under current electoral legislation, there is simply no place for such people in local representative bodies and in the Ukrainian parliament. As a result by no means all politically substantial individuals are able to fully enter the public sphere and gain access to the media.
As soon as an intellectually developed and self-sufficient individual wants to serve his or her community, s/he has to defer to a local party functionary. This is despite the fact that the persons stature is often incomparably greater than that of the party activist. The official leaders ambition conflicts with the “egoism” of the newcomer leaving the latter outside the political process. One way or another, individualism, as a typical attribute of liberal society has absolutely failed to find root in Ukraine. Instead we have a new version of Ukraine “democratic centralism”.
It is not clear what remains for autonomous individuals to do under such a system. Their intellectual and organizational potential is not being channelled which significantly increases the level of political frustration in society. It is galling that in todays Ukraine, not only the leader of the opposition Yulia Tymoshenko, but also the President Viktor Yushchenko, support the idea of an imperative mandate. Despite the fact that the Parliamentary Assembly of the Council of Europe has tried to steer Ukrainian politicians away from excessive administration, the national electoral system stubbornly thrusts people who think for themselves in a straightjacket of party programmes and plans. The situation continues where parties and factions do not boast of their individual members, but rather where belonging to the clan ensures public attention for a “cog” in the system.
5. The move from a majority electoral to a mixed system and from there to one which is proportional with closed candidate lists has turned Ukrainian elections into voting according to party labels. From the outside it looks as though the “political reform” of 2004 introduced the universal slogan: vote for the party, the party will sort it all out.
The latter has resulted not only in excessive political influence from the centre on the local authorities. Quite often the image of young parties is discredited by the lack of experience or small numbers of their provincial elite. This in turn leads voters to suspect that at the national level the party has no future.
Elections entirely on the basis of party lists at the local level means that voters need to understand the nuances of the political game. Yet this understanding at present in Ukraine, except in Kyiv, is lacking. A proportional system thus requires proper political education in the provinces. Such education in turn demands a level of material wellbeing which people do not at present have in rural areas and small towns.
The inability of the average voter to come to grips with the processes going on behind the party scenes has already led to a revival in Ukraine of a kind of census (limited) suffrage system of democracy. State governance and local self-government are becoming more and more reminiscent of government by the owners on behalf of the owners and in the interests of the owners.
6. At present in Ukraine debate is raging as to whether the imperative mandate is expedient. What is meant here is not the classical form of imperative mandate (where deputies depend on the electorate, on the orders of their voters), but rather on strict party discipline, political centralism in its post-Soviet variant. Unfortunately, the electoral system in Ukraine has not yet managed to become democratic and open. What happened here was that the pyramid of central totalitarianism disintegrated into small pyramids of authoritarianism at the local level. Instead of one “governing and guiding” force, Ukrainians have around 150 parties, with the level of democracy of each remaining that seen during communist times. According to researchers, the right of decision in Ukrainian parties is held by a small elite comprising three or four people.
Such a system does not take into account the fact that in the modern world there are more and more often situations where each participant is right in their own way. On the other hand, the more complex a political problem, the smaller the number of people who are capable of resolving it. All of this suggests an urgent need to understand the value of the individuals role combined with tolerance and pluralism. Unfortunately, individualized approaches to the assessment and resolution of problems in Ukraine are not encouraged and are seldom observed.
The Ukrainian political elite demonstrate a low level of willingness to understand that in the countrys development strategy there could be several equal variants. Politicians do not view the mosaic nature of Ukrainian society as something suited for practical application. Many of them continue to espouse a form of xenophobia in Soviet style. It is precisely in Soviet historical features that one finds the roots of the imperative mandate: ostracism of dissident thinkers; electoral lists which were closed for the general public; ideological intractability combined with readiness to use blackmail in voting.
7. Real life is multi-faceted and flexible, yet the Ukrainian political system remains unyielding. One sees a strange mixture in Ukraine of political pluralism with harsh party ideology. And this is while the number of political parties in the country far exceeds the number of themes in world literature.
Many parties are marked by an exaggerated idea of their own significance. Although there are a fairly limited number of strategies for political development in the world (rightwing, leftwing, centrist, a radical wing, “greens”), the ambitions of the political elite in Ukraine bears little correlation to their popularity ratings. This is not surprising since even minimal legitimacy enables a Ukrainian politician to head the Verkhovna Rada. Furthermore, those parties boasting the names of the former Speaker of Parliament, the Head of the Supreme Court or the President, were not able to cross the vote threshold. The current preferences of the Ukrainian voters are in marked contrast with the self-assessment of the former leaders of the country. On the one hand the political tastes of the electorate undergo rapid change in Ukraine, on the other, in order to combat this the authorities resort to constant re-editing of the national electoral system.” Citizens have the right to participate in the administration of state affairs, in All-Ukrainian and local referendums, to freely elect and to be elected to bodies of state power and bodies of local self-government”.
In actual fact, under the new electoral system in Ukraine it is precisely this free access by citizens to passive electoral law which no longer exists. It is paradoxical, but in Ukraine we have a situation where one can stand for the office of President by paying a bond and putting oneself forward, yet one can only become a candidate for deputy of a district country by being included on a party list.
9. The current version of the Law on the elections to the Verkhovna Rada was drawn up especially for the 2006 parliamentary elections. At that time the legislators aimed at dealing with the shortcomings of the previous law which had not, they believed, sufficiently envisaged legal guarantees against vote-rigging and to ensure transparency of the peoples expression of will. The updated law was marked by detailed regulation of the electoral process with, for example, a complicated structure for electoral commission protocols. Unfortunately in practice the procedural guarantees were unable to avert basis buying and selling of places on the candidate lists.
A no less important failing of the law was its excessive complexity. The legislators tried to ensure efficient elections, however in their wish for perfection they lost any sense of measure. As a result, the juridical attributes of this large-scale normative act have made it less a law, and more a manual on the ideal training of personnel, “Bureaucracy according to Max Weber”.
Yet it is precisely according to this law that electoral commissions were to be made up of volunteers who, for a number of objective and subjective reasons, were unable to fully master the complex procedural aspects of their regulations. This led to confusion in completing protocols and to unwarranted suspicions that commission staff had been corrupted, and it prompted appeals against the outcome in many electoral polling stations in the courts.
10. In electoral systems the difference between beneficial and harmful is extremely often felt at the level of legal nuances. Elections must therefore have maximum balance of procedures, reasonable sequence of actions both those of voters and of the electoral commission personnel. This requirement moreover does not only apply to electoral commissions, but to the Central Election Commission itself.
If one looks at the Ukrainian electoral system from this viewpoint, it becomes clear that it remains constructed on the principle of mutual distrust between the participants in the electoral process. The system is for this reason doomed to failure. Only confidence in “political individuals”, backed by the proper guarantees of freedom, is capable of uniting separate individuals into a political community.
At least it is on this axiom that the moral foundation of modern constitutionalism is constructed. For this reason not only democracy and freedom, but also trust must become the objective in the further development of Ukrainian electoral legislation.
Vsevolod Rechytsky, constitutional expert for the Kharkiv Human Rights Protection Group
Politics and human rights
Possible ways out of the present political crisis: some ideas put forward
From 3-5 May 2007 the “Democratic Initiatives” Foundation surveyed 14 prominent Ukrainians regarding their views on how to overcome the political crisis in Ukraine. The specific questions were all open, with the respondents making their suggestions rather than assessing given variants.
1. What basically needs to be done and by whom?
The key words in the responses were “compromise” and “return to a legal framework”. The respondents were unanimous in believing that the crisis could only be resolved through negotiations between the parties presently in conflict. The analysts refer either to the “leading political forces (the Party of the Regions, BYuT – Yulia Tymoshenkos bloc, Nasha Ukraina [Our Ukraine], and the Socialist Party) or the branches of power (the President, Government, Verkhovna Rada) and the opposition, or focusing on individuals “Yushchenko and Yanukovych”. Their main demand to all parties is that they return to a legal framework, the prerequisite for which being to come to political agreements and revoke those decisions which led to the crisis. This means that parliament needs to revoke the Law on the Cabinet of Ministers and all acts passed after the resignation of the opposition and to renounce changes to the format of the coalition. The President must revoke his two Decrees dissolving parliament.
The following, in the opinion of the respondents, need to form the substance of negotiations:
- A political agreement establishing a path to overcoming the crisis and an action plan;
- Legislative and organizational backup for parliamentary elections;
- Procedure and principles of work on amendments to the Constitution and other legislation (laws on the elections, the status of a National Deputy, on the Government, on the 2007 Budget).designed to regulate the relations between branches of power, as well as on court reform, changes to the composition of the Central Election Commission and on a programme for combating corruption;
- Development of civilized relations between all political forces and an improvement in the quality of the future Deputy corps.
The respondents have different ideas about the outcome of such negotiations yet almost all concur on the need for new parliamentary, and some even presidential, elections on condition of a preliminary review and introduction of amendments to current legislation.
2. What should the President do?
One can summarize the opinions here as containing two alternative proposals, one based on compromise, the other on force.
1. The President recognizes his responsibility for the situation in the country and initiates negotiations with his political opponents. All parties return to a legal framework, making certain concessions (for example, possibly agreeing to the holding after parliamentary elections early presidential elections), ensuring enforcement of his own Decree dissolving parliament, recognizing the need for introducing amendments to the Law on the elections and rationalizing the “political reform” [the 2004 amendments to the Constitution] and reform of the system of jurisprudence, initiating a new draft Constitution through a constitutional assembly and its passing by means of referendum.
2. Imposing direct presidential rule with the possible use of force in the event of sabotage of the Constitution, specifically the non-implementation of the Decree.
3. What should the Verkhovna Rada do?
The respondents expect from the majority coalition in the Verkhovna Rada that they recognize that they are in part to blame for the situation in the country, the inevitability of early parliamentary elections and the beginning of preparations to these. They also believe they need to revoke all resolutions voted for with the cards of the majority after 2 April, make amendments to electoral law with the introduction of an electoral system of regional open candidate lists the right of individuals to put themselves forward, the rationalization after the elections of the “political reform” on the basis of agreement between the President and Prime Minister.
In fact some respondents believe that the coalition has already made all possible concessions to the President.
4. What should the Opposition do?
Most of the respondents consider that the main thing that the opposition needs to do is to demonstrate their willingness to cooperate with the other political forces. In the main this was seen as involving their return to parliament in order to work together on amendments to legislation and the passing of a law on resolving the political crisis. It can offer its own package of draft laws needed for holding new elections and provide an example of the formation of party lists openly and publicly, and also demand criminal liability for public officials who infringe electoral legislation. It should not stop putting pressure on the authorities to hold early elections.
Some respondents expressed a somewhat different attitude to the opposition, which in their opinion needs to “grow up”, “work on its mistakes”, “not interfere in the wrangles, but use the options for a legal and democratic solution to the problem”.
5. What should the Prime Minister do?
The main suggestions with regard to Viktor Yanukovychs actions centred on the need to come to an agreement with the President, as well as to ensure the running of early parliamentary elections. During the election campaign the Prime Minister should not forgot about the economy and should maintain economic stability. As the leader of the Party of the Regions, the respondents also believe that he has the duty to ensure that his party supports compromise.
6. Who else is in a position to do something and what specifically to resolve the political crisis?
Among potential parties who could constructively influence the situation, the respondents mentioned:
- The EU, PACE and Ukraines guarantor countries which can promote negotiation and guarantee the enforcement of agreements reached;
- Civic organizations and the independent media which must seek early elections and help ensure that in the new situation the country does not divide into two camps, and that the public has more opportunity to stand up for its interests and to force politicians to take it into consideration;
- Big business which finances conflicting political forces should make their own agreements between themselves;
- Specialists on constitutional law can draw up a balanced draft of amendments to the Constitution or the draft of a new Constitution;
- The Prosecutor General who can prosecute over cases of sabotage of the Constitution and laws by public officials, and the SBU [Security Service] which can pass material from criminal investigations to the court with regard to incidents of corruption by public officials, judges and political leaders.
15 May 2007
This press release was prepared by Irina Bekeshkina and Maria Didenko
The survey was carried out by Anna Zhuravyova
List of respondents
Against torture and ill-treatment
The Roots of torture lie in legislation and in entrenched practices among law enforcement agencies
On 8-9 May Ukraine presented its Fifth Periodic Report to the UN Committee against Torture on its implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [hereafter the Convention]. The Kharkiv Human Rights Protection Group presented its alternative report. Our correspondent spoke with Yevhen Zakharov, KHPG Co-Chair and Head of the Board of the Ukrainian Helsinki Human Rights Union about what prompted such a report and other issues
Could you first tell me something about the actual procedure for considering the Report?
- Each of the six basic human rights conventions has its own body which monitors adherence to the Conventions provisions. For the International Convention on Civil and Political Rights this is the UN Human Rights Committee. The International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child both have Committees with the same names. Similarly the UN Committee against Torture is responsible for monitoring and implementation of the Convention against Torture. The mechanism for this control is as follows: once every four years each Member State must prepare an official report on the measures used to implement the provisions of the Convention. In order to ensure an objective assessment, the Committee also encourages nongovernmental human rights organizations to submit their reports. It then examines them together with the Government report. Since Ukraines independence, such reports were reviewed by the. Committee in 1992, 1997, 1999, 2001, and this latest fifth will be heard on 8-9 May in Geneva at the CAT session.
Yet the Ukrainian Report was prepared back at the beginning of 2004
Yes and for that reason we decided to, shall we say, supplement it, using new studies. We consider that such an alternative report is absolutely vital since up till now the Government reports have not reflected in full the problems at issue. I would say the third and fourth reports were especially “for show”. And as for the fifth, it is extremely limited in substance since in the main it pertains to the implementation of those recommendations which the Committee against Torture made after studying the fourth report. The new Report does not take into consideration latest amendments to legislation and practical application. The Government can, in principle, give more detail to its report and expand it, however this has not, unfortunately, been done.
Even we, while in the main criticizing the Government, noted more positive moves in the legal system than in the official report.
I should also mention that, regrettably, these reports were prepared by the Government with virtually no public discussion, in secretive fashion with it not even being submitted to Deputies (MPs). Clearly recommendations of the Committee prepared on the basis of such material cannot fully respond to the whole range of problems which have accumulated in Ukrainian society with regard to these issues. At the present stage the situation has somewhat changed. The Ministry of Justice has on its website published a document relating to Ukraines report on its implementation of the European Charter for Regional or Minority Languages. Lets hope that the same will be done with other documents.
Our organization has been involved in combating torture for a long time, since 1996, and we could simply not bypass such an effective tool as these reports for drawing attention to the problem. We had already prepared alternative reports in 1997 and 2001. The present report is based on an analysis of Ukrainian legislation and its practical implementation, as well as on studies made by our organization and reports from our NGO partners. We also used press reports, material from applications to the organization and to the Centre for Professional Aid to Victims of Torture which we set up in 2003.
What are the fundamental issues focused upon in the alternative report?
I should first point out that we limited the amount of specific instances, confining ourselves to simply providing examples to illustrate particular problems. Instead we focused on a systematic analysis of the situation, since we are convinced that the problem of torture remains acute and is of a systemic nature. Its causes - are in legislation and in fixed practices among the law enforcement agencies. This essentially creates the main problem, namely the insufficient protection of the right to liberty not only of prisoners, but also of those temporarily detained and those against whom a criminal investigation is under way. This results in the use of torture being extended to broad layers of the population.
What particularly hits the eye in the data we collected is that we are receiving ever more information about ill-treatment in penal institutions. Several years ago, such information if it leaked out at all was of a once-off nature. Note that we are not talking here about an increase in such cases (they certainly dont differ greatly from the situation a year or two ago), but specifically about information coming out, i.e. we could say that there has been some kind of breakthrough in that specific information blockade.
It is precisely thanks to this that we have been able to find out that in many institutions of the State Department for the Execution of Sentences a rather cynical and brutal form of intimidation of prisoners is being used. Around once a month so-called anti-terrorist special units appear in penal colonies in full combat readiness and uniform (masks, bullet-proof vests etc). So why are they being brought in? Some of the institution staff say that its for training, other colleagues – that its to carry out searches in the cells. Both pretexts seem, to put it mildly, far-fetched. These units are well trained in fighting terrorists and rescuing hostages, not in professionally carrying out searches. We therefore hold that the legalized practice of bringing in special units is being used solely for the purpose of intimidation, psychological pressure on prisoners and maintaining order in the colony. It is clear that such a situation in no way complies with the Convention against Torture.
Since, as you put it, the information blockade in the penal system has been lifted, is it possible to say that complaints from prisoners are reaching the prosecutors office for the appropriate reaction?
Unfortunately there is almost no effective system in Ukraine for investigating allegations of torture. Although such allegations have in recent times been reaching the prosecutors office (this being the only body authorized to investigate claims of torture), there are only isolated cases where charges are laid, let alone getting a case to court. There are extremely few guilty verdicts. The prosecutors office neither wants nor has the skills to investigate allegations of torture. The use of torture therefore continues both within bodies of the Ministry of Internal Affairs and in the State Department for the Execution of Sentences. You get the impression that those officials have received some kind of blessing from the State and can do whatever they please with detainees and prisoners. They can use any means to get a confession since once a persons behind bars, s/he has become a second-class citizen even if the persons guilt has yet to be proven.
It should be said that there is a somewhat distorted idea about the right to liberty since in practice the rights of detainees are not observed. These included, for example, the right to a lawyer and to the family being notified. Access to a doctor is not stipulated by legislation at all and its hard for a person to prove later that he had arrived in the police station without physical injuries and received them there. Peoples rights are also infringed in cases of so-called unrecognized detention.
A person is detained, taken to a police station, interrogated but it is not recorded anywhere. So even if the person has been subjected to torture, it will be impossible to prove that the injuries were received specifically there since there is no record of the persons presence in the station. In effect such detentions border on disappearance, if not downright abduction.
Presumably such “know how” is applied to beat out a confession?
In fact confessions and “voluntary confessions” are a completely separate story. Yes, thats proof and useful for the investigation, but its a very dangerous instrument. Very often its achieved under considerable pressure which places its voluntary nature in doubt. We give examples in our report not only of physical, but also of psychological pressure. This problem could, in principle, be resolved by putting pen to paper and legislating a norm stating that such evidence, obtained under pressure or with the use of torture, shall not be taken into consideration by the court (as has been done, for example, in Turkey where only a confession given in court is recognized).
I mean here that we need new procedural legislation, a change in court practice, new judges who know what evidence law is and what evidence is inadmissible. With regard to the police, while not justifying their behaviour, I have to say that they act like this not because the police are brutal or some kinds of sadists, but because they simply have to solve a crime, receive evidence to punish the criminal. Another matter that they sometimes lack the patience or the ability, or they simply want to save time: one fist blow and you can avoid all kinds of routine work, like medical opinions, lengthy interrogations and investigation experiments.
Incidentally, on the subject of liability which we discussed above, at the beginning of 2005 amendments were introduced to the Criminal Code establishing liability for torture committed by officials. In the same year court practice also appeared, with 15 people being convicted of torture. Last year the number was 25. We also cite this years cases in the report (the Government report of course, for objective reasons, has none of these). One can thus say that the article of the Code has worked, and I hope that, taking head of court rulings, law enforcement officers and penal institution staff will be more careful in how they treat detainees and prisoners.
In your opinion, are the mobile groups within the MIA system contributing to the improvement in the situation with torture which you have mentioned?
Despite the fact that we are constantly criticizing the authorities and law enforcement agencies, we do feel that the police department has an awareness of the problem and is ready to take part in resolving it. One of these steps has indeed been the creation of mobile groups which check that law enforcement officers are complying with the law. We are virtually the only country in Europe where, thanks to such groups, members of NGOs have access to police stations, temporary holding facilities for detainees. The project was launched in 2004 through the efforts of the National University of Internal Affairs in Kharkiv. At present this experience has already been extended to the whole country and there is the relevant normative base. Clearly, as with all innovations, there have been organizational and staffing problems, however the main point is that the process is developing.
We are trying to achieve something similar, by the way, in the system of the Department for the Execution of Sentences. However we have already mentioned how lacking in openness this department is, and we see this here. Although such measures are of absolutely no danger (as the police have already understood), and quite on the contrary are of benefit to the police system itself, since the results of the monitoring by mobile groups go to the Minister of Internal Affairs who can assess more objectively what is happening in the police force.
With regard to court defence of victims of torture, it would here, surely, be appropriate to speak of applications by Ukrainian nationals to the European Court of Human Rights.
Last year there were eleven such judgments against Ukraine regarding torture. Our organization has filed more than 40 applications to the European Court on violations of Article 3 of the Convention and not one has been rejected. In one case a positive judgment has already been issued. 14 are presently under communication with the Government. At the same time, I would like to say that in Ukraine there are very few people able to competently prepare applications to the European Court. And that is one of the main factors for ensuring that an application is accepted for examination. In my opinion, considering the fact that clearly the number of applications is going to rise, we need to ensure that there are qualified people for preparing and accompanying such applications. The office of the Government Representative on European Court of Human Rights matters is clearly insufficient for this. Incidentally, Ukraine is already quite well represented in the makeup of the European Court – there are ten lawyers working in the Secretariat, including two previous colleagues in the Kharkiv Human Rights Protection Group. In the next few days a new judge from Ukraine will be chosen.
What, in your opinion, will be the recommendations of the Committee against Torture?
We hope that the recommendations of the UN Committee will be the same as our, that being to create a national integrated system for preventing torture, to bring criminal legislation into full compliance with the Convention, to ensure effective investigation into allegations of torture. We also need to introduce norms in Ukraine legislation stipulating the inadmissibility of any statements by people accused which were not made of their own free will, as well as to ensure control over detention in police units and to reduce the period of such detention.
In general the problem is reasonably well studied. We need only the political will to treat it with the seriousness it warrants.
The interviewer was Halyna Makarenko
Point of view
Legal commentary on the Second Presidential Decree dissolving parliament from 26 April 2007
As we know, on 2 April 2007 President Yushchenko issued Decree No. 264 “On the early termination of the powers of the Verkhovna Rada of Ukraine” which pointed to and at the same time significantly exacerbated the intense political crisis in Ukraine. It was this which prompted my first legal analysis.
Not so very much time has passed, and the President has made a second attempt to resolve the political confrontation in a legal manner. On 26 April he issued a second Decree “On the early termination of the powers of the Verkhovna Rada of Ukraine and the setting of new elections”.
This Decree No. 355 (hereafter the Decree) states: “the refusal by the Cabinet of Ministers to provide the appropriate funding, and effective inaction of the Central Election Commission make it impossible to hold the early elections to the Verkhovna Rada on 27 May 2007”. Therefore, “in order to create the proper conditions for all participants in the electoral process, and bearing in mind the fact that pursuant to Article 77 § 2 of the Constitution the date of the early elections is directly linked with the date on which the decision regarding the early termination of the powers of the Verkhovna Rada, the Presidents Decree No. 264 of 2 April 2007 ... must be considered to have lost legal force.”
It has not, furthermore, remained unnoticed that the new Decree is not merely a juridical copy of the first, legally speaking entirely inept document dissolving the Verkhovna Rada. The latest Decree not only sets a new date for the early elections, but also significantly changes the entire chain of juridical argument behind the Presidents actions.
Unlike the first attempt, the second Decree on dissolving parliament contains important references to Article 90 § 2.1 and Article 83 § 6 of the Constitution*. Both references are not only important, but also necessary since Article 106 § 1.8, which gives a list of Presidential powers, categorically and unqualifiedly affirms that the President of Ukraine shall “terminate the authority of the Verkhovna Rada of Ukraine in cases stipulated by this Constitution: (my italics – V.R.). In the juridical sense this means that the President may dissolve the Verkhovna Rada solely on the grounds of three groups of circumstances, listed in separate points of Article 90 § 2 of the Main Law. He is prohibited from behaving otherwise also by Article 19 of the Constitution.
It is precisely Articles 19 and 106 which prevent the President from dissolving the Verkhovna Rada directly on the basis of Article 102 § 2, this being the dramatic conclusion which many supporters of the President tried to argue in the national media and on the Internet. The most notable here were the analytical discussions and interviews with M. Riabchuk, B. Futey, O. Merezhko, N. Petrova, O. Severyn and F. Venislavsky.
Instead, in the Presidents new attempt, the logic behind the juridical grounds is considerably more cogent. For example, the second Decree maintains that “on 11 July, at a plenary session of the Verkhovna Rada the formation was announced of a coalition of deputy factions which included National Deputies who were not members of the factions forming the coalition. In March 2007 this practice took on a mass nature. Due to this the preconditions arose for the exercising by the President of Ukraine of his right to terminate the powers of the Verkhovna Rada early on the basis of Article 90 § 2.1 of the Constitution given that the coalition of deputy factions in the Verkhovna Rada had not been formed in accordance with Article 83 of the Ukrainian Constitution”.
Indeed, according to Article 90 § 2.1, “The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada 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;
This means that in order to comply with Article 90 § 2.1, the prior adherence by all relevant parties to the requirements of paragraphs six and seven of Article 83 is needed. Given that the norms of the Constitution often function in whole groups together, this type of juridical interrelatedness should be regarded as natural.
If we analyze the general content of Article 83 of the Constitution, it is not difficult to conclude that its norms create a constitutional institution. In the legal sense this means that individual paragraphs of the article act as independent normative guides which, although they do not have autonomous sanctions, are equipped with their own scope and conditions. Moving away from legal language, this means that the main material and procedural points related to the formation of a coalition of deputy factions in the Ukrainian parliament is fully outlined in paragraphs six and seven of Article 83.
For example, Article 83.§ 6 states that “A coalition of deputy factions comprising a majority of peoples deputies of Ukraine in the constitutional membership of the Verkhovna Rada of Ukraine 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”. Arithmetically speaking, this means that the critical number for the creation of a properly functioning faction of deputy factions is 226. Furthermore, this figure is achieved via group membership.
Article 83 § 7, in turn, stipulates that “A coalition of deputy factions in the Verkhovna Rada of Ukraine shall be formed within one month from the date of opening of the first meeting of the Verkhovna Rada of Ukraine held upon regular or extraordinary elections to the Verkhovna Rada of Ukraine or within one month after the date of termination of the activity of a coalition of deputy factions in the Verkhovna Rada of Ukraine.
From the legal point of view, it is these norms which are crucial for providing evidence and general juridical justification for the second Presidential Decree. Although Article 83 § 9 says that “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”, in fact the Constitutional Court, in judging whether the Presidents Decree was constitutional will not be guided by the Rules of Procedure, but solely by the provisions of the Ukrainian Main Law.
It thus follows from the logic of the Constitution that a coalition of deputy factions must be finally formed within a month, and its parties must exclusively be deputy factions. Furthermore, the overall number of Deputies in the factions which have decided to join the coalition cannot be less than 226. Effectively this is all that Ukraines Main Law stipulates. All else is the juridical attributes of the Rules of Procedure, that is, a statement of the will of a majority of National Deputies which does not require (since the Rules of Procedure are not a law), the official consent of the President.
Maybe it was for this reason that the Ukrainian parliament chose a free (and then unconstitutional) path for forming a coalition on the basis not only of group, but also individual membership, while extending the period of its formation indefinitely. In other words, the Verkhovna Rada, having formed an initial majority within a month, deliberately forgot after this to close the coalition doors. This step, as we know, led to permanent additions to the coalition from further – individual and group – intakes.
At first glance such practice seems reasonably innocent however its juridical subtext holds a potential risk for the political stability of the country. If one considers that the coalition is all the time functioning and permanently open, then the government which it forms is permanently open for dismissals and reappointments. Let us assume that during a particular period of time this permanently functioning and open coalition is made up of 226-227 Deputies. The government can then fall at any moment if even the smallest faction leaves the coalition.
Furthermore, if the doors to the coalition are permanently open, then is it possible to consider it formed in the juridical sense at all? That is, is it formed in the sense envisaged by paragraphs six and seven of Article 83 of the Constitution? Any increase in the coalition outside the month time frame stipulated by the Constitution for its creation shows that it is in a state of constant turbulence. After all, if one can freely join the coalition at any moment, then one can just as freely withdraw from it. The latter means that the coalition can collapse or be made up independently of the time frame set by the Main Law for its organization formation.
Although the Constitution does not say anything on this subject it would seem fitting to assume that its creators intentions were by no means so thoughtless. Whatever politicians may say on the capitals squares, a coalition which is permanently functioning and open for joining and leaving is reminiscent of a Verkhovna Rada permanently open for re-election. It is therefore logical to assume the opposite: according to the logic of the Main Law, the people vote for parliament once every five years and parliament once every five years creates, via a coalition, a government.
What is more, if the coalition is permanent and individuals can join it, they can also individually leave it. And this automatically leads to the fate of the government depending not only on the smallest coalition faction, but on any two or three National Deputies. And these can be Deputies from the makeup of the coalition, or from the opposition, i.e. from outside. Is this not a classic scenario for political blackmail? The difference between renegade Deputies in the given case will lie only in the fact that some are the participants, and others the objects of desperate political deals. If the coalition consists of 226 National Deputies, and any can join or leave whenever they please, this will mean the renewal of the Polish liberum veto in a Ukrainian variant. In todays reality, such a set up could lead to corrupt scenarios the likes of which we could never have imagined..
While the Constitution does not contain a direct prohibition on such Deputy coming and going with respect to the coalition, nor does it actually permit such moves outside the months time frame. Such permission is not envisaged ether for individual parliamentarians, or for deputy factions. As we know, on the basis of Article 19 of the Constitution, bodies of State power and their officials do not have substantial, that is, strategic freedom. The Main Law deliberately avoids giving real discretionary powers to public officials and parliamentarians.
At least a doctrinal analysis of the provisions of the Ukrainian Constitution suggests that its rationale is such. On the issue of the formation of a coalition, this logic is seen in the coalition of deputy factions being created under normal circumstances only once and exclusively within a month, after which the coalitions doors remain closed for the entire term in office of the newly-elected Verkhovna Rada. The ongoing readjustment of the coalitions ranks can take place only where the number of National Deputies has become less than 226 for natural reasons. For example, a legitimate reduction in the size of the coalition could occur not through the permitted withdrawal from its ranks of factions or individuals, but only for the reasons foreseen in Articles 81, 87 and 115 of the Constitution.
Such circumstances can arise as the result of the resignation of a National Deputy; the coming into legal force of a conviction against a specific Deputy; a Deputys being declared incapable of looking after him/herself, or missing; the suspension of the Deputys Ukrainian citizenship or his/her departure from Ukraine for permanent residence abroad; a breach in the incompatibility requirements of a Deputys mandate with other activities; withdrawal from his/her faction, as well as due to his or her death. In addition, a coalition must be re-formed as a result of the dismissal (Article 87 § 1 of the Constitution) or resignation (Article 115 § 2 of the Constitution) of the Cabinet of Ministers.
It should also be noted that under the Constitution, a coalition of deputy factions is created by the Verkhovna Rada only as a means of forming a government – the Cabinet of Ministers of Ukraine. The Main Law does not speak of any other functions or possible uses for a coalition. Of course critics of such a point of view can refer to the Rules of Procedure which give considerably more attention to the coalition, as though in this way broadening its range of possible applications. However we do not in fact know whether the Rules of Procedure in this aspect are constitutional. Although the Rules of Procedure of the Verkhovna Rada of Ukraine are not a law, on the basis of Article 150 § 1.1 of the Main Law they can also be examined as to whether they are constitutional.
Some may also point to the fact that according to Article 83 § 8 of the Constitution “A coalition of deputy factions in the Verkhovna Rada of Ukraine shall… present candidates for the Cabinet of Ministers of Ukraine”. This means, they suggest, that isolated changes of ministers in the government during the entire term of office of the Verkhovna Rada take place through the mediation of the parliamentary coalition.
However, prior to an interpretation of this point by the Constitutional Court, one can insist that isolated changes of ministers in the Cabinet of Ministers take place not on the basis of Article 83, but in accordance with Article 114 § 4 of the Constitution. The latter states that “The candidate for office of Prime Minister of Ukraine is submitted by the President of Ukraine on the suggestion of the coalition of deputy factions”, while “other members of the Cabinet of Ministers are appointed by the Verkhovna Rada upon the submission of the Prime Minister.”
There are thus grounds for considering that under the Constitution, a coalition of deputy factions submits proposals regarding the replacement of posts of “ordinary” ministers to the Prime Minister, and with regard to the post of Prime Minister – to the President of Ukraine. However even in this case there are no convincing grounds for asserting that proposals regarding individual ministers can be submitted by the coalition as well as beyond the “sixty days after the resignation of the Cabinet of Ministers of Ukraine” (Article 90 § 2.2 of the Constitution). This can suggest that outside the time frame given by the Main Law for the formation of the government, a coalition does not, in a constitutional sense, exist at all. If this be the case, then any changes in its composition beyond the time limit for its formation must be recognized as unconstitutional.
The thesis regarding a permanently functioning coalition seems extremely dubious from the point of view of Article 80 § 2 of the Main Law. If “National Deputies of Ukraine are not legally liable for the results of voting … in Parliament and in its bodies”, then what kind of coalition unity, and therefore, coalition at all, is it possible to consider?
The possibility cannot be excluded that for specially this reason the Constitution of Ukraine does not require the early resignation of the Prime Minister or Cabinet of Ministers where there has been a natural reduction (on the basis of Article 81 of the Constitution) in the number of deputies who formed a coalition below the critical level. In fact in the majority of cases a serious crisis with a parliamentary majority leads to the dismissal of the government following a vote of no confidence. However, although Article 83 § 7 of the Constitution requires that a coalition be formed not after the resignation of the government, but “within one month after the date of termination of the activity of a coalition of deputy factions in the Verkhovna Rada of Ukraine”, in fact we dont actually know whether this norm refers to termination of the activity of a permanently functioning coalition, or only to the crisis over the parliamentary majority which has arisen due to a parliamentary vote of no confidence in the Cabinet of Ministers.
One way or another, the above suggests that the second Presidential Decree creates a real intrigue for the professional activity of the Constitutional Court. In itself the content of the Decree does not predetermine a court judgment in favour of President Yushchenko, nor in favour of his opponents. However it makes it possible to build a constitutional analysis of the Presidents initiative on serious arguments pro and contra and this markedly distinguishes the present juridical position from the political situation with the first attempt by President Yushchenko to dissolve the Verkhovna Rada.
* Most of the Articles cited above can be found below. Only those relevant paragraphs are, in most cases, given.
The legal order in Ukraine is based on the principles according to which no one shall be forced to do what is not envisaged by legislation.
Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.
The powers of the peoples deputies of Ukraine shall terminate with the termination of the powers of the Verkhovna Rada of Ukraine.
The powers of a peoples deputy of Ukraine shall be subject to early termination in the event of:
1) resignation by virtue of a personal statement;
2) guilty verdict against them entering into legal force;
3) court declaring them legally incapable or missing;
4) termination of his citizenship or his departure from Ukraine for permanent residence abroad;
5) failure of the deputy to remedy the circumstances causing a breach in the incompatibility requirements of his mandate with other activities within twenty days after the commencement of such circumstances;
6) failure of the deputy elected as a member of a political party (or an electoral block of parties) to join a deputy faction of such political party (or an electoral block of parties) or the termination of the membership of such deputy in such faction;
7) his/her death. …
... A coalition of deputy factions comprising a majority of peoples deputies of Ukraine in the constitutional membership of the Verkhovna Rada of Ukraine 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.
A coalition of deputy factions in the Verkhovna Rada of Ukraine shall be formed within one month from the date of opening of the first meeting of the Verkhovna Rada of Ukraine held upon regular or extraordinary elections to the Verkhovna Rada of Ukraine or within one month after the date of termination of the activity of a coalition of deputy factions in the Verkhovna Rada of Ukraine.
A coalition of deputy factions in the Verkhovna Rada of Ukraine shall, in accordance with this Constitution, present to the President of Ukraine for his approval a candidate for the position of the Prime Minister of Ukraine as well as in accordance with this Constitution shall present candidates for the Cabinet of Ministers of Ukraine.
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.
The deputy faction of the Verkhovna Rada of Ukraine, comprising the majority of the constitutional membership of the Verkhovna Rada of Ukraine, shall have the rights of a coalition of deputy factions in the Verkhovna Rada of Ukraine envisaged by this Constitution.
… The President of Ukraine shall have the right to an early termination of powers of the Verkhovna Rada in the following cases:
the Verkhovna Rada of Ukraine fails to form a coalition of deputy factions in compliance with Article 83 of this Constitution within one month;
no new Cabinet of Ministers of Ukraine has been formed within sixty days after the resignation of the Cabinet of Ministers of Ukraine ;
plenary sessions fail to commence within thirty days of a single regular session.
A decision on an early termination of the powers of the Verkhovna Rada of Ukraine shall be taken by the President of Ukraine upon consultations with the Chairman of the Verkhovna Rada of Ukraine, vice-chairmen, and leaders of deputy factions in the Verkhovna Rada of Ukraine.
The powers of the Verkhovna Rada of Ukraine elected at extraordinary elections held after the early termination of powers of the Verkhovna Rada of Ukraine of the previous convocation by the President of Ukraine shall not be terminated within one year from the date of its election.
The powers of the Verkhovna Rada of Ukraine may not be subject to an early termination at the initiative of the President of Ukraine within the last six months of the term of powers of the Verkhovna Rada of Ukraine or the President of Ukraine.
The President of Ukraine shall:
ensure the independence, national security, and legal succession of the State; …
designate extraordinary elections to the Verkhovna Rada of Ukraine within the period determined by this Constitution;
terminate the authority of the Verkhovna Rada of Ukraine in cases stipulated by this Constitution;
submit, on the basis of a proposal made by the coalition of deputy factions in the Verkhovna Rada of Ukraine, formed in compliance with Article 83 of the Constitution of Ukraine, the proposal regarding the appointment by the Verkhovna Rada of Ukraine of the Prime Minister of Ukraine within fifteen days after a receipt of such proposal; …
revoke acts of the Cabinet of Ministers of Ukraine on the ground of their non-compliance with this Constitution and simultaneously appeal to the Constitutional Court of Ukraine for the verification of the constitutionality of such acts;
… appoint and remove from the office one-third of the membership of the Constitutional Court of Ukraine;
… exercise other powers determined by the Constitution of Ukraine.
The President of Ukraine shall not delegate his powers to other persons or bodies.
The President of Ukraine shall issue decrees and directives mandatory for the execution on the territory of Ukraine on the basis and in pursuance of the Constitution and laws of Ukraine.
Victims of political repression
Work on the National Historical Memorial Reserve “Bykivnya Graves” is being sabotaged
The Kyiv city organization of the Vasyl Stus Memorial Society has addressed an appeal to President Yushchenko over sabotage of measures to develop and run the National Reserve “Bykivnya Graves”.
Civic society in Ukraine has observed with concern and indignation how the executive structures under the Cabinet of Ministers and Kyiv City State Administration have responded with pointed indifference to the Cabinet of Ministers Resolution “On the creation of a National Historical Memorial Reserve “Bykivnya Graves” and the Presidential Decree “On giving the Reserve national status”.
For over 6 years there have been official letters and senseless meetings which have simply pushed the implementation of the Resolution and Decree further into a dead end.
Meanwhile, the State Inter-departmental Commission on Honouring the Memory of the Victims of the War and Political Repression (chaired by Deputy Prime Minister Dmytro Tabachnyk), without gaining the proper permission and without reinstating the criminal case according to the place of the crime, and with disregard for the Law “On the protection of cultural heritage”, has been carrying out unsanctioned excavations, resulting in attempts to divide the victims buried at Bykivnya according to nationality.
The executive authorities are, through their selective attitude to the victims of repression, dividing them into better and worse, into “ours” and “not ours”. Yet another place where a terrible crime was perpetrated – Babi Yar – has finally, though a Cabinet of Ministers Resolution No. 308 from 1 March 2007, been declared a National Reserve Area. From 1 January an advance is even envisaged of 1.2 million UAH for its directorate.
We fully endorse the creation of a National Reserve Area Babi Yar.
It causes pain, however, and incomprehension to see how the treatment of the National Reserves of “Bykivnya Graves” and Babi Yar is different. After all, both hold the remains of thousands of people. In both Babi Yar and in Bykivnya Ukrainians, Jews, Russians, Poles, Roma, and people of other nationalities were brutally slaughtered.
Is it now becoming the practice of those in power to divide not only Ukraine, the people of Ukraine into “ours” and “not ours” but also murdered victims into better and worse?
In deep concern over such disrespect for tens of thousands of innocent victims, we turn to you Mr President, and ask for your intervention in finally resolving the problems around the National Historical Memorial Reserve “Bykivnya Graves”.
Adopted at the Memorial Societys Conference on 26 May 2007
Remembrance Day for the Victims of Communist Repression in the Bykivnya Forest
At 12.00 on Sunday 20 May a memorial gathering will take place to honour the Victims of Communist Repression buried in the “Bykivnya Graves” near Kyiv
At 12.00 a Requiem Service [panykhida] will be held by Church leaders near the common graves, followed from 13.00 to 14.00 by a gathering to honour the memory of all those victims whose remains lie buried in this forest.
Transport: from the metro station “Lisova” – 4 buses will be available for those wishing to attend the memorial events. Return will be between 14.00 and 16.00
The Bykivnya Forest holds the last earthly remains of victims of the communist regime. It is believed that 150 thousand people were buried there.
The burials date from 1937 to 1941 however there are also victims killed by the Bolsheviks from the end of the 1920s. The number of victims is so great that two or three victims lie buried on each square metre of the territory. Up to half of those buried were executed in the modern “Kinopalats” [“Cinema Palace”, which is the former Zhovtnevy [October] Palats, the premises of the NKVD].
Those attending the annual gathering of remembrance include people whose relatives lie buried in this place, as well as others whose relatives are buried in Siberia or Mordova. There are also many who to this day do not know where those graves lie.
The Chair of the Kyiv Vasyl Stus “Memorial” Society Roman Krutsyk believes that the “Bykivnya Graves are important not only for the relatives of the Victims, but for the nation as a whole – for “the dead, the living and those not yet born”.
“It is the duty of each Ukrainian to remember the terrible crimes committed by the occupation regime against the Ukrainian people”.
The memorial gathering is initiated by the Kyiv Vasyl Stus “Memorial” Society. Youth patriotic organizations are taking part in organizing the memorial events, as well as representatives of the central and local authorities. Over several years Viktor Yushchenko has attended the ceremonies. In 2002 Pope John Paul II visited the “Bykivnya Graves.
If not now then never …
The ninetieth anniversary of the October Revolution this year will doubtless rouse the usual press attention, Kremlin ambivalence and marches by largely elderly stalwarts through many cities of the former USSR.
The other anniversaries are, after all, too personal, too anonymous and for those concerned about their “ratings” altogether too uncomfortable.
But for those of us who have no graves and no photographs only the legally established right to read the yellowing pages of an NKVD “Sprava [File] our own “round dates” turn that other anniversary to bitter ash.
It is seventy years since the unfurling of a campaign of arrests, farcical trials and executions which historians call the Great Terror. In countries of the former Soviet Union, however, a name will long remain redundant – all is encapsulated in the words Nineteen Thirty Seven..
A lot has been written about the Great Terror, including the recent publication from Memorial http://khpg.org/en/1175776132 .I have nothing to add, neither wise thoughts nor compelling explanations.
In fact, I have nothing at all, except the aching need to articulate questions. Some of these are indeed too personal for public airing. One, however, is not.
Throughout Ukraine, Russia and all the other republics ravaged by torrents of frenzied hatred and killing, there are unknown or unmarked mass graves. In this year, so seeped in terrible anniversaries, is it not time to seriously speak of ensuring that our parents and grandparents are remembered, that the earth which bears their remains is honoured?
There is a survey on the Ukrainian Memorial site (www.memorial.kiev.ua ). One question only: do we need to seek the truth? Not surprisingly there is no controversy, with 100% support for such efforts. Yet why do we Ukrainians do so little to seek that truth? Why is the recently created Institute of National Remembrance still not receiving the support it needs?
Survivor of Oświęcim [Auschwitz] Primo Levi wrote in “If Not Now, When?” the harrowing question:
A man enters his house and hangs up his clothes and his memories; where do you hang your memories, Mendel, son of Nachman?
And where will we hang ours, if we continue to allow comfortable oblivion to reign?
I believe it is imperative that we all seek the truth together, that we share in building a truly Ukrainian Institute of National Remembrance.. This could be through tending to memorial sites or through looking for mass graves. It may be by raising awareness in society, lobbying politicians or raising money for real measures to honour and perpetuate the memory of all those brutally slaughtered.
There are so many ways. With time, however, we have infinitely less scope.
If not now then never.
In Memory of the Victims
Ceremonies will be held today and tomorrow in Simferopol and throughout the Crimea to honour the Victims of the mass deportation.
Wreaths will be laid today, 17 May by representatives of the authorities. In the evening an action entitled “Light a candle in your heart” will be held, with those attending lighting candles in memory of the victims of the terrible crime.
A requiem gathering is planned for Friday on the central square in Simferopol.
News from the CIS countries
Katyń: Moscow City Court refuses to grant “Memorial” the right of app
This is already the second court which has rejected “Memorial”s right to a court appeal against the decision of the Chief Military Prosecutors Office of the Russian Federation which has refused to consider applications for rehabilitation of the victims of the Katyń Massacre.
Since May 2006 the International Society “Memorial” has been seeking recognition that the Polish prisoners of war and prisoners executed without trial by the NKVD in April and May 1940 on the decision of the Soviet Politburo on 5 March 1940 were victims of political repression.
At the first stage applications were sent to the Chief Military Prosecutors Office calling for the rehabilitation of 16 people – Polish prisoners of the Kozielsk and Ostashkovsk Prisoner of War Camps, shot in Katyń, near Smolensk and in Kalinin (now Tver).
In ten letters from 7 November 2006 the Chief Military Prosecutors Office [CMPO] refused to consider the substance of these applications. On 6 February “Memorial” filed ten applications to have the answers from the CMPO declared unlawful with the Khamovnychesky District Court in Moscow. “Memorial” asked that the court order CMPO to comply with the Law of the RF “On the rehabilitation of victims of political repression”, by either issuing rehabilitation documentation or drawing up a conclusion on their refusal to grant this and to send it to the court, as required by Article 8 of the Law.
Over three days on 15, 16 and 19 February 2007, the Khamovnychesky District Court turned down these applications..
On 9 March 2007 “Memorial” lodged ten private appeals against this ruling with the Moscow City Court.
On 22 May 2007 the court panel on civil cases of the cassation section of the Moscow City Court, made up of presiding judge Irina Aleksandrovna Ionova, and judges Yelena Andreyevna Braginskaya and Dmityry Mikhailovich Kharitonov (reporting judge) examined and rejected “Memorial”s appeals.
The Moscow City Court judges thus confirmed the position taken by the Khamovnychesky District Court, this being that the International Society “Memorial”, being a civic organization, while having the right to apply to State bodies to have individuals declared victims of political repression, does not have the right to appeal through the courts against refusals to grant such applications!
“Memorial” is convinced that this position is in contravention of Article 46 of the Russian Federation Constitution which stipulates the right to a court appeal against the decisions and actions (inaction) of the State authorities and public officials.
This right is enjoyed by civic associations as the Constitutional Court has on several occasions confirmed.
See the links below for more information about the Katyń Massacre and the position taken by the