“Prava Ludiny” (human rights) monthly bulletin, 2010, #10
KHPG: On the Outcome of the Mayoral Elections in Kharkiv (updated) 2010 Local Elections – Manipulation rife Politics and human rights
Call upon Ukraine to stop harassment and repressions of human rights defenders, journalists and academics The Constitutional Amendments and their Cancellation: Ukraine’s Democracy at the Crossroads Commentary on the Constitutional Court Judgment of 30 September 2010 Freedom of expression
UHHRU: Stop persecution of human rights activists! Access to information
Absurdity and Reality
KHPG: On the Outcome of the Mayoral Elections in Kharkiv (updated)
The Kharkiv Human Rights Group considers the announcement of the results of the elections for Kharkiv Mayor to be hasty and premature. This is in view of how the results of the vote count by territorial electoral commissions [TEC] is taking place in a situation where two candidates – Arsen Avakov and Hennady Kernes – have gained a similar number of votes and where even small mistakes in the counting could influence the final outcome. This is demonstrated by the following facts.
During the examination by the TEC of protocols and other electoral documents from the precinct electoral commissions [PEC] it transpired that at some polling stations there had been delay in stamping as withdrawn the name of a person (A. Denysenko) who had opted out of the mayoral race five days before the elections. At some polling stations the commissions did not even know that Denysenko was not standing and did not stamp him as withdrawn, counted the votes and handed the protocols to the TEC. At some polling stations all ballot papers without the stamp “withdrawn” were declared void. For example, at polling station No. 30054 there were 654 such papers, and at No. 30070 – 418. There were more than 9000 spoiled ballot papers at all polling stations, and one can say with certainty that it was the TEC that were to blame for those votes declared void because they didn’t have the withdrawn stamp on them. Four days was entirely sufficiently to inform all PEC about this. In our opinion the people who came to the polling station and used these ballot papers were quite unfairly and unlawfully deprived of their right to vote, and we are convinced that the TEC was obliged to apply the law in the same way everywhere and examine invalidated ballot papers at all polling stations.
Packets with electoral documentation being transported from some PEC to the TEC were damaged. The fact that some of the packages were not intact aroused suspicion and an application for a recount at 56 polling stations. The TEC did not, however, adopt the necessary decision.
The TEC did not accept protocols from a number of polling stations and returned them for clarification, at some polling stations – for a recount. In general drawing up corrected protocols because of minor errors during the vote count is normal. However in the given instance one is disturbed by the secrecy of the process with the corrected protocols not even being given to members of the TEC. The results from them were not announced, observers from political parties and journalists did not have access to the stage where the commission was seated, and the examination of the final 11 protocols on 4 November took place entirely behind closed doors. The TEC passed a decision to remove everybody from the hall. There were cases where the TEC called the head of a commission who rewrote the protocol right in the TEC premises and put the stamp on it.
In breach of the law, the TEC decided that the results of the election should be counted by technical staff of the city executive committee and members of the TEC were simply not allowed to take part in this process. They were not even permitted to look at the results on the computer. It is unclear what computer programmes were used. The members of the TEC thus approved a protocol on the results of the voting, effectively not knowing how the information they voted for had been formulated. 5 members of the TEC were in any case absent.
The TEC has still not managed to examine 190 complaints alleging electoral infringements, and from 10 PEC where the TEC had previously ordered a recount, only one has provided the results of this recount. Nonetheless, the TEC has turned the page on an as yet incomplete process.
We have presented only some of the cases we are aware of which influence the outcome, and have not touched on numerous violations of the Law on the Local Elections where it is not possible to draw conclusions about their direct influence on the results of the voting. There were a huge number of such violations detected by observers and representatives of political parties in the very process of voting at polling stations; during the vote count at polling stations, the transporting of the ballot papers to the TEC, during the work of the TEC. Superfluous protocols were found, there were cases where members of the PEC signed blank protocols; electoral documents from electoral precincts were packed in the premises of the TEC without the participation of members of the PEC; the mandatory details on the packages with electoral documentation handed to the TEC were missing; the votes were counted and protocols drawn up by members of a PEC from one political party only; there was no substantive examination of fairly numerous complaints regarding violations of the electoral law.
Taking into account these facts, the results of the elections in Kharkiv cannot be recognized. There must, at very least, be a detailed analysis of the spoiled ballot papers at all polling stations and a recount at polling stations where corrected protocols were drawn up. However given the excessive number of infringements, the best solution, in our view, would be to hold a rerun of the Kharkiv Mayor Election.
Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group
2010 Local Elections – Manipulation rife
Andriy Kohut from the Civic Assembly of Ukraine reports that the parties in power are building their election campaign with the use of administrative resources and methods involving the enforcement and regulatory bodies. Arrests’ the initiating of criminal investigations; or raids by the tax police or Control and Audit Department [KRU] make it possible given the short duration of the election campaign to quickly deal with opponents.
However Kohut says that the main manipulative techniques are based on the use of administrative resources, enabling favoured candidates to get a head start and discrediting opponents.
The civic network OPORA also reports a shift away from standard “black PR” to the use of administrative resources to combine provocation with denigrating rivals, including through initiating criminal investigations, charges of bribe-taking etc.
At present there are prominent “anti-corruption cases” in many cities with criminal investigations being initiated, arrests, confiscations from candidates, often from opposition parties, with high rating.
Kohut mentions the following trends during this election campaign:
1. Discrediting opponents through the enforcement agencies
He mentions the use of the Ministry of Internal Affairs [MIA], the prosecutor’s office, courts at various levels, the Control and Audit Department, and the tax police.
More information about one such case – in Kamianets-Podilsky - where the local population is protesting over the arrest of their Mayor can be found at: http://khpg.org/en/1286191022
2. Receiving first positions in the candidate list
As reported here already, the law on the local elections brought in so hurriedly this year changes the normal system where positions are through a draw. Now it’s first come, first served. This has led to fiddling with a chosen party being informed of the place of registration. If another party managed to get in first, they had their papers returned for clarification, or their registration was cancelled.
More information here: http://khpg.org/en/1286493227
3. Formation of the election precincts to suit “the right candidates”
There can be fiddling of the number of voters in a precinct. There is a considerable difference in the number of voters at different polling areas with representation and the possibility of being elected accordingly unequal. There are examples where for the same council, there are precincts with 4 thousand voters and 30 thousand. Obviously it’s much easier to have a campaign with only 4 thousand.
4. Fiddling of territorial coverage of polling areas in order to lower voter turn out
Buildings within one polling area are very far removed from each other, with voters being forced on Election Day to look for a polling station which will significantly reduce the turn out. This is applied where there is a low level of support for the “right” candidate.
5 Meetings and appeals by “labour collectives” in support of candidates
Meetings either set up or non-existent supposedly resulting in support for certain candidates with this being reported in the media.
6. Pressure on the editorial policy of municipal media outlets
The local leadership, instead of the notorious instructions by telephone of the past are trying to make “official” proposals which can’t be refused. For example, they demand “standard agreements” obliging the editors of publications to give written notification of any change in their political views, membership of political parties or civic organizations.
More information about this and similar methods can be found at No Room for Democracy? here http://khpg.org/en/1285771187
Andriy Kohut’s report was published at: http://human-rights.unian.net/ukr/detail/195226
Politics and human rights
Call upon Ukraine to stop harassment and repressions of human rights defenders, journalists and academics
President of Ukraine, Mr. Viktor Yanukovych
Minister of Internal Affairs, Mr. Anatoly Mohylóv
Chairman of the Verkhovna Rada, Mr. Volodymyr Lytvyn
28 October 2010
Call upon Ukraine to stop harassment and repressions of human rights defenders, journalists and academics
We, the undersigned organisations, are deeply concerned about the increased repressions of human rights defenders, journalists and academics in Ukraine and call upon the Ukrainian authorities to respect their international human rights obligations.
On 8 September 2010, Ruslan Zabily, Ukrainian historian Head of the National Memorial Museum of Victims of the Occupation Regimes Tyurma na Lonskoho in Lviv, was arrested by six Security Service officers and taken to the Service´s premises. The officers did not introduce themselves to Mr. Zabily and he was not informed of the reasons of his detention nor the charges against him. While detained, he was not granted access to his lawyer. His personal computer containing historical material and academic research was confiscated, the information declared constituting a state secret and criminal investigation initiated.
On 14 September 2010, Dementiy Bily, Ukrainian journalist and Head of the Kherson Regional Branch of the Committee of Voters of Ukraine (member of the Ukrainian Helsinki Human Rights Union), was assaulted and beaten up by 2 unidentified persons. The assault happened during the presentation of the report of the City Mayor Volodymyr Saldo, where Mr. Bily was not allowed to enter the hall by security guards. The presentation was a closed event. After being admitted access, Mr. Bily was shown out from the hall as he called to allow voters, opposition deputies and other journalists to take part in the presentation. The Prosecutor’s Office has initiated a criminal investigation of the assault. However, the Prosecutor is refusing to launch an investigation under Article 171 of the Criminal Code, namely obstructing journalists in the course of their legitimate professional activities.
On 14 October 2010, Oleksiy Verentsov, Ukrainian lawyer and human rights defender – leader of local human rights NGO “Vartovi zakonu” (Guards of the Law) and his colleague Ihor Tanyachkevych, were arrested after organising a peaceful demonstration in front of the Regional Prosecutor Office in Lviv, calling for proper investigation of criminal cases. He was charged with violations of the rules of organising demonstrations (Article 185 and 185-1 of the Code of Ukraine on Administrative Offences), namely disregard of lawful instructions of a police officer to cease the demonstration in absence of a permit whereas under Article 39 of the Ukrainian Constitution a permit is not required for peaceful demonstrations. During the court hearing of his case in Halytsky District Court in Lviv, Oleksiy Verentsov’s and Ihor Tanychkevych’s lawyer was not granted access to the courtroom and the witnesses were not interrogated.
At 11pm of 15 October 2010, the police raided the office of Vinnitsa Human Rights Group without a court order, which is required under Article 8 of the European Convention. Financial reports, confidential information about the clients and refugee cases and written confidential communication between the Vinnitsa Human Rights Group and the European Court on Human Rights regarding the cases Kulik v. Ukraine, Zabolotni v. Ukraine, and Aleksei Makarov v. Ukraine were among the documents and materials that were confiscated during the raid.
The above-mentioned cases are the most recent illustrations of recurring and ongoing threats, intimidation, harassment and violence against human rights defenders, journalists, and academics in Ukraine.
Concerned about the situation, we call upon the Ukrainian authorities:
· to conform with all provisions of the European Convention on Human Rights (ECHR) and the International Covenant of Civil and Political Rights (ICCPR) to which Ukraine is a State party, especially to respect and ensure the right to peaceful assembly (Article 11 ECHR and Article 21 ICCPR), the right to freedom of expression (Article 10 ECHR and Article 19 ICCPR), and right to fair trial (Article 6 ECHR and Article 14 ICCPR).
· to comply with all the provisions of the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (also called the Declaration on Human Rights Defenders).
· to take all necessary measures to prevent harassment, threats and violence against human rights defenders, journalists and academics
· to conduct an immediate, thorough and objective investigation of the abovementioned cases and bring those responsible for the attacks to justice.
· to gather civil society organisations, international governmental organisations represented in Ukraine, and other stakeholders to discuss and adopt concrete policies to fulfil Ukraine’s international commitments, especially those recommendations made at the Human Rights Councils Universal Periodic Review in May 2008, and other international obligations, especially the recommendations made by United Nations treaty bodies.
Ukrainian Helsinki Human Rights Union
Belarusian Human Rights House in exile in Vilnius, Lithuania
Russian Research Center for Human Rights (on behalf of the following NGOs):
- Human Rights Network Group
- Independent Psychiatric Association of Russia
- Moscow Centre for Prison Reform
- Moscow Helsinki Group
- Mothers Right Foundation
- Non-violence International
- Right of the Child
- Right to Live and have Civil Dignity
- Social Partnership Foundation
- Union of the Committees of Soldiers Mothers of Russia
Youth Human Rights Movement (Russia)
Human Rights House Baku (on behalf of the following NGOs):
- Women’s Association for Rational Development (WARD)
- Association for the Protection of Women s Rights in Azerbaijan after D. Aliyeva
- Legal Education Society
- Media Rights Institute
- Society for Humanitarian Research
Human Rights House Tbilisi (on behalf of the following NGOs):
- The Human Rights Center (HRIDC)
- Article 42 of the Constitution
- The Georgian Center for Psychosocial and Medical Rehabilitation of Torture Victims (GCRT)
- Union ‘Saphari’ – Family Without Violence
- The Caucasian Center for Human Rights and Conflict Studies (CAUCASIA)
The Helsinki Association (Armenia)
Shahkhatun-Political Prisoners Wives (Armenia)
Human Rights House Sarajevo (on behalf of the following NGOs):
- Association of Female Citizens "Renaissance"
- Foundation CURE
- Helsinki Committee for Human Rights in Bosnia and Herzegovina
- Regional Co-ordinator for Youth Groups
- Serb Civic Council - Movement for Equality - The Council of the Sarajevo Canton
- Woman and Society Centre
Human Rights House Zagreb (on behalf of):
- Centre for Peace Studies
- Civic Committee for Human Rights
- Documenta – dealing with the past
- UPIM - Equal Opportunities
- Svitanje - mental health
Open Word House (on behalf of the following NGOs):
- PEN International
- Writers in Prison Committee
- Article 19
Helsinki Foundation for Human Rights (Poland)
The Norwegian Human Rights House (on behalf of the following NGOs):
- Human Rights House Foundation
- Norwegian Helsinki Committee
- Health and Human Rights Info
Copies have been sent to:
Directorate General of Human Rights and Legal Affairs of the Council of Europe, Strasbourg
Office of the Commissioner for Human Rights of the Council of Europe, Strasbourg
UN Special Rapporteur on the Situation of Human Rights Defenders, Geneva
UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Geneva
UN Special Rapporteur on the Independence of Judges and Lawyers, Geneva
The Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe, Warsaw
State representations in Ukraine
About the Human Rights House Network (www.humanrightshouse.org)
The Human Rights House Network is a forum of cooperation between established and emerging Human Rights Houses, uniting 70 NGOs in 15 countries in Western Balkans, Eastern Europe and South Caucasus, East and Horn of Africa, and Western Europe. HRHN´s aim is to protect, strengthen and support human rights defenders and their organizations.
The Constitutional Amendments and their Cancellation: Ukraine’s Democracy at the Crossroads
The 2004 Constitutional reform was supposed to put Ukraine out of political and economic crisis, promote its continued democratic progress. Yet due to a number of subjective and objective factors, there was no success in enjoying the advantages of a parliamentary-presidential form of government. Moreover, the level of governability of political, economic and social processes fell significantly, resulting in the continuing escalation of negative trends in the country. It is worth noting that this was caused not only be the constitutional amendments themselves, but by incorrect implementation of the relevant constitutional processions; a lack of understanding of the essence of the amendments; a low level of understanding of the main achievements of the Constitutional reform; incomplete constitutional transformations; and mainly a lack of political will. There were also many other reasons.
The Constitutional amendments presented considerable opportunity for further political structurialization, in particular of parliament and was supposed to promote the structuralization of all of society which could have led to the formation of a mechanism for real political competition, the fight between different programmes, ideas, views, appeals to setting the strategic directions for the further development of the country and society and for ensuring development of democratic transformation. In addition, the formation of a government through a coalition of deputy factions was intended to increase the level of political responsibility of both the Cabinet of Ministers and of parliament. The Verkhovna Rada, having formed the Cabinet of Ministers, was supposed to concern itself with heightening the level of legislative provisions and work more closely with it.
However the cooperation between legislative and executive branches of power, as well as the Head of State, was seriously weakened, and in some areas even negated. This was due to a number of causes, among which we should mention the main failings of the Constitutional reform: artificial “denigrating” of the role of the Head of State in the mechanism for appointing the Prime Minister and formation of the government to one which was purely technical (in view of his election by the people this seemed at very least illogical); the “dualism” of executive power which led to some of the ministers and bodies of the Executive orienting themselves on the Prime Ministers, while others on the President; the weakening of guarantees of independence of judges of the Constitutional Court leading to an excessive politicization of the situation around the single body of constitutional jurisdiction; and others.
In our view, the main drawback of the Constitutional reform was its failure to adequately reflect the real multiparty and politically diverse situation
Both parliamentary and parliamentary-presidential systems can only function effectively where there are real and developed political parties. However Ukraine received to a large extent imitation of freedom of political activity, the lack of internal party democracy (this is evidenced by the long-standing lack of change among party leadership of many parties, the adoption of party decisions and formation of candidate lists by some leaders either by themselves or with some close associates, that is, with violations of democratic procedure, etc).
Attempts to move the main accent in responsibility for the state of affairs in the country specifically onto parliament was, from the outset, doomed. In the absence of internal party democracy in the majority of parliamentary parties and the dictate of certain party functionaries (when one or a few individuals effectively replace collective decisions), where there is only simulation of discussion, polemic and choice, and conformism, formalism and demagogy dominate, one can say without exaggeration that there are no real political parties in Ukraine. The lack of such parties renders impossible the effective functioning of a parliamentary, or even a parliamentary-presidential republic. Nor, a priori, are those politicians used to ruling their political force by non-democratic means able to carry out democratic transformations on a nationwide scale. There are thus all grounds for stating that given the reality in Ukraine and the present political and legal level of culture, any improvement of the above-mentioned constitutional model even given clear and full separation of functions, powers and spheres of jurisdiction within a parliamentary-presidential (or parliamentary) republic, has little projects for success. And this will be the same until such time as we see a system of internal party democracy based on real choice and periodic change of its leading bodies, as well as collective adoption of the most important party decisions.
It is clear that under such conditions one cannot hope to enjoy all the advantages of a parliamentary form of government which with a distorted “democratic component” of the political system has proved ineffective and helpless.
Therefore, even if the procedure established in 2004 for introducing constitutional amendments had been adhered to, and a more successful and detailed legal mechanism for interaction between State bodies of power had been devised, together with a full and clear divide of their powers, the chosen model could have hardly ensure the proper functioning of the State apparatus and made it possible for the Ukrainian political elite to fully enjoy the advantages of a parliamentary-presidential form of government.
On 1 October 2010 the Constitutional Court announced its 30 September Judgment regarding observance of procedure in making amendments to the Constitution. According to Item 1 it found “not compliant with Ukraine’s Constitution (unconstitutional) the Law of Ukraine “On amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV in connection with infringements of constitutional procedure for its review and adoption”. The Constitutional Court had sufficient legal grounds for passing such a Judgment. Violation of the fairly complex, yet democratic, procedure for making amendments to the Constitution could not and should not remain unnoticed by both institutions of civic society (including specialists), and the sole body of constitutional jurisdiction, since one cannot indeed build a truly democratic state, violating democratic principles and democratic procedures. However civic society fairly rapidly forgave those in power for so foisting the Constitutional reform, and the Constitutional Court demonstrated a certain lack of consistency, once already refusing to initiate proceedings in response to a constitutional submission from 102 National Deputies regarding the constitutionality of the Law on Constitutional reform from 2004. This was its Judgment from 5 February 2008, No. 6/2008, yet soon, as though having come out of hibernation, it initiated proceedings on observance of procedure for making amendments to the Constitution.
According to Item 2 of the Judgment from 30 September 2010, the Law on Constitutional reform from 2004, No. 2222-IV, having been declared unconstitutional, loses force on the day that the Constitutional Court passed its Judgment. Such an approach, and specifically such logic, is determined by the requirements of Article 152 § 2 of the Constitution according to which “Laws and other legal acts, or their separate provisions, that are deemed to be unconstitutional, lose legal force from the day the Constitutional Court of Ukraine adopts the decision on their unconstitutionality”.
This provision should be understood as meaning that from this day all bodies of State power and their officers (including high-ranking ones) should act in accordance with those powers which the first version of the Constitution (before the 2004 amendments) gave them. With this it should be understood that all the above-mentioned bodies and officials are legitimate since they were formed (or elected, appointed) according to procedure specified by the version of the Constitution current at that time and in accordance with current legislation. For example, the Verkhovna Rada elected on 30 September 2007 is a legitimate body. Since the term of office of the Verkhovna Rada as set out in Article 76 of the initial (first) version of the Constitution is 4 years, then this requirement should extend to the Verkhovna Rada presently in office. References by some politicians and specialists to the experience of 1996 when, after the Constitution was passed, both parliament and the Head of the State continued to carry out their powers, seem not quite correct and unacceptable. The present situation is radically different. Firstly, the terms of office of the Verkhovna Rada and the President, envisaged by the Constitution on the day that it was adopted in 1996, totally corresponded with the periods they had been elected for in 1994. Secondly, in the Transitional Provisions the year and month for holding regular parliamentary and presidential elections were stated. At present there are no, and should be no transitional provisions, and the term of office for parliament before and after the cancellation of the constitutional amendments do not coincide.
The Cabinet of Ministers is similarly legitimate. However after the Law On amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV was declared unconstitutional and revoked, the appointment of its new makeup should be in accord with procedure set out in the 1996 Constitution. That is, if on 29 September 2010, the President did not have the right to terminate the powers of the Prime Minister, and could only initiate consideration by the Verkhovna Rada of the Cabinet of Ministers’s responsibility (according to Article 87 § 1 of the Constitution with the 2004 amendments), after the Constitutional Court’s Judgment, the Head of State can without even any consultation, at his own discretion, terminate the powers of the Prime Minister and take the decision to dismiss him. In that case, the entire Cabinet of Ministers should resign. And the President, after accepting their resignation, should instruct it to carry out its duties until a new Cabinet of Ministers is formed.
At the same time, if up till 30 September 2010, the President had the right to not only appoint a third of the judges of the Constitutional Court, but also to dismiss them, after the Judgment, the President may no longer dismiss them (Article 85 § 22.1 of the Constitution).
In view of the Judgment declaring Law no. 2222-IV from 8 December 2004 unconstitutional, several problems could arise, mainly with regard to setting the date for the next regular parliamentary elections since the Constitution in the 1996 version envisages that regular parliamentary elections must take place in the last week of March, and of the Head of State – in the last week of October. Literal implementation of these norms could lead to an extension (or a reduction) in the term of office of state bodies. If parliamentary elections are held in March 2011, then parliament’s term of office on Election Day will be only three years and four months. If they are held in March 2012, then they will have been in office for four years and four months by Election Day. And as well, experience shows that a certain amount of time is needed for counting the votes and establishing the outcome, officially publishing this, as well as for calling the first plenary session of the new Verkhovna Rada and swearing in newly-elected National Deputies. There would therefore be another month and a half or two months, making the National Deputies’ term in office around four and a half years. Furthermore, if one follows the logic of those who consider that for the parliamentary elections an exception should be made from the now current Constitution since the National Deputies were elected for 5 years, would the elections in March 2012 then be too early?
In general one should be extremely careful when making any exceptions from an overall rule in law. Removing or suspending the force of even one constitutional norm with regard to a certain category of subjects or circle of individuals (as the Constitutional Court unfortunately did in its first Judgment of 13 May 1997) is unacceptable and even dangerous since it poses a serious threat to the affirmation of democracy and democratic achievements in Ukraine. The issues around the terms of office and elections are rather complex and equivocal, after all it turns out that the parliamentarians with the carrying out of the Constitutional reform extended their term of office and in that way gave a lesson of sorts to their successors for the future. If we model a situation whereby the Deputies again pass amendments to the Constitution with infringements, extend their term in office, for example, to 25 years (or life), then if the amendments are changed because of violation of procedure, then this will still not affect the Deputies since they created a precedent which boils down to the Constitution supposedly not applying to the terms of office of those in power. There will probably be those willing to name such a precedent constitutional custom or those who will assert that the norm about a twenty-five year term of office has already become the so-called “body of the Constitution”, has come into force, was used in practice, that there is no need to review elections held according to that norm.
Maybe this entire reform was started for the sake of extending terms in office? Was that not maybe a “political bone” for parliamentarians to make them swallow the political reform (the 2004 amendments)? Yet experts even then pointed out that it was unacceptable to increase the terms of office since that meant a significant (one quarter!) reduction in the possibility of voters to control those in power, political parties and their leaders through the election procedure, and thus force them in this way to answer for their mistakes. After all political responsibility in a democratic regime is based mainly not on fine-sounding statements but on the refusal of voters to voter for certain political forces, stripping them of political trust specifically through elections.
In this case they find themselves pushed to the sideline of the political process and have the possibility to reflect and work on their mistakes. This was the fate of the socialists at the parliamentary elections in 2007 who, largely because of the “political pirouettes” of its leader did not get into parliament (The Socialists, led by Oleksandr Moroz, unexpectedly changed sides, creating a coalition with the Party of the Regions and the Communist Party – translator).
Following the introduction of the 2004 amendments, the possibilities for controlling parties and blocs not only did not increase, but were even reduced (after all you could only elect National Deputies and thus influence their activities every five years instead of every four). Yet, having rejected the constitutional amendments, the public are being asked to not only not slam parliamentarians and the initiators of dubious innovations but to pat them on the back and encourage the next ill-considered steps through a “bonus” in the form of an additional year in office. With such an approach, the faulty conclusion becomes possible that the Constitution renewed its force in its initial form, but not for all and not immediately. The oh so esteemed Parliamentarians “have done so much for society and the state”, that they should supposedly be forgiven their unsuccessful experiments and have a year of comfortable life added for their services – let them enjoy themselves.
In setting the date for the regular parliamentary elections it is worth bearing in mind the legal position of the Constitutional Court in its Judgment of 12 May 2009 No. 10/2009 (on the constitutional submission of the President regarding compliance with the Constitution (constitutionality) of Article 17 § 1 of the Law on the Presidential Elections and the Verkhovna Rada Resolution on setting regular elections for President of Ukraine. In its motivation section, the Constitutional Court stated that in setting the date for regular elections, the court was guided by the norm of the Constitution current on the day that the judgment was taken. The rule, envisaged in Article 77 § 1 of the Constitution from 28 June 1996 should be in force.
However another problem arises in this respect. Who exactly should determine the date of the parliamentary elections? The Constitution gives no answer. Parliament is empowered to set the date for presidential and for local elections, but not for its own. Why this happened is clear. In the first version of the Constitution the date of the parliamentary elections was so clear and unequivocal that it was virtually impossible to make a mistake. Therefore it was sufficient that the Central Election Commission approved the Calendar Plan and announced the beginning of the election campaign. This was enough. In the difficult situation which has emerged, it would perhaps be expedient for the President as Guarantor of the Constitution to turn to the only body of constitutional jurisdiction with a submission asking which norms should be used in setting the date of the parliamentary elections and who should do this.
It is impossible to agree with the position of some experts who propose holding to answer those who voted in 2004 for the political reform, as well as those who supported it, and even those who “pushed it through”. After all experts also (including constitutionalists) hold different, sometimes even diametrically opposite) positions regarding the constitutional amendments and the procedure for their adoption. The diversity of expert opinions expressed both with regard to the passing of the 2004 constitutional amendments and later, then after the Judgment declaring the Law on the 2004 constitutional amendments unconstitutional, demonstrates that Ukrainian society has encountered a very difficult political-legal phenomenon. The main lesson which we should take from this is to understand that the essence of democracy lies not only in the possibility of choice (choice in the broad understanding: choice of direction for future progression of society, choice of attractive ideas and strategies, choice of variants for demonstrating political activity, choice of worthy alternative candidates, etc), but also in observance of procedure stipulated in advance, generally known and democratic in its content.
At the same time the position of the Constitutional Court with regard to the political reform does not appear impeccable, and to some extent, even to some extent open to criticism. This is firstly because it has once already refused on formal grounds to initiate proceedings over a constitutional submission of 102 National Deputies regarding the constitutionality of Law No. 2222-IV on the 2004 Constitutional Amendments (Judgment from 5 February 2008 No. 6/2008). Secondly, the Constitutional Court over recent years has on many occasions considered cases regarding the constitutionality of various laws and other normative legal acts (or particular provisions of them), basing this on provisions changed in 2004, of the Constitution. That means that the only body of constitutional jurisdiction indirectly recognized those amendments to be an organic part of the Constitution, treating them as in effect, and expressing no doubts as to their being in keeping with the initial constitutional text. Thirdly, the only body of constitutional jurisdiction has already provided an official judgment regarding certain provisions of specifically those norms changed in 2004 - that is, again treating them as norms that were properly introduced. Fourthly, the hasty “removal” from the Constitutional Court of four judges on some trumped up grounds (about which for some reason it became known only on the eve of the consideration of the procedure for passing the constitutional amendments) and the urgent introduction of the “new contingent” just before the passing of such a radical and fateful judgment by the only body of constitutional jurisdiction makes many experts feel at very least surprise and doubts as to the sincerity both of the initiators of the constitutional submission (those 252 National Deputies), and those who initially promised to uphold the 2004 constitutional amendments as the main achievement of Ukrainian democracy by all juridical and political means, and then in every way supported their abolition. Moreover, among those parliamentarians who voted for the political reform in 2004, there were those who signed the constitutional submission. As we see, such a “seeing of the light” took place for some reason after a change in the regime and political situation. Was the carrying out of the 2004 constitutional reform not a political set up against those former political opponents? Did today’s political elite (chiefly those now in power) not in that way endeavour to weaken the position and possibilities of their political rivals? First by really destroying a certain (although by no means optimum, nonetheless minimally adequate) level of governability of state political, economic and spiritual – cultural processes (placing Ukraine at the same time virtually on the brink of “political bankruptcy”) in order to then return to power with oh so messianic a mission of saving the Country and receiving the according political dividends?
Commentary on the Constitutional Court Judgment of 30 September 2010
Political-legal Commentary to the Judgment of Ukraine’s Constitutional Court on the constitutional submission from 252 National Deputies regarding compliance with the Constitution (constitutionality) of the Law of Ukraine “On amendments to the Constitution of Ukraine” from 8 December 2004 No. 2222-IV (the case on observance of procedure for making amendments to the Constitution) from 30 September 2010 No. 2 – pn/2010.
The above-mentioned Judgment had only just been published on 1 October 2010 on the site of the Constitutional Court when Ukraine’s free public began commenting on its political and juridical qualities. As regards public officials and civil servants, or the “not-free” public, they must as a matter of urgency begin “bringing normative-legal acts into compliance with the Constitution of 28 June 1996 in the version which existed up till the amendments” of 8 December 2004.
This commentary is clearly on the basis not of State discipline, but of academic freedom. In order to not confuse and not repeat arguments, I will endeavour to present a number of arguments in order based on their basic points.
1. Did the Constitutional Court in this case exceed its powers? No, it did not, since control over the procedure for making amendments to the Main Law of Ukraine is as much a part of its work as control over the substantive content of draft constitutional norms. Furthermore, the strongest guarantee for the correctness, compliance with the demands of the Constitution of new legal norms is provided by clearly set out procedure for their entry into force. True democracy consists of indefinite results in conditions of strict compliance with previously defined procedure. This is considered axiomatic in constitutional theory and practice.
2. Was the relevant procedure for making amendments to the Constitution violated in 2004? The question is rhetorical since all those interested in Ukraine know that it was. The Court cited two qualitatively different types of violations of a procedural nature, however in fact there were more. Firstly, the stylistically altered versions of the constitutional amendments were not passed to the Constitutional Court for its opinion. My opponents can say that the amendments not checked by the Court were editorial and therefore not of fundamental importance. Perhaps, however if parliament allows itself to substitute even one legal concept by its synonym, the content of the norms changes as a result since as we know there are no absolute synonyms. Furthermore we all know the power of syntax and grammar, as well as the fact that this is just the start …
3. Secondly, the amendments were voted on together (“in a package”) with ordinary level legislative norms. Thirdly (which the Court omitted in its Judgment), the amendments were made effectively during a state of emergency. After all in the country at that time political and personal passions were still highly charged, the authority of the current President had been undermined, the blocking of state buildings had only just ended, and Khreshchatyk St. was still filled with the crowd of demonstrators. It is clear that such a context would be deemed unfavourable for passing amendments to the main law of any country.
4. According to Article 157 § 2 of the Constitution, “The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency”. Some might say that a state of emergency had not been formally declared in Ukraine. That is so however everybody knows that President Kuchma, isolated in his residence outside the city, simply lacked the physical possibility to do this. The political crisis had gone too far, the preventive mechanisms had not worked, and therefore it was already too late to call a state of emergency. Ukraine was in the grip of the Orange Revolution (in type, a velvet revolution) – a truly democratic uprising which the Speaker of the Verkhovna Rada, V. Lytvyn somehow assessed as the possible prologue to civil war.
5. We also know very well what this ban from Article 157 is aimed at, whether it is dealing with an actual state of emergency (including any revolution) or only that which is formally declared by the President and supported by the Verkhovna Rada. If the latter is correct, then the formally declaration of a state of emergency by a tyrant could disrupt the adoption of any Constitution. A hypothetical interpretation of Article 157 is thus not self-evident.
Even the passionate critic of the 30 September 2010 Constitutional Court Judgment, Yulia Tymoshenko, in December 2004 considered the voting by Deputies from “Our Ukraine” for the constitutional amendments to be betrayal of the Revolution. To the television cameras she explained the lack of vote from Viktor Yushchenko himself, formally confirmed by the electronic device, as due to her positive (!) influence on him.
6. However even more unacceptable from the legal point of view was the so-called “package” vote for the constitutional amendments together with amendments to electoral law. In the 30 September 2010 Judgment, the Constitutional Court notes with restraint: “Simultaneous adoption of independent legal acts, the regulation of which is designated in Articles 91 and 155 of the Constitution with different procedure for their consideration and adoption demonstrates an infringement by the Verkhovna Rada of Article 19 § 2 of the Constitution”. In fact the package vote did not lead to an insignificant infringement of legal technique, but to a logically inadmissible reversal, a state in which the fate of norms at ordinary level (the amendments to the Law on the Presidential Elections) directly determined the fate of norms at constitutional level by which at that time in Ukraine the form of government was defined (sic!).
7. Furthermore, from a legal point of view, a package vote is neither only nor mainly a single action, as one which is combined. Various draft laws are put together in the package which are voted on in one vote covering them all. If we imagine for a second a situation where the first draft law from the package envisages increasing by five times the salary of National Deputies, the second – changing the constitutional form of government. Who after this would have any doubts about the success of the political reform? Acceptance of such an approach means nothing less than to consider (following Vladimir Lenin) that a noble aim justifies any means. However a truly moral and the only justified position lies in the opposite – that you cannot achieve noble aims through destructive means or instruments. Professor V. Lefeuvre once wrote in his well-known book “The logic of conscience” that the anti-humane slogan the end justifies the means is typically Bolshevik-Soviet. The political axiom of the West is quite the opposite which to a large extent explains their ethical attraction and force.
8. In his commentary on 1 October to the newspaper Kyiv Post, the Secretary of the Venice Commission, T. Market apparently stated: “the Venice Commission never considered the 2004 Constitution to be undemocratic” and that “it was surprising to learn that the Constitution had been declared invalid after six years of being in operation (and being applied by the Constitutional Court itself).”
Yet the Constitutional Court in no way indicated that it considers, or previously considered, Law No. 2222 from 8 December 2004 to be “undemocratic”. It is simply that the political carrot was presented in dirty packaging which became a fundamental obstruction to its digestion. Furthermore, Mr Market does not bear in mind the circumstance that the Constitutional Court, unlike general jurisdiction courts in the Anglo-Saxon legal system, does not have the authority to interpret the Constitution of its own initiative. The Constitutional Court may have an extremely low opinion of a constitutional norm, yet it must continue to comply with it until such time as one of those entitled to put forward a constitutional submission places the given norm in question.
9. On the Internet and on Ukrainian television the question is being discussed of whether there should not be, in connection with the revoking of the 2004 constitutional amendments, early elections, both Presidential and parliamentary, since the people elected those bodies with another scope of powers, rather than that envisaged by the 1996 Constitution. One can answer this criticism as follows. Firstly the people elect specific people for the position of deputy or President, however do not stipulate their powers in that capacity. Designation of the authority of a state body or the powers of one public official - in the given case the Verkhovna Rada and President of Ukraine is the prerogative of the Constitution which is higher than a State, and even then the expression of the will or wish of the people. The people can change their Constitution, but while it is in force, they must comply with it, as much the State apparatus and the State as a whole. As P-A Holbach once said, the Constitution is a bridle for leaders and nations; it is the highest regulation for society as a whole.
10. It is clear that to avoid conflict in the State –legal sphere, re-election of State structures (where their competence has changed) can sometimes be an optimum solution to the situation (Y. Barabash). However one should bear in mind that such re-elections can for the moment only take place with the voluntary stepping down of the President and self-dissolution of the Verkhovna Rada. The current Constitution and laws of Ukraine do not contain such imperatives as V. Lytvyn stated on 1 October 2010.
11. As for the view expressed in the Ukrainian media that after the Constitutional Court Judgment there is no legitimate regime in Ukraine, this is clearly an exaggeration. The abolition of the 2004 constitutional amendments took place from the moment that the Constitutional Court announced its Judgment which is not retrospective. That is, all must simply remain in their places if the positions have been retained. In some state bodies the scope of powers of public officials has changed, however this does not in itself affect their legitimacy. Through elections the people, as stated above, hand their candidates into “the lion’s den” of the Main Law which is the highest legal product of that same people. Partly for that reason in Ukraine, as in the majority of civilized countries, the imperative mandate is not recognized. Legitimation of living political power does indeed exist, however there is also the ascending legitimation of the abstract power of the Constitution.
It is simply that the link between the people’s will and the competence of the President and parliament is achieved not at the tactical level (elections), but at the strategic (adoption of the Constitution) level. Therefore in itself the election of specific people to positions does not affect the scope of their powers and vice versa. The change of scope of powers, under normal circumstances, should not impinge upon specific political fates because in the given case we are dealing with different corridors of political power. The latter do not meet.
12. Does the abolition of the 2004 constitutional changes bring the threat, as Yulia Tymoshenko asserts, of a strengthening of totalitarian tendencies in Ukraine? There is no doubt that the opposition must be a guard of freedom and democracy in society. However the Judgement of the Constitutional Court from 30 September 2010 does not so much provoke totalitarianism, as irritates the spirits of the political opponents of the current regime. That which V. Yushchenko recently wanted to achieve has paradoxically been achieved by the political force of this opponent V. Yanukovych.
13. However, if we leave points of personal confrontation, then we can see that all elected regimes in independent Ukraine acted de facto according to a model which was closer to the 1996 Constitution than to that which the Ukrainian “political reform” (the 2004 constitutional changes) embodied. With its Judgment, the Constitutional Court has merely brought the formal Constitution closer to its organic state. In fact Ukrainian politics has for twenty years already lacked not so much parliamentarianism, but a decent level of awareness and political culture. It is from a position of elementary political logic that the constitutional model of 1996 is better than that of 2004.
14. Since Ukrainian democracy remains relatively naïve and simple, the main threat for it remains populism, the weakness of political culture and the narrowness offers on the political market. It is so important therefore to know whether Yanukovych will stop on what has been achieved. If so, then the reinstatement of the 1996 Constitution will be only a temporary palliative. Since freedom-loving and democratic Ukraine deserves a considerably better Main Law, the constitutional process in Ukraine should continue. Here the political competition between Yanukovych and Tymoshenko could prove more dramatic than follows from their present political contrast.
15. Some members of the legal community are already asking in view of the 30 September Judgment whether the Constitutional Court had the rights (and on what grounds) to begin proceedings on the constitutional amendments of 2004 given their own refusal in 2008 to analyze the content of the Law on Amendments to the Constitution from 8 December 2004, No. 2222-IV which brought in the amendments (“the political reform”).
Once can answer this question as follows: firstly, Constitutional (supreme) courts of other countries have and not just once passed judgments which radically altered their previous legal position. For example, the US Supreme Court with its judgment on the defence of civil rights in the twentieth century on a number of occasions revoked its own rulings on this issue from the 19th century. The latter had allowed an overtly segregationist approach in determining the legal status of certain categories of the population of the USA (Afro-Americans, Chinese, Japanese). That is, the US Supreme Court at different times variously understood (and interpreted) one and the same norms of the federal Constitution. It is simply that equality in the nineteenth century was understood much more narrowly than in the twentieth.
Secondly, the Ukrainian situation is significantly different from that set out as the problem. The Constitutional Court does not have the right to express doubt over the quality of any current material norms of the Main Law since it is positioned legally speaking, not above, but below the Constitution of Ukraine a part of which from 2004, by presumption, were the constitutional amendments. However in the 30 September Judgment, the Constitutional Court in no way expressed its opinion of the content of the reform, that is the Law No. 2222 as such. Its conclusion relates to the manner of including the amendments (removals, supplements) to the body of the Main Law. Effectively and formally-legally it found the procedure of legitimization flawed, and not the quality of the material from which the legal implant was prepared.
Of course one can emotionally understand those who assert that the Constitutional Court over six years acted in its judgments on the assumption that the constitutional amendments were in force, and it then turned out that it passed these judgments apparently insincerely. However such is the fate of the Constitutional Court – to doubt and object only when it is asked to in a legally pure form. I personally think that if any of those authorized to make constitutional submissions had asked the Constitutional Court to give an official interpretation of Section XIII of the Main Law in the sense of clarification as to whether this Section allowed voting for amendments to the Constitution in a package with an ordinary law, the political reform would have collapsed earlier.
16. Yet another open question, judging from the media reactions, is whether the Constitutional Court had the right, in view of its powers, to reinstate the 1996 Constitution. In my opinion, that is not an entirely proper formulation of the issue. After all the Constitutional Court in its judgment did not reinstate the force of the 1996 Constitution, but declared the means for renewal of what was legally not in force. Expressed this metaphorically, the Court pointed out the failure of the assailant, and not the death and fortunate resurrection of the victim. Since the assailant (parliament) in this case lost, the Constitution remained undamaged, and – automatically – current. And it is of no importance that the dual lasted six years.
Freedom of expression
UHHRU: Stop persecution of human rights activists!
The Ukrainian Helsinki Human Rights Union is disturbed by a sharp increase in unlawful actions against human rights and civic activists. The number of such cases over the last six months is far in excess of the total number of similar incidents during the previous five years.
Events in Lviv
On 12 October 2010 between 11.30 and 12.40 the civic organization Vartovi zakonu [Guards of the Law] held a picket outside the Lviv Prosecutor’s Office demanding investigations into abuse in the housing and services sphere, under the banner “Down with Prosecutor corruption!”. They had already held several such pickets on previous Tuesdays.
The picket organizers – the Head of Guards of the Law, Oleksy Verentsov and Ihor Tanyachkevych had provided notification of the planned peaceful gatherings twice – first several months earlier about a series of pickets with specific dates given (No. 2-9477 from 17 August 2010) and two days before the 12 October picket.
The Executive Committee of the City Council on 11 October applied to the Lviv District Administrative Court for a ban on the peaceful assembly, however the court only began proceedings in the case, not yet issuing any ruling. It was only on 13 October that the court banned Guards of the Law from holding pickets each Tuesday of the Prosecutor’s Office, starting from 19 October 2010. This means that at the time of the peaceful gathering on 12 October there was no court ban of the event. Considering the later ruling to be unlawful and unwarranted, the organization lodged an appeal.
During the peaceful assembly, there were no recorded infringements of public order with this confirmed by numerous video recordings of the event. Despite this, the police demanded that the picket be stopped and that the organizers be taken to the police station. They explained this by claiming that the organizers did not have a permit for the peaceful assembly. However according to Article 39 of the Constitution organizers must inform of an event, but do not have to receive permission. Therefore the organizers refused to implement a clearly unlawful demand from the police officers. It is notable that the Deputy Head of the District Police Department personally appeared to stop the peaceful assembly.
On 14 October the two organizers of the picket - Oleksy Verentsov and Ihor Tanyachkevych – were detained by the police, taken to court which sentenced them to three days administrative arrest for wilfully disobeying the lawful instruction of the police and infringing the procedure for organizing a peaceful gathering (Articles 186 and 185-1 of the Code of Administrative Offences. The court hearing took place with clear infringements of the right to a fair trial: the judge rejected the application to include a defender, stating that Verentsov was a human rights activist and therefore did not need the help of a lawyer, refused to hear the accounts of witnesses of the event as the accused requested, and also refused to watch a video recording of the event claiming technical problems with the computer. The court in its ruling also demanded a permit to hold a peaceful assembly from the organizers in contravention of a direct norm of the Constitution. The organizers of the peaceful gathering were released after serving their sentence on 17 October. The next day they lodged an appeal against the court ruling holding them to administrative liability.
On 27 October the court of appeal rejected the appeal lodged by Verentsov. Its ruling is final and not subject to appeal. The court also refused to hand the ruling to Verentsov. Oleksy Verentsov, assisted by UHHRU, has lodged an application with the European Court of Human Rights alleging violation of the right to a fair trial and of the right of peaceful assembly.
Events in Vinnytsa
On 15 October a police search was carried out of the flat of Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman, on the basis of a warrant from the Leninsky District Court in Vinnytsa from 22 September 2010, as part of a criminal investigation regarding circulation of pornography.
The criminal investigation is over the posting by Groisman on his Live Journal blog of a video clip (http://di-mur.livejournal.com/129792.html) which is freely accessible on Youtube. The video clip which was shown on Russian television presents scenes taken by a concealed camera supposedly with the participation of well-known Russian opposition figures. The clip was posted on many resources and was not especially circulated by Groisman. The latter says that it was posted to show how they can interfere in the private life of opposition figures and activists in order to discredit them.
On completion of the search, the police officers expressed the wish to view the office of the Vinnytsa Human Rights Group in the next door flat. Without any court warrant they approached the owner of the premises and asked to be allowed to view it. The owner did not object but stated that the premises are rented by an organization, that there are only the organization’s things and that its permission is also needed. Having entered the office of the Vinnytsa Human Rights Group, the police immediately carried out a search and removed documents and equipment which they deemed suspicious. This included all computers and information drives, all financial documentation of the organization, confidential information about clients and refugees, correspondence between the Vinnytsa Human Rights Group and the European Court of Human Rights regarding the cases of Kulik v. Ukraine; Zabolotni v. Ukraine and Aleksei Makarov v. Ukraine. The documents removed had no relation whatsoever to the case which the search was carried out as part of.
By law a search may be carried out during the day, yet this search lasted right up till 2 a.m. in the worst tradition of the Soviet KGB. It is also surprising that the search warrant had not been enforced for almost a month, but carried out on a day when Groisman was on a work-related trip in another city and could not be present. It is also interesting that the search was carried out by police officers investigating crimes regarding human trafficking although the imputed crime should be investigated by specialists on cybercrime.
After the search Groisman was summoned several times for questioning although a considerable number of the questions did not concern the investigated criminal case, but the activity of the Vinnytsa Human Rights Group. Several members of the organization were also questioned.
It is clear that all these procedural actions and the items removed had nothing to do with the artificially initiated criminal investigation but were aimed at removing proof of violations of human rights and paralyzing the work of the organization.
The document removed has still not been returned to the organization. Those documents include some concerning the court cases of people whom the Vinnytsa Human Rights Group provides legal aid to. This places the timely implementation of procedural actions in jeopardy. The police are thus obstructing access to the courts or to efficient participation in the examination of many people.
Events in Kherson
On 14 September Dementiy Bily, journalist and Head of the Kherson Regional Branch of the Committee of Voters of Ukraine (which is a member of UHHRU was assaulted by three people. The attack took place during a report in the Kherson Theatre by the City Mayor Volodomyr Saldo, who is standing for re-election for the third time from the Party of the Regions. Bily called for transparency of the event and for all those wishing to attend, including opposition deputies, to be admitted. The preparation of the report was a closed event with entry according to special invitation. Thee people pushed Bily into the foyer where one began inflicting blows. It later transpired that one of the assailants is a businessman and person close to the Mayor, another – a member of staff of the Executive Committee. The third person’s identity has not been established. The police standing nearby did not intervene. It was the first of the people mentioned who inflicted the blows. Bily was admitted to hospital where he was diagnosed as having “an internal skull injury and concussion of medium severity”. One of the assailants was also injured when Bily’s camera lacerated him on the face. The police initiated criminal proceedings over the beating, however the person who inflicted the blows has appealed against the decision which is delaying the investigation.
Events in Yevpatoria
On 8 October the Head of the Yevpatoria Department of the Police in the Crimea, O. Osadchy sent a demand to the Head of the Ukrainian civic organization of Disabled Users of Psychiatric Help “User”, R. Imereli to send him copies of the financial and accountancy documents of the organization, as well as documents on the project carried out by the organization, supposedly in order to check for what purposes the money received for the project was spent. This involved a project monitoring violations of human rights in psychiatric institutions in the Crimea which had recorded serious violations. It was after publication of previous results of this project by the head of the project, Andriy Fedosov, that the latter was beaten up and received a series of threatening telephone calls.
None of these cases has been investigated despite numerous appeals from human rights groups. Instead one sees from this letter that the police have begun investigating the human rights organization. It is not known on what grounds this is being done and what offence Fedosov is suspected of. It is clear that such actions are aimed at intimidation and stopping further implementation of the project and actions of the organization as a whole.
Events in Kharkiv
Previously, in May-June this year unlawful actions were on a number of occasions taken against civic activists defending Gorky Park against tree felling by the local authorities. During peaceful demonstrations the police repeatedly unlawfully detained activists, made attempts to stop peaceful gatherings or simply watched on while activists were beaten by men in black with badges saying “Municipal Guard”.
On 18 June Amnesty International declared two activists detained and sentenced to 15 days administrative arrest, Andriy Yavarnytsky and Denis Chernegy prisoners of conscience. This is the first time that Ukraine has had prisoners of conscience since 2004. Despite protests from human rights groups, the men were not released. No police office has been punished over the unlawful actions during the protests.
Pressure on activists
UHHRU has on a number of occasions received evidence that officers of the SBU [Security Service] or police are carrying out undeclared meetings with civic activists aimed not only at gathering information, but also at intimidating them and dissuading them from engaging in protest. For example, police officers ask people to sign a document warning of criminal liability for unlawful actions during peaceful assembly. Such preventive [“prophylactic”] conversations are often aimed at intimidating organizers of events so that they decide against such activity.
There have also been numerous cases where the administration of higher educational institutions has been enlisted to place pressure on young activists to encourage them to give up their activities. There have been such cases, for example, in Simferopol and Kyiv.
All these cases, while not linked with each other, arouse concern and indicate that the work of human rights and civic activists is becoming ever more dangerous. In such conditions the government should
In view of these events, the Ukrainian Helsinki Human Rights Union demands:
that the Ministry of Internal Affairs and Prosecutor’s Office immediately stop their persecution of the Vinnytsa Human Rights Group and its Coordinator, Dmytro Groisman, return all items and documents removed during the search, terminate the criminal investigation and bring to account those responsible of carrying out the unlawful search and removal from the office of the human rights organization;
that the Ministry of Internal Affairs conclude its criminal investigation and pass the case concerning the assault of Dementiy Bily to the court;
that the Ministry of Internal Affairs stop its persecution of Andriy Fedosov and the Ukrainian Civic Organization of Disabled Users of Psychiatric Help “User”, as well as properly investigating all cases of threats against them;
that the President ensure unwavering enforcement by the State of the UN Declaration of Human Rights and Duties of People, Groups and Public Bodies called upon to defend and help exercise universally recognized human rights and fundamental Freedoms (also known as the Declaration of Human Rights Workers’ Rights);
that the Security Service stop putting pressure on human rights defenders and activists.
We ask the international community, international organizations and foreign embassies to influence Ukraine’s policy to stop persecution of human rights activists for their activities.
UHHRU also calls on the European Union and EU countries to more actively apply the Guiding Principles of the EU on the protection of human rights and to draw up a plan for inculcating these in Ukraine.
UHHRU Executive Director
Head of the UHHRU Board
Access to information
Absurdity and Reality
A month has passed since the detention of Ruslan Zabily, Director of the National Memorial Museum of Victims of the Occupation Regimes “Tyurma na Lonskoho”, his 14-hour interrogation, the removal of memory drives, the search and removal of a number of documents from the museum itself to check to see if they contain state secrets, and the initiating of a criminal investigation “over the preparation by an SBU [Security Service] employee to divulge information constituting a state secret, that is, under the crime envisaged by Article 15 § 1 and 328 of the Criminal Code. At the same time information was posted on the SBU website stating that “It has been established that SBU employee R. Zabily in order to pass it on to third parties unlawfully gathered information constituting a state secret. On 8 September 2010 on his arrival from Lviv to Kyiv he was detained with this information. At present the circle of people whom the said information was intended for is being ascertained.
In the first 10 days after this there were press conferences, statements from SBU management and the archivists deprived of their documents, demonstrations around the entire country, collective letters in support of Zabily from historians both western and from within Ukraine, and the instruction by the President to transfer the Museum from the SBU to the Institute for National Remembrance. Nothing has changed. The Museum with its Director is peacefully working with the documents which remain. There has been no criminal investigation work according to Zabily and his colleagues. None of what was first removed has been returned. This is despite the fact that it is totally unfathomable what state secrets of independent Ukraine could be sought in such documents removed as the 1940 version of the UkrSSR Criminal Code; numerous documents from the Second Polish Republic of the 1930s (orders, reports from woewoda departments of the State police; criminal files against members of UVO [Ukrainian Military Organization] and OUN [Organization of Ukrainian Nationalists], etc; recordings from 2009-2010 with recollections of UPA [Ukrainian Resistance Army] fighters and Ukrainian dissidents made by staff of the Museum. The situation is truly absurd. How long does an expert analysis take to find out whether the documents contain state secrets when it is a priori clear that documents of the Soviet period about political repression cannot contain secret information as per the 1994 Law on State Secrets? If they had, God forbid, found even one document stamped “secret” or “top secret” among Ruslan Zabily’s documents, they would have immediately informed of this and he would have already been charged. Yet this has not happened.
The situation requires at least brief legal commentary. Documents of the Soviet period contained in the SBU archives have the stamps “secret”, “top secret”, “personal” and others. According to Article 34 of Ukraine’s Constitution, “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”
The stamps “secret”, “top secret” and others restricting access to information from Soviet times are not defined by any Ukrainian law at all. They were introduced in the USSR by Instruction No. 0186 which was itself secret and not on open access. Normative acts of the Soviet period are only valid in Ukraine where they do not run counter to the Constitution. Instruction No. 0186 clearly breaches it and cannot be applied in Ukraine. Therefore refusals to provide information and access to archival files with Soviet stamps restricting access are entirely unlawful.
It should be expected that information needing to remain secret should have long since received such status pursuant to the 1994 Law on State Secrets. Any assertion that Soviet documents regarding political repressions are secret is absurd. The refusal to give access to such documents on the grounds of their Soviet stamps is quite simply unlawful. The criminal investigation under Article 328 of the Criminal Code due to Article 15 § 1 shames not only the SBU, but the reputation of Ukraine itself.
At a briefing on 17 September the Head of the SBU, Valery Khoroshkovsky stated among other things, that “going by a description of the document, which is in Russian, so allow me to say a couple of words in the language of the original: “List of people involved in the case”. Here 203 people are mentioned, and perhaps there are people still alive. There are there relatives, they have to give their consent to this.. there is material from 73, 75, 78. These people are among us now. And I am not certain that they wish somebody to publicly hold this information in an unlawful manner.”
Note, Mr Khoroshkovsky is talking about an entirely different issue, about restriction of access to declassified archival documents. It was about this that other SBU employees spoke at briefings, and not a word about divulgence of state secrets. So maybe it’s time to put an end to this, to terminate the criminal investigation on plans to divulge state secrets given the absence of elements of the crime and return the archivists the information removed? And turn to discussion of an important and complex problem – what should be the balance between the right of the public to have access to archival documents and the right to privacy of those who figure in these documents when the latter do not for whatever reason wish access to be open.
Archival documents about political repression often contain information which the Security Service does not wish to be divulged: the names and other personal details of those who took part in persecution – investigators, experts, witnesses, prosecutors, judges, lawyers, pieces of information about operational officers, etc. Here the question arises of how warranted it is to deny access to confidential information about a person who took part in repression. After all each person has the right to know the names of those who take part in their persecution and the people as a whole have the right to the truth, including the maximum information about the activities of the repressive regime. The people have the right to have those guilty of human rights violations identified.
In most post-communist countries the said conflict between freedom of information and the right to privacy is decided in favour of freedom of information. This was the case in Germany, Poland, Hungary, the Czech Republic and other countries, however each had their own special features and exceptions. For example, the Constitutional Court in Hungary stated that the right of citizens to access to their own dossiers “does not belong to the right of the victim to know who was carrying out surveillance over them”.
Here the right of the victim to restriction of access to his or her dossier in the overwhelming majority of countries overrides the right of the public to use the data for their historical research. In the given case the conflict is resolved in favour the right to the victim’s privacy. In Ukraine there are not just isolated cases where the victims of political repression or their descendents have banned in full or in part access to their archival-criminal files.
The author cites a depersonalized example of an archival document to show why a ban on circulation of a declassified document might arise. It is basically a report sent to the First Secretary of the regional committee [obkom] of the Communist Party about a meeting under a nationalist flag. It explains that measures aimed at compromising the person are being taken, describing some of them. The author is the head of the local KGB.
The author says that such an example convincingly demonstrates why the right of the victim to restrict access to his own dossier should prevail over the right of access to it. Neither the former dissident referred to in it, nor his “contacts” would perhaps wish this document to be published and circulated. It is entirely possible that the mention in it of “intimate contacts” is a lie invented in order to antagonize the young people, the Head of the KGB division does after all speak of measures to compromise the person before his contacts. We know that the KGB resorted to such revolting practices tin their activities against human rights activists, fabricating criminal cases, spreading defamatory and foul rumours about marital betrayal, about people denouncing one another etc. This is why some dissidents explain their request to close access to their archival criminal case, there being a lot of lies there. One can understand their position however in my view commentary to archival documents would simply be needed to reinstate historical truth. At some stage the period for which access is restricted will end and the descendents of dissidents will have the file with documents in which foul things were written about their ancestors and there won’t be anybody to defend them.
In contemporary politics we constantly run up against such situations where a politician has had mud slung at him, through wrenching up facts about his private life. The author mentions a recent case which since he himself says it is an invasion of privacy, it seems best not to give in detail since the reader is unlikely to have heard of it. He stresses that it does not matter whether the documents and video are authentic or not.