“Prava Ludiny” (human rights) monthly bulletin, 2011, #12
Zero Tolerance for Political Persecution in Ukraine Supreme Court brought to heel Chornobyl’s Ongoing Victims Chornobyl activists questioned all day, summoned for Saturday Against torture and ill-treatment
Dmytro Karpenko and another lawyer detained in Kirovohrad The right to a fair trial
The Suppression of an Independent Judiciary in Ukraine Freedom of expression
Freedom of speech reduced in 2011, though some glimmers of hope emerged Freedom of peaceful assembly
Pressure and Offensive on Social Protests Social and economic rights
War against Corruption lost from the outset Point of view
Myroslav Marynovych: We are steadily losing freedom News from the CIS countries
Open Appeal to the Kazakhstan Authorities Russian journalists condemn ’gag’ after Putin story Russian Public Figures announce formation of Roundtable Alexei Navalny: Final Battle between Good and Neutrality
Politics and human rights
Zero Tolerance for Political Persecution in Ukraine
Open Appeal to the President of Ukraine, Viktor Yanukovych (email address for endorsing the appeal below)
We call on you as Head of State and Guarantor of the Constitution to put an end to the increasing number of flagrant violations of the right to a fair trial.
Of deep concern are the arrest, court trial and sentencing of former Prime Minister Yulia Tymoshenko; the detention and prosecution of former Minister of Internal Affairs Yury Lutsenko; and of the former Acting Defence Minister Valery Ivashchenko.
Failure to react to clear evidence that the judiciary and enforcement agencies are being used for political ends can only confirm well-founded suspicions that these are reprisals against political opponents aimed also at preventing them from taking part in next year’s parliamentary elections.
These violations of fundamental principles of democracy have already led to the effective breakdown in the crucial process of European integration and will have catastrophic consequences for the country. The ever more overt muffling of information and propaganda on television cannot conceal the deterioration in the human rights situation in the country, nor the disastrous impact on Ukraine’s reputation and its attractiveness for foreign investors.
The unwarranted arrests and continuing detention of Yury Lutsenko and Valery Ivashchenko demonstrate abuse of remand in custody. The arrest on absolutely nonsensical grounds of Yulia Tymoshenko in August this year was unanimously condemned by the international community. We have every reason to assume that in the near future the European Court of Human Rights will find that there is political persecution in Ukraine and that there has been violation of the right to a fair trial and to liberty with respect to these opposition figures. The consequences both for the country and for its President cannot be overstated.
All the former government officials have been charged either with a political decision (over the 2009 gas accords with Russia), or with acts identical to those carried out with impunity by members of the current government.
Witnesses in the Lutsenko trial have also spoken of being interrogated after the investigation was completed; of their testimony having been distorted; of having been told what they should write by the investigator. These are extremely serious accusations yet both the Prosecutor General and the judge have refused to investigate.
In view of such infringements of the right to a fair trial, the assertion that the President cannot interfere in the work of the courts is not credible. Nor can such arguments be considered convincing when the first trial of Yulia Tymoshenko was adjourned for a month due to the Yalta European Strategy Conference, and the appeal hearings were suddenly postponed until the day after the EU-Ukraine Summit in Kyiv on 19 December.
Each citizen has the right to a fair trial, to freedom from lawlessness and arbitrary rule. Each is entitled to expect the President and Guarantor of the Constitution to defend these rights and intervene when they are being violated.
As elected President, you took on the responsibility for defending citizens’ constitutional rights and building a law-based democracy. You must also bear the responsibility for a retreat from democracy and the demoralization of the country’s people.
We express our categorical protest against this political persecution and demand that you put a stop to it.
Olha Zaretska and Family
(The list of signatories is by now considerably larger - it can be seen at: http://khpg.org/1325325877 and http://blogs.telekritika.ua/?id=2710&
Please add your voice to our appeal by writing to [email protected]
Any assistance in circulating this appeal, including via social networks, would be enormously appreciated. Thank you!
Supreme Court brought to heel
The election took place on 23 December 2011, almost three months late, of a new Head of Ukraine’s Supreme Court. Petro Pylypchuk, former Head of the Council of Judges, was elected, some suggest, as a compromise – and temporary – measure. It had become clear recently that Vasyl Onopenko, the former Head, had not put forward his candidacy.
The events of the last weeks appeared to confirm that all efforts were underway to ensure the removal of Vasyl Onopenko from the post of Head of the Supreme Court, Mr Onopenko’s tenure had expired in September, but up till then he had been expected to stand for re-election with a very strong likelihood of receiving majority support from his fellow judges. He was widely known to be unacceptable to the President’s Administration. This was commented upon in the Parliamentary Assembly of the Council of Europe’s October 2010 report in connection with concern, shared by the Venice Commission, over drastically reduced powers for the Supreme Court. The PACE report stated that “these new provisions are controversial and have led to allegations that they were inspired by political power games and revenge, as the chairperson of the Supreme Court is widely considered to be close to former Prime Minister, Yulia Timoshenko”
Although the Supreme Court’s role remains reduced, some powers have since been reinstated. Throughout 2011 there were a number of events and developments which many commentators interpreted as aimed at ousting Onopenko. No attempts have been made to publicly refute allegations, although they are of the most serious nature.
Yevhen Korniychuk, former Deputy Justice Minister in Yulia Tymoshenko’s government and Vasyl Onopenko’s son-in-law was arrested on 22 December 2010 on the day that his wife gave birth to their third child. The arrest was condemned by a number of lawyers within Ukraine, and Korniychuk’s case was one of four identified as of particular concern in the Danish Helsinki Committee’s Second Legal Monitoring Report.
Mr Korniychuk was released in February on a signed undertaking not to leave Kyiv. The release came after a meeting between the President and Vasyl Onopenko, then Head of the Supreme Court and Korniychuk’s father-in-law. At the same time, a rather strange criminal investigation initiated against Onopenko’s elder daughter, which was deemed by the investigators to require a search of Onopenko’s home, was terminated.
On 30 November this year the Prosecutor General’s Office reduced the charges against Yevhen Korniychuk. Then on 9 December the Pechersky District Court in Kyiv amnestied him. The same court which in late December 2010 had first refused to remand Korniychuk in custody, but then “changed its mind” and remanded him for two months, now found that his three underage children and lack of any criminal record, as well, obviously, as the change in the criminal charges, allowed it to apply the amnesty. The court also rejected the application to demand compensation for losses to the State supposedly inflicted by Korniychuk.
The 9 December court ruling came a day after the District Administrative Court in Kyiv revoked its own ban imposed in September on holding the election for new Head of the Supreme Court. It also coincided with public statements from Vasyl Onopenko indicating that he would probably not stand for office.
The three other politicians whose cases were analyzed by the Danish Helsinki Committee: Yulia Tymoshenko, Yury Lutsenko and Valery Ivashchenko have received quite different treatment from the same Pechersky District Court, and are all still in custody. Yulia Tymoshenko’s 7-year prison sentence, issued by Judge Kireyev of the same Pechersky District Court, ban on holding public office and 1.5 billion UAH fine, was upheld by the Court of Appeal on 23 December and has now come into effect.
Other means of persuasion
As mentioned, the District Administrative Court in Kyiv back in September this year placed a ban on holding the election for a new Head of the Supreme Court. This was supposedly on the application of a potential candidate. A law passed by parliament on 20 October opened the way for this candidate – Ihor Samsin, Head of the High Qualification Commission of Judges - to take part in the election. Political analysts suggest that Samsin was the candidate favoured by the President’s Administration. There was, however, rebellion among the judges’ corps of the Supreme Court. According to Serhiy Vysotsky, the President’s Administration then tried to push for the election of the Head of the Constitutional Court, . Anatoly Holovin. This also aroused the judges’ resistance. Petro Pylypchuk is widely admired by his colleagues who seemingly had no problem voting for him. He is not, however, seen as a strict administrator, and Vysotsky suggests that there are fears with the Supreme Court that the first Deputy Head, Romanyuk, supported by the President’s Administration, may have considerable power.
In fact, however, the election of Petro Pylypchuk, can only be a temporary measure since he cannot serve beyond October next year when he reaches 65. It remains to be seen whether the Supreme Court’s judges will continue to demonstrate independence.
The means of persuasion applied over recent months, most notoriously, public statements by the Prosecutor General of possible criminal charges against a number of Supreme Court judges, have shown the types of pressure they may be under. And, most worrying, the no-holds-barred approach used by those whose main aim is a malleable judiciary.
Chornobyl’s Ongoing Victims
Protest by former Chornobyl clean-up workers and others in support of the men detained
Real measures to whiten their tarnished reputation seem of no interest to Ukraine’s leaders. Presumably it’s easier, given their grip on all branches of power, to combine a little commissioned gloss through apparently successful, “negotiations” with repressive measures against those refusing to buckle under.
The protests throughout the country by former Chornobyl clean-up workers received wide coverage, as did the increasingly inept measures to stop them. The men were, after all, only defending their rights under the law to full pension payments, and asking for enforcement of court orders confirming these rights.
The protests over the Pension Fund’s reduction in their pensions were most galling in Donetsk, the ruling party’s homeland. First the court banned the Chornobyl clean-up workers’ protests. This was in response to an application from the city authorities who cited a police report claiming that “according to information received on the Internet the next explosion will be in Donetsk” and therefore asking for a ban on protests “pending an improvement in the operational situation in the city”. The protesters refused to go away, so on Sunday evening, 27 November police and Emergencies Ministry men stormed the protesters’ tents, this resulting in the death of retired miner Gennady Konoplyov.
There are limits to how tarnished a reputation can be, especially with 14 December, the Day honouring those who took part in the clean-up approaching. The pressure to “resolve” the situation was enormous.
There were reports of memoranda being signed with the Chornobyl Union of Ukraine, agreements being reached. In Donetsk the protesters appear to have agreed to a one off payment of 1 million UAH which the Administration is saying is not the money owed for November and December, but “material assistance to those most needing help”.
There are many needing help, and all are entitled to enforcement of the law. The payment can therefore only serve to divide the Chornobyl clean-up workers’ movement. Some of the men were against piecemeal offers and wanted to continue the protests. They considered the conciliatory moves by the Chornobyl Union of Ukraine and its leader, Yury Andreyev, to be a sell-out.
Two of those “dissidents” spent Friday and Saturday (16-17 December) under police interrogation in Kharkiv and by Saturday evening had been presented with preposterous criminal charges.
Volodymyr Proskurin, leader of the Kharkiv movement, Petro Prokopenko and other former Chornobyl clean-up workers were delegates to a crucial conference of the Chornobyl Union of Ukraine on Friday and Saturday. They were planning to voice their opposition to the re-election of Yury Andreyev whom they see as selling out the Chornobyl clean-up workers’ movement.
On Thursday the men received summonses to the police for questioning as witnesses. Most were set for Friday, Prokopenko’s for Monday. Proskurin’s request for his questioning to be postponed for a couple of days was rejected.
At 6 a.m. on Friday morning, police quite unwarrantedly turned up at Proskurin’s home and took him by force to the police station. Prokopenko reached the conference though the Berkut Special Forces unit on guard at first tried to prevent him getting in. Police then arrived and positively detained him, taking him back to Kharkiv.
No documentary evidence was provided yet both men were charged with forging their papers entitling them to pensions as Chornobyl clean-up workers. No evidence, incidentally, can be provided since the men did indeed take part in the clean-up operation, with lasting damage to their health. It is no accident that both men were taken by ambulance from the investigators on Saturday afternoon and are in hospital. Following protests and considerable attention, the police announced on 19 December that they were withdrawing charges. It is to be hoped for good, but little would appear guaranteed.
Meanwhile Yury Andreyev has been re-elected. The conference took place in the presence of the Deputy Prime Minister, Andrey Klyuev and a number of his fellow Regions Party colleagues. And with a large contingent of Berkut strongmen and other police officers who refused to allow up to 300 delegates into the conference hall. Mr Andreyev is reported on the government website as having waxed lyrical about cooperation with the government. He also apparently said that some Chornobyl clean-up workers “have fallen victim to political manipulation”, and are being used by political forces.
The stage has thus been set, with pro-government decorations and all efforts afoot to intimidate and stifle dissident voices. A year ago the government resorted to similar tactics over the Tax Code protesters. 9 people spent considerable periods in detention on highly questionable charges and are still facing criminal prosecution.
In this case, the cynicism is especially disturbing. Men used by the Soviet regime back in 1986 are now being used as pawns in a new regime’s games. Used, together with the police and judiciary to openly demonstrate what those who buck the system can expect.
Chornobyl activists questioned all day, summoned for Saturday
The leader of the Kharkiv former Chornobyl clean-up workers, Vladimir Proskurin was released late on Friday evening from the Kharkiv Regional MID investigation unit. He says that he has to be back there at 9.00 on Saturday.
He was, moreover, released on a signed undertaking not to leave the city. The investigator did not explain whether his status has been changed. As reported, Mr Proskurin, as well as other activists, received a summons on Thursday for questioning as a witness in a criminal investigation. Despite the lack of any grounds, the police appeared at his home on Friday morning and took him to the investigation unit.
Vladimir Proskurin is convinced that the police actions are because certain people needed to make sure he did not take part in a crucial conference of the NGO Chornobyl Union of Ukraine. The authorities, he believes, want to make sure that the current chair, Yury Adnreyev whom many former Chornobyl clean-up workers accuse of betraying the Chornobyl workers’ movement becomes leader of the Union.
Mr Proskurin assumes that bringing him by force to the investigators was an attempt to discredit him as head of a civic organization. This, he says, was despite the fact that none of the documents shown him by the investigator suggest any infringements by him of the law.
Mr Proskurin adds that he had in fact prior to this approached MP Mykhailo Volynets (BYUT-Batkivshchyna) asking him to obtain the documents in Kyiv confirming that Vladimir Proskurin really did take part in the clean up operation following the Chornobyl Disaster. Volynets flew to Kharkiv and handed these documents to the investigator.
He considers that the police are being used by the authorities, and that “they’re carrying out an order from the very top” He noted that the head of the Party of the Regions faction in the Verkhovna Rada, Aleksandr Yefremov recently stated that criminal proceedings needed to be initiated against some former Chornobyl clean-up workers (see Most demanding Chornobyl clean-up workers could face criminal prosecution).
The former Chornobyl clean-up workers who were standing vigil outside the MIA building all day are in no hurry to leave. Petro Prokopenko, who was forcibly returned to Kharkiv from the conference of the Chornobyl Union of Ukraine on Friday, is still with the investigators. So is MP Mykhailo Volynets who has promised, as have the other former Chornobyl clean-up workers, that he will not leave until Mr Prokopenko is released.
Against torture and ill-treatment
Dmytro Karpenko and another lawyer detained in Kirovohrad
Dmytro Karpenko after the encounter with police in August
On Thursday, 29 December the Leninsky District Court in Kirovohrad was due to hear the appeal by defence lawyer Dmytro Karpenko against the decision to re-launch a criminal investigation against him.
Three representatives of the Committee for the Defence of Lawyers’ Rights, including its Chairperson, specially came to Kirovohrad for the hearing.
Just before it was to commence, Mr Karpenko together with defence lawyer Valentin Stelyuk, was detained by unidentified police officers. The two men were taken away. Physical force and tear gas were used against the representatives of the Committee.
Members of this Committee and other organizations are presently making plans to get to Kirovohrad, and also preparing the relevant appeal regarding these unprecedented events.
The original criminal investigation against Dmytro Karpenko had been initiated on 3 October 2011 over allegedly showing resistance to police officers carrying out their duties. More details about the events linked to the charges can be found at See Lawyers’ Statement regarding Police treatment of Defence Lawyer D. Karpenko
That was revoked by the Cherkasy Court of Appeal, but then re-started by the Kirovohrad Regional Prosecutor at the end of November.
Mr Karpenko’s attendance was mandatory at Thursday’s court hearing. In his absence the court was only able to hear the explanations of defence counsel Mykola Holodnyak. It then turned to examining the evidence which had been studied by the first instance and appellate courts. During this examination, Valentin Stelyuk was received from the Prosecutor’s office and was able to take part in the court hearing.
The Prosecutor’s office had tried to question Mr Stelyuk as a witness in the case against Dmytro Karpenko, however Mr Stelyuk stated that he was bound to confidentiality as a lawyer.
A forensic examination found that Mr Stelyuk had injuries to the head, typical marks from handcuffs and bruises over his entire body.
The court retired at the end of the day to the consulting chamber and is supposed to give its decision on 30 December.
While the court hearing was underway, two Cherkasy lawyers lodged a complaint against Mr Karpenko’s detention which is to be examined on 3 January 2012, together with a submission regarding restraint measure against Mr Karpenko should this be lodged on 30 or 31 December.
Amnesty International Urgent Action regarding the events leading to this extraordinary criminal investigation
LAWYER BEATEN FOR DEMANDING TO SEE CLIENT
On 17 August l awyer Dmytro Karpenko was detained and tortured by police in Cherkasy, Ukraine , after demanding to see a client . When he complained about his treatment , the police accused him of assaulting them. His trial is on 29 December.
On 17 August Dmy t ro Karpenko went to Cherkasy Court to see a client of his who was being unlawfully detained. When police tried to leave the court compound with his client in an unmarked white van, Dmytro Karpenko blocked the gateway and demanded to see him. CCTV footage of the incident shows three police officers aggressively seizing Dmytro Karpenko, forcing him to the floor and dragging him, handcuffed, into the van.
Dmytro Karpenko told local human rights defenders that he was taken to Cherkasy police station and beaten for around two hours. Following his release, he spent more than a week in hospital with concussion, kidney damage and heavy bruising. On 18 August he submitted a complaint about his treatment, backed up by medical evidence, to the Cherkasy prosecutor’s office.
On 30 August the Cherkasy prosecutor’s office opened a criminal case against Dmytro Karpenko, claiming that he had injured two of the three police officers while resisting arrest. There was no investigation into Dmytro Karpenko’s allegation of ill-treatment or to ascertain how he sustained the injuries documented by the hospital. Dmytro Karpenko appealed the decision to open a criminal case against him, and the charges were quashed by Cherkasy Court on the basis of the CCTV evidence. The decision to dismiss the case was upheld by Cherkasy Court of Appeals.
However, on 28 November, the Kirovograd prosecutor’s office re-opened the case against Dmytro Karpenko - despite the fact that this is prohibited by Ukrainian law. On 29 December Dmytro Karpenko will stand trial for resisting arrest and assaulting a police officer and faces up to 6 years in prison if convicted.
Please write immediately in Ukrainian, Russian or your own language:
Calling for the charges against Dmytro Karpenko to be dropped;
Calling for an immediate investigation into the allegation that Dmytro Karpenko was tortured while in police custody.
P LEASE SEND APPEALS BEFORE 25 JANUARY 2012 TO :
Viktor Pavlovich Pshonka
Riznitska Str. 13/15
Fax: + 380 44 280 2851
Salutation: Dear General Prosecutor
Minister for Internal Affairs
Akademika Bogomoltsa Str. 10
Fax: +380 44 256 16 33
Email: [email protected]
Salutation: Dear Minister
And copies to:
Vul Instytutska 21/8
01008 Kyiv, Ukraine
Also send copies to diplomatic representatives accredited to your country.
Please check with your section office if sending appeals after the above date.
LAWYER BEATEN FOR DEMANDING TO SEE CLIENT
There is effective impunity in Ukraine for the high level of criminal misconduct, including torture and extortion, by the police in the course of their work. Structural shortcomings, high levels of corruption, close working relationships and other links between prosecutors and police, meant that investigations into criminal acts committed by the police, even when medical or other credible evidence exists to support the allegations, are not carried out. Harassment and intimidation of complainants are common. These combined with the subsequent low level of prosecutions fuels lack of accountability for human rights violations committed by the police.
Name: Dmytro Karpenko
UA: 324/11 Index: EUR 50/016/2011 Issue Date: 14 December 2011
The right to a fair trial
The Suppression of an Independent Judiciary in Ukraine
Judge Bohdan A. Futey
For over a year, news about the judiciary in Ukraine has been alarming. Last year, a new law on the judiciary substantially reduced the powers of the Supreme Court, and high-profile prosecutions of opposition leaders have raised the specter of political persecution. As recently pointed out in the appeal of Deputy Hryhoriy Omelchenko, the government of Ukraine has a fundamental, unresolved issue. Although the Constitution sets up a system of separated powers with three, independent branches of government, the recent trend in Ukraine has been to collapse the judiciary into the executive and to remove the judiciary’s power. Although this trend started with the former President, it has accelerated under the current President. Ukraine now faces an almost total suppression of the Supreme Court of Ukraine and the elimination of an independent judiciary. A hobbled judiciary cannot protect the rights of the Ukrainian people. It is critical for all three branches of government, as well as the people of Ukraine, to closely adhere to the Constitution. A brief background on the history of constitutional and legislative developments related to judiciary, as well as some notes on the values enshrined in the Constitution, may be helpful in assessing Deputy Omelchenko’s appeal.
The Constitution and other Laws Related to the Judiciary
Ukraine adopted its Constitution on June 28, 1996. Under Article 124, the court system has the exclusive task of administering justice, and judicial proceedings are to be held before the Constitutional Court of Ukraine and the courts of general jurisdiction. Article 125 sets the Supreme Court of Ukraine as the highest judicial body for courts of general jurisdiction. Furthermore, Article 129 sets forth numerous guiding principles for legal proceedings. Under that article, the Constitution specifies, among other things, that all are equal before the law, that trials must be open, and that all are entitled to the adversarial process.
The Constitution in Chapter XV provided for a five-year transitional period to establish the judiciary system outlined in the Constitution. Under these provisions, the Supreme Court of Ukraine was to begin to exercise its authority in accordance with the current laws in force, while a system of courts was set up that would meet the requirements of Article 125. This period was to last no longer than five years. Many of the provisions of the Constitution, however, were not put into effect by the end of that five-year window. This necessitated the adoption of the small law on the judiciary in 2001.1
The latest large-scale change to the judiciary, the Law of Ukraine On the Judiciary and the Status of Judges, No.2453-VI ("judicial reform"), was adopted by the Rada on July 7, 2010, and signed into law by the President on July 27, 2010. Although comments on the draft of this new law were submitted by the European Commission to Democracy through Law (Venice Commission) and the Rule of Law USAID project, most of these comments were not incorporated into the law that was passed. Unfortunately, Ukraine’s organized legal community of lawyers and jurists has kept silent on this topic.
The law did include a number of positive and progressive provisions that intend to aid judicial independence, including automatic/random case assignment, inclusion of the State Judiciary Administration within the judiciary itself, improvements to court financing, a financial disclosure requirement, provisions for training judges, and a reduction of the number of justices of the Supreme Court.
On the other hand, many provisions of the new law are problematic. For example, under Article 19, the President of Ukraine can create and abolish courts of general jurisdiction, based on a recommendation from the Minister of Justice and following a proposal from the chief judge of the relevant high specialized court. The Constitution does not, however, give the President the power to liquidate courts, and allowing the executive to do so would place too much power in one person’s hands.
Another key area of concern is the decreasing role of the Supreme Court of Ukraine under the new law. Under the Constitution, the Supreme Court is the highest judicial body within the courts of general jurisdiction. Pursuant to the new Law, however, the high specialized courts can decide whether to submit the case for further review to the Supreme Court. The Supreme Court’s power essentially vanishes under this new law, since it cannot exercise its own discretion over the cases it hears.
Furthermore, under the new law, a vote of no-confidence in the Chief Justice can now be taken by a lower-than-normal quorum of the Plenary Session of the Supreme Court. This is a questionable practice. Under Article 45, a Plenary Session is competent if at least two-thirds of its members are present, "except for events envisaged by this Law." Under Article 43, a Plenary Session can convene to issue a vote of no-confidence in the Chief Justice with only a majority of the Plenary Session present. This type of vote is sufficiently serious to warrant at least the presence of the normal quorum of the Plenary Session, and it is questionable why a lower-than-normal quorum should be able to convene to take such serious action. In addition, selection of the Chief Justice by the Plenum of the Supreme Court has recently become political, since the Chief Justice and other officials are not selected individually but by list, which implies an association reminiscent of a political party.
As outlined in the new law, the selection process for judges is also too political, since it involves the High Council of Justice. This involvement politicizes the selection process, since a majority of the Council’s members belong to or are appointed by the executive or legislature. Ukrainians must be able to trust that their judiciary serves the law, rather than a political party, and requiring judges to receive the recommendation of a political body hinders this trust. The new law also requires that judges take an oath of office at a ceremony in the presence of the President. This could pose problems if the President refuses to attend such a ceremony, which could prevent a judge from being sworn into office. A similar problem occurred in Ukraine when the Parliament would not convene to swear in Constitutional Court judges, which caused that court to lack a quorum for a ten-month period. These types of political maneuvers, which are not provided for in the Constitution, should be removed from the process of appointing judges.
International observers have been concerned about the politicization of the High Council of Justice. The report of the Co-Rapporteurs on Ukraine to the Parliamentary Assembly of the Council of Europe ("PACE") expressed worries about this politicization, since the majority of the members belong to or are appointed by the executive or legislature. Many have questioned the Council’s neutrality and capacity, following the President’s appointment to the Council of the Head of the Security Service of Ukraine, since he is a close ally of the President with no legal background. Although that official has now resigned from the Council, appointment of political allies harms the selection of qualified, non-partisan candidates for judicial office, and lends the appearance of impropriety to judicial selection.
In October 2011, the Verkhovna Rada passed a Law to amend the law regarding the consideration of cases by the Supreme Court of Ukraine, No. 9151. Some argue that these amendments enlarge the powers of the Supreme Court by allowing that court to decree new decisions instead of merely sending cases back to High Specialized Courts, as well as by obligating other courts to consider the conclusions of the Supreme Court when resolving similar cases, increasing the number of judges to forty-eight, and including important rules for organizing the work of the Supreme Court. The law, however, did not change the essence of "the judicial reform, " since the Supreme Court cannot independently decide which cases it takes for review. Moreover, if a High Specialized Court decides that only procedural rules of law were violated, then case will not be sent to the Supreme Court but will be reviewed by the High Specialized Court.
Prominent Values in the Constitution
The Constitution enshrines a few key values in its text. Chief among the values is Article 8’s emphasis on the rule of law, which is supposed to be "recognised and effective" in Ukraine. 1The rule of law is the lynchpin of the promotion of democracy throughout the world, and democracy, in turn, provides a better and more prosperous economic life. The rule of law has at least two important components to it. First, the law must be supreme. All persons, whether private citizens or government officials, must be subject to the law. Second, there must be a concept of justice that emphasizes interpersonal adjudication; law must be based on standards and universally applicable procedures.
For the rule of law to be upheld, there must be a strong and independent judiciary; as there cannot be a market economy without private property ownership, there cannot be respect for the rule of law without an independent judiciary to enforce it. This judiciary, furthermore, must be one that exists in a system of separate powers.
A political system based on the separation of powers with appropriate checks and balances is vital to the preservation of democracy. The aim of a judiciary and, more broadly, of a government, is to provide stability through the consistent application of the law and adherence to the Constitution. The separation of powers is an especially effective way to do this, since it sets up a system of balances under which the different branches watch each other and keep each other in check. In order for separation to be effective, the different branches of government must be co-equal, with each wielding sufficient power; no one branch can so dominate the government as to render separation irrelevant. Separation of powers bolsters this confidence by using the judiciary to check any undue pressure that might be exerted by the executive or legislative branches.
A strong judiciary must be co-equal with the other branches of government. This means that the judiciary–and each individual judge–must act as co-equal with and independent from the other branches of government. Judges can only achieve independence and respect if they are not beholden to any other branch of government or political party. It is vital that courts have jurisdiction and the power to restrain the legislature or executive by declaring laws and official acts illegal or unconstitutional when they abridge the rights of citizens. Furthermore, for judicial independence to have practical effect, the court’s interpretation must be accepted and enforced by the legislative and executive branches of government. This premise of equality forms the backbone of democracy.
Judges must also internalize the importance of equality. 1In the United States, becoming a judge represents a noticeable achievement and responsibility. Being a judge means holding one of the most respected positions in American society. Judges must be honest-brokers; they must be independent from and neutral among the parties that appear before them. Judges must decide matters before them impartially, on the basis of the facts and the law, without any restrictions, improper influences, inducements, or threats, direct or indirect, from any party or institution for any reason. A judge’s moral commitment to this form of independence eliminates favoritism and corruption from the nation’s judicial system. If judges fail in this duty the public will lose confidence in the basic equity of its society, generating cynicism, anger and instability.
The Current Judicial Climate in Ukraine
Deputy Omelchenko has come to the conclusion that the President is conducting a "consistent and systematic annihilation" and "purposeful and systematic destruction" of the Supreme Court of Ukraine. The pogrom is being carried out by transferring the power of the Supreme Court to other specialized courts, by harassing judges and their families with baseless criminal charges, and by setting up the High Council of Justice as an overwhelming force of disciplinary proceedings that can be used to pressure judges into compliance with the President.
The devaluation of the Supreme Court conflicts with the Constitution. As noted above, the Constitution guarantees to Ukrainians that one court—the Supreme Court—will be the highest court in the land, but the recent judicial "reform" has stripped the court of its power to hear final appeals in many cases, as it can hear only those cases that are sent to it by high specialized courts. The Constitution states that the Supreme Court is the highest judicial body, and the new law essentially removes this constitutional role. It is unlawful to pass laws that conflict with the Constitution, and any amendment process to the Constitution must follow the legal requirements of that document.
Not only were the Supreme Court’s functions substantially decreased, but it is "subject to incredible pressure" and "interference with its activities." Politicization and broadening of powers of the High Council of Justice, a body that brings recommendations for appointments and discharges of judges, is an issue of major concern. Recent high-profile discharges for oath-breaking and other initiatives to dismiss judges, reduction of the number of judges, worsening of working conditions (including accommodation of high specialized court in the buildings of the Supreme Court), and bringing criminal charges against judges’ family members can only work to subdue and suppress the Supreme Court of Ukraine. The aim is clearly the promotion of the political power of the President and his team at the expense of the judiciary and, indirectly, the people of Ukraine.
Although many justices on the Supreme Court apparently have stood up to the President as of late, it appears from Deputy Omelchenko’s report that lower courts have come under the sway of the Presidency. In September 2011, a lower court prohibited the plenum of the Supreme Court from organizing specifically in order to interfere with the election of the Chief Justice and to hamstring the proper functioning of that court. This type of action hurts all Ukrainians, since they no longer can feel confident of an independent judiciary.
When Ukraine’s Constitution was first adopted in 1996, many, including the Venice Commission, commended Ukraine for enacting a document that guaranteed human rights. Now, however, Ukraine finds itself in the unenviable position of having its actions questioned and condemned by those same observers. Currently, attempts to sign an association agreement with the European Union hinge on the release of former Prime Minister Yulia Tymoshenko, and the international community has grown gravely concerned with trials of political figures in Ukraine. A strong, independent judiciary can assure both international observers and Ukrainians that people are tried for violations of the law, not for political disagreement.
Hopefully, the commission to rewrite the Constitution, headed by former President Kravchuk, will keep these comments in mind as it carries out its work.
Bohdan A. Futey is a Judge on the United States Court of Federal Claims in Washington, DC, appointed by President Reagan in May 1987. Judge Futey has been active in various Rule of Law and Democratization Programs in Ukraine since 1991. He has participated in judicial exchange programs, seminars, and workshops and has been a consultant to the working group on Ukraine’s Constitution and Ukrainian Parliament. He also served as an official observer during the Parliamentary elections in 1994, 1998, 2002, and 2006, and Presidential elections in 1994, 1999, 2004, and 2010, and conducted briefings on Ukraine’s election Law and guidelines for international observers.
Freedom of expression
Freedom of speech reduced in 2011, though some glimmers of hope emerged
Stop Censorship and a number of Ukrainian media associations have issued a joint statement regarding freedom of speech in 2011. The statement, made public at a press conference on 22 December, speaks of a reduction in freedom of speech, increase in censorship and the number of cases where journalists have been obstructed in their work. At the same time it points to dialogue initiated with the government and the adoption of new laws which can form the basis for improvements in the situation.
Freedom of Speech in Ukraine in 2011: Joint Statement
2011 saw a reduction in freedom of speech in Ukraine. This was confirmed through information gathered by Ukrainian journalist organizations. There was an increase in the number of attempts to directly obstruct journalists in their work, including physical attacks. The Institute for Mass Information [IMI] and Reporters without Borders [RWB] report 24 cases this year of aggressive behaviour or attacks on journalists while carrying out their work were recorded, with at least 35 journalists affected. This is against 21 such cases in 2010 involving around 26 journalists.
Moreover in July this year there was a case of large-scale brutality against journalists outside the Pechersky District Court in Kyiv with around 30 journalists injured. From October to December 2011 more than 10 journalists were injured while covering protests in Kyiv. There were also more than 30 cases where journalists were obstructed when carrying out their lawful work, and their access to information was restricted (the number was roughly the same in 2010).
A journalist was also killed this year – journalist-photographer Vitaly Rozvadovsky. The investigators have not ruled out the possibility that the crime was linked with his professional activities.
During 2011 there was an increase in varied forms of censorship in the Ukrainian media. For the first time since Kuchma’s presidency there were signs indicating the existence of censorship from the top down. Cases of censorship are confirmed both in information from the regions (Kherson media outlets have spoken of receiving phone calls with instructions from the Regional State Administration, while in Kharkiv the opposition news channel ATN was removed from air), as well as from the centre (a statement from sources within the newspaper Segodnya regarding phone calls giving instructions on publications from the President’s Administration.
One can also find indirect proof of censorship in the lack of pluralism of views in the Ukrainian media and on television, as well as the fact that most television channels muffle the same important subjects which are inconvenient for those in power. These are in the first instance topics linked with politics, the trial of Tymoshenko; the fall in rating of the Party of the Regions; encroachments of rights and freedoms; threats to freedom of speech; as well as statements from high-ranking officials from Western countries, the EU; the European Court Parliament regarding democracy in Ukraine, etc. At the same time a large number of social and economic problems have appeared which TV channels are also silent about: lowered living standards, increased tariffs, protests etc.
According to TV monitoring carried out by Telekritika, if in July 2010 channels were silent about approximately 56 important subjects per month, in September 2011 this figure already stood at 456. The worst offender is the State-owned First National Channel, or UTV-1. The fact that the media outlets behave in almost identical fashion suggests that external management of the general direction of their information policy which according to many sources is being introduced directly from the President’s Administration and the Cabinet of Ministers, as well as due to self-censorship of the top management of the channels who understand “the general policy of loyalty”.
Despite the fact that the Gongadze case is pivotal for Ukraine and of enormous public interest, the court hearings in the Pukach trial have been held completely behind closed doors. This year criminal proceedings were initiated against former President Leonid Kuchma and were then terminated on the basis of a legislative formality which yet again demonstrated the bias of Ukraine’s judicial system. These facts suggest the lack of real political will to identify those who really order the murder of journalist Gongadze.
Other factors indicating deterioration in freedom of speech include the corrupt allocation of frequencies in digital multiplex, as a result of which regional broadcasters have found themselves struggling for survival. There was no transparency regarding the criteria for allocating frequencies, and most of them were allocated to channels known for their links with the regime. The disconnection of many television channels from digital broadcasting will deal a serious blow to media pluralism in Ukraine. This demonstrated the unacceptable lack of independence the media regulatory bodies.
As far as positive changes were concerned, these were first and foremost the entry into force of the Law on Access to Public Information and amendments to the Law on Information, as well as the wide-scale campaigns for promoting these laws run by journalist and civic organizations.
Another positive element was the consolidation of the journalist community – eight media organizations endorsed a memorandum on the creation of a Ukrainian Media Association, while the Independent Media Trade Union began overcoming its crisis and reviving its regional branches. The driving force for this process has been the Kyiv Independent Media Trade Union. On 23 November all media organizations for the first time united in order to hold a joint protest against impunity for journalist killings.
In 2011 those in power began systematic dialogue with the journalist community. An Inter-departmental Working Group was created under the President to analyze to what extent legislation on freedom of speech and journalists’ rights were being observed
Is the regime ready and capable of achieving serious progress in the area of freedom of speech and working with civil society and the media? That remains to be seen.
There were also training sessions with the President’s Guard, and a working group was created between representatives of the journalist community and the police aimed at drawing up instructions on interaction between the police and the media. The Minister of the MIA, Vitaly Zakharchenko issued an order on foster professional journalist activities.
Thus while 2011 saw a worsening in the situation with freedom of speech, an increase in censorship and the number of cases of obstruction of journalists in their work, the consolidation of the journalist community, the initiating of dialogue with those in power and the adoption of new laws give grounds for improvements.
The statement was also signed by the Institute for Mass Information; the Media Law Institute; Internews Ukraine; the Media Front Trade Union; the Svidomo Journalist Investigation Bureau; Telekritika and the Committee for the Monitoring of Press Freedom in the Crimea.
Freedom of peaceful assembly
Pressure and Offensive on Social Protests
The Centre for Society Research has issued its monitoring report for 10 to 16 December. During that period it recorded an increase in the number of protests and, at the same time, in the number of repressive measures taken against them. If in the previous week there had been 40 protests, the number had now leapt to 72. In 24, or one third of the cases, the protests met with some form of repressive measures. This is the highest figure over the last three months.
On 13 December outside the Kyiv Court of Appeal a rally of opposition parties took place in support of Yulia Tymoshenko. Their attempt to set up a stage resulted in scuffles with the Berkut riot police present. The next day there was another scuffle when supporters of Tymoshenko tried to push their way through to the court.
In Kyiv on 10 December members of the Coalition of Participants in the Orange Revolution, the Black Committee and Brotherhood tried to set up a tent on the platform of the metro station Maidan Nezalezhnosti [Independence Square, the metro station leads out onto it – translator]. They were expressing protest at rigged elections in Russia and restrictions on peaceful assembly in Ukraine. There was a scuffle between protesters and the police, with one of the demonstrators being detained.
On 12 December the Zhovtnevy District Court in Zaporizhya passed sentence on activists from the Tryzub nationalist organization over the beheading last December of a bust to Stalin on the property of the Zaporizhya Communist Party. As reported, the young men received 2 and 3 year suspended sentences and were also ordered to pay the Communist Party around 10 thousand UAH. A court order had banned the rightwing Svoboda Party from holding a picket, however Svoboda activists, as well as Communist Party supporters gathered outside the court. A fight broke out and participants were detained.
Aside from those situation-linked repressive measures against ideological and political protests, the authorities also applied systematic repression against socio-economic protests. The protests by Chernobyl clean-up workers and Afghanistan War veterans reached their peak in the second half of November and during the first 10 days of December, began petering out. Partial concessions and repressive measures by the State removed the tent camps in Donetsk, Kyiv, Kharkiv, Lviv and other cities. The hunger strikes ended and there seemed nothing to stop the local authorities from putting up New Year trees. The tradition with these trees was most often used to justify court bans and the use of enforcement measures against protesters.
On 11 December in the evening the Chernobyl clean-up workers in Donetsk officially announced that they were ending their protest. Members of the municipal services and police used force to dismantle the last tent remaining from the tent camp. There were several people in the tent at the time who refused to leave it (as reported, by no means all the protesters supported the decision to end the protest - translator). The law enforcement officers ignored this, as well as the fact that the tent was officially registered as a public reception office by an MP. Trees were erected at the place where the protests had stood, outside the Pension Fund building, the next day.
Meanwhile in Lviv where the tent camp remained until 15 December, the Chernobyl clean-up workers complained of pressure and intimidation by the law enforcement bodies and unidentified individuals. The latter turned up at the protesters’ homes and threatened to deprive them of their disability group status. There was also increased police pressure outside the tent camp itself.
On 14 December in Kharkiv the police dispersed a rally of Chernobyl clean-up workers who arrived at the Regional State Administration to mark the special Day in memory of those who took part in the clean up operation after the Chernobyl Disaster. The court order banning the protest was handed to the protesters just a couple of minutes before it was due to begin.
That same day in Kyiv there were scuffles between the organizers of a protest by Chernobyl clean-up workers outside the Cabinet of Ministers and Berkut riot police officers. The situation became more fraught after the demonstrators tried to set up a stage with sound equipment which the Berkut officers tried to confiscate, resulting in a fight.
On 15 December in Donetsk the police prevented representatives of an MP from erecting a tent for receiving Chernobyl clean-up workers. [This method has long been used by MPs to flout court orders banning peaceful protests – translator]. The police explained their actions by citing a ban from the City Executive Committee against any tents.
In Kharkiv on 16 December the police appeared at the flat of the leader of the Kharkiv City Committee of Veterans of Chernobyl, Vladimir Proskurin and took him by force for questioning. Another activist was detained at the Chernobyl Union of Ukraine conference outside Kyiv that same day and brought back for questioning.
The alleged grounds for the questioning were suspicions that their papers identifying them as former Chernobyl clean-up workers are forged. Both men were questioned until late in the evening on Friday and then again on Saturday. Both had charges laid, however these were withdrawn on Monday.
The men are convinced that they were detained to stop them taking part in the above-mentioned conference which was due to elect Yury Andreyev whom many of the protesters see as having sold out the movement (see Chernobyl’s Ongoing Victims).
The measures by the State authorities against former Chernobyl clean-up workers over the last week can only be described as pressure and offensive. One has the impression that after the termination of mass-scale and long-lasting protests, the regime has decided to crush those disgruntled, show their sphere of influence and “put them in their place”. So that others don’t think to follow their example, and come out onto the streets to uphold their rights. Fortunately the former Chernobyl clean-up workers have set another example, showing how, through protest, they can force the government to make concessions.
Social and economic rights
War against Corruption lost from the outset
On 28 November the Cabinet of Ministers approved the State Programme on Preventing and Countering Corruption for 2011-2015. Oleh Yeltsov, Editor of the website TEMA decided to study it and was unimpressed. He suggests that the document shows all the signs of having been written by officials needing to get somebody off their back and knowing they’re not likely to hold their jobs until 2015 when they’d have to answer for the programme. He believes the war has been lost already.
Over four years the amount allocated is 820 million UAH [1 EUR = roughly 10.5 UAH]. The author says that people’s view of whether this is a lot or very little may vary, but points out that funding for the vast majority of measures is not envisaged at all. In times of crisis, he says, the Cabinet of Ministers thinks money should be spent on the most important things, and clearly does not think fighting corruption falls into that category.
The Health Ministry however should be pleased since of the 820 million UAH, that Ministry will receive 803.5 million. Perhaps, he suggests, given this lion’s share of the funding, the Health Ministry should become the body answering in the interim for carrying out the anti-corruption programme, and not the Justice Ministry.
“It’s extremely odd yet for some reason the Cabinet of Ministers and the Justice Ministry which prepared the Programme in coordination with other ministries consider the main element in overcoming corruption in the country to be organizing an electronic record of medical forms (medical certificates”. This, after all, has been allocated the 803.5 million UAH over four years, the lion’s share of the anti-corruption budget.
To be fair, however, he mentions that the money is not only for organizing issue of medical certificates. The general item concerning the major part of the anti-corruption legislation is in Section 1 (Reform of the system of State administration and administrative procedures. “2. Use of innovative technologies which increase the level of objectivity and transparency of decisions taken by bodies of power, including acceleration of the introduction of a system for electronic document circulation and electronic signatures at national and local level”.
What is not clear, the author says, is what this has to do with the Health Ministry. Everybody knows that the key player in fighting corruption is the Ministry for Economic Development. Perhaps there is a task involved here of creating an electronic queue, and this is of major importance for the Health Ministry whose establishments have monumental queues. Nonetheless, this needs to be organized and implemented by the Committee for State Automation of Information, as well, in fact, as the rest of the measures of this item of the programme which has eaten up most of the anti-corruption funding.
“How did they dare to entrust all of that to a structure which against a background of permanently changing ministers has buried once and for all its “profile”, - medicine, with numerous lobbyists of pharmaceutical companies, and corrupt dealers making money from procurement of medicines flourishing, together with siphoning off public funding? The Health Ministry will no doubt successfully rip through those 800 million or so UAH, but what relation does that bear to countering corruption? More likely to strengthening and supporting it”.
The author suggests that he could end his analysis at this point, but says that instead he’ll follow the document to the end in order to make one extremely important conclusion.
Section IV is about improving conditions for access by individuals, legal entities and civic organizations which don’t have legal entity status to information about the activities of state bodies and bodies of local self-government. It is planned to strengthen the role of the public “in the formation and registration of State policy”. What such registration of State policy means nobody knows, yet just about every state body and ministry seems to be drawn into the process of improving legislation, just not the public. The author says that it is easy to guess what these “improvements” will come out like when introduced by those officials in order to enhance the public’s scrutiny over them!
The author is generally scathing with regard to the general professional level of those who drew up the Programme – in places somewhat controversially. For example, he objects to Section X which envisages a system of professional training for judges, those aspiring to become judges, as well as police and prosecutor staff regarding application of anti-corruption legislation, which he considers excessive. It is needed, he asserts, only by those directly involved in fighting corruption. Since, he says, judges, prosecutors and the police are the most notorious for corruption, will these courses not be teaching them how to avoid arrest?
Section XIII “Reduction of the level of corruption in the private sector” mainly boils down to educational and propaganda programmes with no practical measures even mentioned for fighting corruption in this area.
“However the authors did not forget what would appeal to the public and get them praise from the international community. We read in Section XV. Activation of international cooperation on prevention and countering corruption: Item 4. Formation of Ukraine’s image as a country that is actively countering manifestations of corruption and receive international support for these activities. Let’s be specific – are we countering corruption or forming the image of the regime fighting corruption? Perhaps we should be spending money on the struggle, not on a whistle? “
The author’s main conclusion is that nobody is planning to fight corruption in the country.
The longer article of which this is a summary was written as part of the Kharkiv Human Rights Group’s journalist investigations programme with the support of the International Renaissance Foundation.
Point of view
Myroslav Marynovych: We are steadily losing freedom
Every week we feel the lack of some element of freedom in Ukraine. The situation conjures up in my mind the image of a pet dog tied to his kennel. His owner constantly shortens his lead, and it can still turn out that the dog has had all freedom taken away. Ukrainian political technology of the present day does not envisage a one-off imposition of dictatorship, but steadily accustoms the population to loss of their freedom.
This view was expressed by the Vice Rector of the Ukrainian Catholic University, Myroslav Marynovych during the morning programme on TVi.
He believes that Ukrainians should not expect altruism from Europe or that somebody will look after them. “However Europe has now realized that it cannot make clear demands of Ukraine since there are not really bilateral relations, but trilateral – Ukraine, Russia and Ukraine. By imposing various conditions, Europe effectively hands Ukraine to Russia”.
Myroslav Marynovych believes that Ukrainian intellectuals as a rule adopt western models, however these do not work in the context of Ukraine. “The pro-Russian direction uses techniques to manipulate the Ukrainian population and stop it from noticing that it is already on a different ship. And the authorities deliberately do not react to the demands from the street”.
He adds that the Ukrainian authorities are petrified of those accustomed to living in conditions of freedom since such people react to the lack of free thinking. He says that the Ukrainian Catholic University could not have emerged were it not for Father Boris Gudziak, Father Mykailo Dymyd – Ukrainians who came from the diaspora and introduced a totally new quality of teaching. “They have a different mentality and as a result we are successful”.
Asked by journalists whether Ukraine is not risking that in today’s conditions it will lose a critical mass of its own potential, , Myroslav Marynovych answered: “We have already lost a lot, I see that in Lviv. In the past its spiritual and intellectual potential was enormous. Today we feel that Lviv is just gliding along.”
The Ukrainian Catholic University Press Service
News from the CIS countries
Open Appeal to the Kazakhstan Authorities
The Ukrainian Helsinki Human Rights Union and Kharkiv Human Rights Group have issued the following open letter to the authorities in Kazakhstan regarding the events in Zhanaozen.
We have learned that on 16 December 2011 on the central square of Zhanaozen a peaceful strike by workers of a local company turned into a clash with the police who opened fire on the strikers. The use of lethal firearms was later explained as due to concern for the safety of State property since the demonstrators or unidentified persons acting as provocateurs, had set fire to the local company’s administrative building, the premises of the local administration and hotels.
Straight after this, we understand, , the authorities blocked mobile and Internet links with the town and declared a state of martial law, with journalists not being allowed in.
Ukraine’s human rights organizations are concerned that members of the authorities have used firearms against peaceful citizens holding a demonstration. In accordance with international standards, the life of each individual is of fundamental value and must be protected by the State. The use of firearms by units which are specially trained, armed and have means of defence against peaceful civilians in order to protect property is clearly inappropriate.
We are seriously concerned by the fact that the Kazakhstan authorities have blocked links between the residents of Zhanaozen with the outside world, and are also preventing journalists from getting to the town to cover events. Such behaviour by the authorities creates the conditions for arbitrary rule, abuses and unwarranted violence against the town’s residents. It also arouses well-founded suspicion that official information about the events in Zhanaozen does not reflect the real situation. This is also a cause of immense distress for relatives and close friends living in other cities who, while hearing information about people being killed and injured, cannot find out what has happened to their loved ones.
We call on the government of Kazakhstan to immediately allow independent journalists and representatives of national and international civic organizations into Zhanaozen, and to also remove any obstruction preventing contact between the town’s residents and the outside world. We also call for an independent, thorough and objective investigation to be carried out at once into cases where the authorities have used arms against town residents resulting in death and serious injury.
Russian journalists condemn ’gag’ after Putin story
Journalists at a Russian newspaper have signed an open letter of protest after its owner fired two top executives over a photo insulting Vladimir Putin.
More than 60 staff at Kommersant, a liberal business daily, signed the letter after the owner, metals magnate Alisher Usmanov, sacked the two men.
"We are being compelled to be cowards, which is unworthy and unproductive, " the internet letter said.
Mr Usmanov said he understood the journalists but stood by his decision.
A report on Russia's disputed parliamentary election in Monday's issue of Kommersant Vlast, the newspaper's magazine, contained a photo of a spoiled ballot paper with an obscene message to Mr Putin scrawled over it in red ink.
The magazine cover shows Russia's powerful prime minister staring into a ballot box with the headline "Win for United Stuffers", playing on the name of Mr Putin's party, United Russia, and the alleged practice of stuffing ballot-boxes with fake votes.
Mr Usmanov subsequently sacked the magazine's editor, Maxim Kovalsky, and the head of the publisher's parent holding company, Andrei Galiyev.
Demyan Kudryavtsev, head of the Kommersant Publishing House, took the blame and submitted his own resignation, saying on his blog that the magazine issue had been published "in violation of internal procedures, professional journalistic standards and the Russian law".
In their letter, published on the openspace.ru website, the journalists argue that the obscene words in the photo were not "the words of the magazine... but a photo capturing the true behaviour of voters at the election".
Defending Kovalsky's integrity, they say: "For us to defend him is to defend our own honour and dignity."
"We regard his dismissal as an act of intimidation aimed at preventing any critical words about Vladimir Putin...
"We take particular offence at the attempt to present the dismissal of a man for his professional position as a fight for the purity of the Russian language.
"This is the same kind of fabrication that offended people at the election."
In addition to the Kommersant staff, journalists from the online newspaper gazeta.ru signed the letter.
Mr Usmanov told Russian media: "I believe I took the right decision and do not intend to reverse it.
"Emotionally, I can understand the journalists speaking up for sacked top managers...
"However... Kommersant Vlast is a respectable, independent, socio-political publication."
Writers in recent issues had, he said, "crossed the line, breaking ethical standards accepted by decent society".
Mr Usmanov, who is a major Arsenal FC shareholder, also made clear he had no intention of selling Kommersant despite an offer from fellow tycoon Mikhail Prokhorov to buy it.
"Prokhorov did indeed phone me and asked me to sell Kommersant, " he said. "I replied that I liked his joke."
Mr Putin is standing for re-election as president in March, and Mr Prokhorov has declared his intention to stand too.
Russian Public Figures announce formation of Roundtable
A group of prominent Russian public figures have announced the formation of “Roundtable 12 December” (this being Constitution Day) to seek ways for a peaceful change of regime.
The founding meeting was held on Monday. Its participants included: former political prisoner and Russia’s first Human Rights Ombudsperson Sergei Kovalev; Head of the Moscow Helsinki Group Ludmila Alexeeva; writers Vladimir Voinovych and Alexander Kabakov; politicians Boris Nemtsov, Mikhail Kasyanov and Vladimir, and others.
The appeal passed calls for:
the immediate release of all political prisoners;
for the elections to the State Duma to be declared void
changes to electoral legislation;
removal of obstacles to registration of parties;
appointment of a new head of the Central Election Commission
Give us new elections!
Alexei Navalny: Final Battle between Good and Neutrality
They stole my vote [the word in Russian also means voice] Photo from Radio Svoboda
Russian blogger and anti-corruption campaigner, Alexei Navalny, imprisoned for 15 days after the elections on 4 December made the following address from his blog to the tens of thousands of demonstrators defending their right to fair elections throughout Russia
To the demonstrators on 10 December
It’s easy and feels good to fight for your rights - and not at all frightening. Don’t believe the nonsense about inevitable riots, fights and burning cars.
The single, yet most powerful weapon, which each of us needs, is a sense of personal dignity.
We simply have to understand that this sense cannot be put on or taken off like a velvet jacket. You don’t turn it on like a switch in the kitchen with friends and turn it off shamefacedly when talking with officialdom, the police or a member of an electoral commission.
There are people with a sense of personal dignity. There are many of them. Dozens of them are lying right now on ripped mattresses just next to me. And I know that thousands of them are standing on Revolution Square, on Bolotna Square. In Moscow and other cities in Russia.
There’s no repression and batons. There are no arrests and jailing for 15 days. All that’s nonsense. You can’t beat up and arrest hundreds of thousands and millions. They didn’t even frighten us, they simply convinced us for a time that the life of toads and rats, the life of mute sheep is the only way of being rewarded with stability and economic growth.
The fog is clearing and we can see that sheep-like silence was a gift only to the gang of thieves and crooks who became billionaires. That gang and their media servants are continuing to try to convince us that election fraud in favour of their party of crooks and thieves is the necessary condition for having hot water in our taps and cheap mortgages. We were fed that for 12 years. We’ve had a gutsful. The time’s come to throw off our stupor.
We are not cattle and not slaves. We have a voice and we have the power to stand up for it.
All those who have a sense of personal dignity should feel solidarity. It doesn’t matter where they are at this moment: on the squares, in kitchens or in special holding units. We feel our solidarity with you and we know that we will win. It simply cannot be otherwise.
We say to you: One for all and all for one!
Alexei Navalny was sentenced to 15 days administrative arrest over peaceful protest immediately following the elections. On Wednesday 7 December Judge A. Kriivoruchko [Криворучко А.А] of the Tverskoi District Court in Moscow upheld this sentence. Krivoruchko has already achieved notoriety through his twice extended the detention of Sergei Magnitsky, the anti-corruption lawyer killed in a Russian detention centre.