Position of the Kharkov group for human rights protection on introduction of changes into the laws on rehabilitation of political prisoners
The situation with rehabilitation of the victims of political repressions, which has formed in Ukraine, is undetermined and unjust to the victims of the repressions and, even, causes violations of the Constitution of Ukraine. The necessity of changes in this sphere is confirmed by the fact that many different drafts of the law on rehabilitation have been proposed by the Cabinet of Ministers; MPs L. Lukyanenko; L. Taniuk; P. Kachur; S. Stashevskiy, R. Tkach and V. Lebedivskiy; M. Kruts and R. Tkach; M. Onishchuk; S. Gavrish; all-Ukrainian union of political prisoners and the repressed.
The Ukrainian Law of 17 April 1991 was the first law on rehabilitation adopted in the former USSR republics. Yet, this law contained a lot of drawbacks: rather indistinct and narrow definitions of the political motives of repressions, undetermined status of many categories of victims of political repressions, in particular, representatives of the deported peoples, etc.
Some drawbacks of this law were taken into account by other republics, for example, by Russia in the same year. Later Russia also introduced proper amendments to the law, in particular, the Russian law contains more distinct articles and formulations concerning the political motives of condemnation, the members of families of the repressed are related to the persons, who suffered from repressions. And, finally, according to the decision of the Constitutional Court of Russia, the minor children, who lost their parents as a result of repressions, are also regarded as the repressed and liable to rehabilitation.
According to Resolution No. 2803-ХІІ of the Supreme Rada of Ukraine of 9 November 1992, citizens of Ukraine, which had been repressed outside Ukraine and were rehabilitated, have the right to get the privileges in Ukraine, stipulated by the Law of Ukraine of 17 April 1991. Yet, our Law, in contrast to the Russian one, does not envisage the legal status of families of the rehabilitated and is not applied to them. This factor essentially influenced the state of the victims of political repressions. The situation has formed, when the Ukrainian citizens, rehabilitated in accordance with the laws on rehabilitation of other CIS countries, have the right for privileges (the Commissions in charge of restoration of rights of the rehabilitated obtain the applications of these citizens with references to the above-mentioned Supreme Rada Resolution), and other Ukrainian citizens, members of the families of the repressed in Ukraine, have neither the status of rehabilitated nor the privileges. We reckon that this is a violation of Articles 24 and 46 of the Constitution of Ukraine.
CATEGORIES OF THE VICTIMS OF POLITICAL REPRESSIONS THAT MUST BE REHABILITATED
We believe that it is necessary to introduce the amendments into the operating Law on rehabilitation. Rehabilitation of the following categories of the victims of repressions should be envisaged by this Law:
1. Citizens of Ukraine, who were condemned because of the political motives, for which rehabilitation is envisaged in Ukraine, but were repressed in the CIS countries, where the laws on rehabilitation do not exist (for instance, well-known public figure Mustafa Djemilev was repressed in Uzbekistan and is not rehabilitated until now);
2. Children of the rehabilitated, who, as a result of the repressions, were taken to special NKVD establishments and orphanages, where they were kept as children of the “enemies of people”;
3. Children, who were born or stayed with their parents in penitentiaries or in exile;
4. Children, who were deprived of guardianship of both parents (for example, father had been repressed, and the mother died some time later);
5. Deported citizens. Unfortunately, the Law on rehabilitation does not consider this category of the repressed. When the law was discussed, it was planned to adopt special law about rehabilitation of the deported peoples. Yet, this law was not adopted, although the corresponding draft was handed to the Supreme Rada for three times. The first law draft “On rehabilitation and guaranteeing of the rights of persons belonging to the ethnic groups that were repressed and deported from the territory of Ukraine” was prepared by MP O. Kucherenko and presented on 23 February 1999. The draft was considered by the Supreme Rada on 2 November 1999 and was rejected. Another draft of the law with the same title, presented by MP P. Movchan on 11 December 2000, was not considered at all. It is noteworthy that we are saying not only about the deportations from the Crimea at the end of the WW2 (Bulgarians, Armenians, Greeks, Crimean Tatars, etc.), but also about deportations of representatives of other ethnic groups in 1944-1947: Germans deported from the Southern Ukraine, Hungarians of the Transcarpathian region, Romanians of Bukovina, Ukrainians of Kholmshchina, etc. Unfortunately, in May 2004 the Supreme Rada also rejected the law draft “On restoration of rights of the persons deported because of their nationality» presented by the Cabinet of Ministers of Ukraine. By the way, the drafts by L. Lukyanenko and L. Taniuk envisaged rehabilitation and restoration of rights of the persons deported because of their nationality;
6. Persons condemned by Ukrainian courts according to Article 72 of the CC of the UkrSSR for refusal to serve in the Armed Forces (before the introduction of the institute of alternative service in December 1991). The matter concerns the adherents of the Protestant churches: Baptists, Pentecosts, Seventh-Day Adventists, Jehovahs witnesses and others. These religions prohibit to deal with arms, and the alternative service did not exist then. The youths, who refused from the military service, sometimes were condemned twice after Article 72, since the term of incarceration according to this article was 3 years, and the youths were called to the army in the age from 18 to 28. In our opinion, these persons may be regarded as the prisoners of consciousness, because they were condemned for their views. However, rehabilitation of this category of the repressed is not envisaged by the law on rehabilitation;
7. URA warriors. It should be noted that the prosecutors organs considered the cases of the URA warriors individually, and the persons, who had not taken part in the violent actions against the peaceful population, were rehabilitated. Yet, the URA warriors are displeased with the fact that they are not regarded as the participants of military operations of the WW2, but are still considered to be criminals.
8. Citizens, who were kept in preliminary prisons, special and filtration camps because of political motives, as well as in labor armies and penal battalions.
9. So-called “socially dangerous elements”, who were repressed either for the non-payment of too large taxes, or for the use of hired manpower.
The status of victims should be also given to the members of families (wife or husband, children, parents, sisters, brothers, etc.) of the repressed, who lived with them at the moment of repression, since the family members were, as a rule, fired, expelled from institutes, evicted from their flats, prohibited to live in some places, etc.
GIVING PRIVILEGES TO THE REHABILITATED IS A DUTY OF THE STATE
As to the consequences of rehabilitation, the conception must be determined first of all. Lately the officials say much about the burden of the privileges for the state and about their expediency. In our opinion, only professional and departmental (force structures, officials, etc.) privileges may be discussed and cancelled. The privileges of rehabilitated citizens must be considered by the state and society as a kind of penitence, compensation of moral and material damage inflicted by the state with the connivance of the society. By the way, the preamble of the Law of Ukraine of 17 April 1991 states the same. This means that compensations and privileges to the rehabilitated citizens is a state debt, which must be returned to the innocent victims. Yet, some MPs regard this as charity, so a new term – “state aid” is introduced in the new version of the law draft under the editorship of MPs S. Stashevskiy, R. Tkach and V. Lebedivskiy. This aid is rendered only in the cases, where the living standard of the rehabilitated is lower than the subsistence wage. The privileges stipulated for the rehabilitated must be given also to widows and widowers of the rehabilitated, if they have not created new family.
As to the talks about the lack of money for compensation of moral and material damage, it is sufficient to familiarize, even superficially, with the state budget-2003, which allots no money at all for the provision of the operating Law on rehabilitation, but astonishes with the expenditures for the upkeep of the power (Presidential administration, construction of new buildings for the Supreme Rada, sanatorium and resort complexes, etc).
We believe that the Ukrainian state must repay the debt to its citizens.
SUGGESTED DRAFTS OF AMENDMENTS AND SUPPLEMENTS TO THE LAW ON REHABILITATION
The law drafts on introduction of changes into the Law on rehabilitation can be divided into two classes: the law drafts that concern only separate aspects of rehabilitation, and the law drafts that represent the new versions of the Law. Taking into account everything above-said, the Kharkov group for human rights protection categorically protests against the half-measures contained in the drafts of the first group, in particular, in the draft of the Law of Ukraine “On introduction of changes into the Law “On rehabilitation of the victims of political repressions in Ukraine”” (concerning the status of minor prisoners) presented to the Supreme Rada of Ukraine on 18 June 2003 by the Cabinet of Ministers. This draft does not solve the main problems and violations of the Constitution. The draft of the Law of Ukraine “On introduction of changes into the Law “On rehabilitation of the victims of political repressions in Ukraine”” No. 4205 presented to the Supreme Rada by MPs M. Kruts and R. Tkach on 30 September 2003 envisages rehabilitation of the URA warriors and the persons, who rendered aid to them, as those people, who fought for Ukrainian independence. This draft also solves very narrow circle of problems and does not promote the harmonization of the Law as a whole. Now the Supreme Rada considers the draft of change of the operating Law by MP P. Kachur, which also does not meet the urgent need to regulate all drawbacks of the existing legislation on rehabilitation. This drafts equates the rehabilitated according to Article 3 of the operating Law (exiled and deported from their permanent place of residence) with the rehabilitated according of Article 1 of the same Law (condemned by courts or extrajudicial organs to deprivation of liberty or death penalty). All other questions remain unsettled.
The Supreme Rada also considers the draft of the Law of Ukraine “On introduction of changes into the Law “On pensions”” handed by MP S. Gavrish regarding the increase of pensions of rehabilitated citizens up to 150% of the minimal retirement pension, and the pensions of the members of their families, who were coercively resettled, -- up to 100% of the minimal retirement pension. This is a good idea, but it should be determined at first, who would be regarded as the rehabilitated and their family members.
In our opinion, both drafts of the new version of the Law on rehabilitation, presented by MPs L. Lukyanenko and L. Taniuk, take into account almost all drawbacks of the operating Law of 17 April 1991. The draft by L. Lukyanenko, handed on 18 March 2003, is characterized by distinct and clear definitions of all terms and provisions, which decreases the possibility of misinterpretation of the clauses of this Law. Besides, unlike the previous draft by L. Lukyanenko of 29 July 2002, the articles on consequences of rehabilitation are elaborated more thoroughly in this draft, and the expenses for their realization are reduced.
The law draft by L. Taniuk, which was recommended by the Supreme Rada as the basis for introduction of changes and amendments to the Law on rehabilitation, may be supported, but only after the correction of some essential mistakes:
1. The draft does not define the term “victims of repressions”, although this term is used in the Law (Article 10);
2. The refers of this draft to the articles of “this Law” refer, in reality, to the articles of the operations Law, and this causes absolute misunderstanding;
Moreover, we want to suggest the following propositions:
item 3 -- we reckon that it is impossible to recompense this horror completely, so it should be better to recompense the moral and material damage;
item 4 – to remove the phrase “because of nationality or other reasons”;
item 7 – to add the phrase “deportation from permanent place of residence, eviction with deterioration of life conditions”.
Article 6. It seems that items 1 and 4 are similar;
Item 8 -- what is the difference between the coercive eviction and deportation?
part 1 – “rehabilitated according to Article 6 (but not Article 1) of this Law”;
part 2 – the category “victims of repressions” is mentioned for the first time, but there is no definition of this term;
part 5 – it should be written “rehabilitated and victims of repressions”, otherwise pensions of the rehabilitated would not be increased (only in the case of their invalidity, which case is described separately), which is illogical and unfair;
part 6 – the phrase “Expenses allotted for privileges of the rehabilitated and victims of repressions are related to the protected part of the State budget” should be added;
part 11 – to correct “Action of Articles 8, 9 and 10 (but not 4, 5 and 6)”.
Along with the mentioned law drafts two other drafts of the changes to Law exist, which, in our opinion, do not suggest the urgently necessary changes that are stated above.
As to draft of the Law “On introduction of changes into the Law “On rehabilitation of the victims of political repressions in Ukraine”” No. 2040-2 presented to the Supreme Rada by MPs S. Stashevskiy, R. Tkach and V. Lebedivskiy on 13 May 2003, we reckon that it does not meet the urgent needs of introduction of changes to the existing Law, about which changes we have said above. The main drawback of this draft is conceptual: the term “state aid” must not be applied to the rehabilitated, because such compensation is a debt of the state, which must be paid to the repressed.
Article 4 envisages rehabilitation of the evicted, exiled and deported from Ukraine, but it is known that entire families and even villages were evicted from the Western Ukraine to Donbass and Slobozhanshchina, from the Kherson oblast to Crimea, etc.
If the state really, as it is written in the preamble of this draft, denounced the repressions and wanted to recompense the material and moral damage, then the condition of payment of compensation depending on the income of family would not appear in Article 7. Under such conditions any poor family should obtain the compensation, but this has no connection with rehabilitation. In reality that means that the state does not acknowledge either material or, especially, moral damage inflicted to its citizens as a result of repressions. In such case the financial aid can be envisaged (Article 8 part 19) instead of the state aid, or it can be cancelled at all.
Article 8 of the Law stipulates the increase of pensions of those citizens, who became invalids as a result of repressions, and those, who were rehabilitated in the accordance with Article 3 of the operating Law (exiled and deported). And the people rehabilitated after Article 1 of the Law, who stayed in concentration camps, but, fortunately, did not become invalids, will not get the increased pensions, and this is absolutely incomprehensible.
The Kharkov group for human rights protection suggests to present, as soon as possible, the draft of the new version of the Law, grounded on the law drafts of L. Lukyanenko or L. Taniuk with the account of our propositions for consideration in the Supreme Rada.
REHABILITATION OF THE DEPORTED
Taking into consideration the fact that deportation of citizens because of their nationality, independently of their age and family ties, concerns entire people and still is a very painful problem, a separate law should be adopted on rehabilitation of the persons deported because of their nationality. Three law drafts, presented by the Cabinet of Ministers, MPs P. Movchan and O. Kucherenko does not envisage concrete, at least minimal, steps and volume of restoration of rights and payment of compensations to the victims of deportation. It is planned to regulate these questions with special resolutions of the Cabinet of Ministers taking into account the abilities of the state. This can result in the situation, when the process of factual restoration of rights of this category of citizens will not be started in the nearest future. So, we believe that the law draft should be adopted, which was suggested by the Cabinet of Ministers of Ukraine, where all terms, procedures, conditions and concrete measures concerning the restoration of rights of the deported citizens are described definitely.
P.S. The Law of Ukraine “On restoration of rights of the persons deported because of their nationality» has been adopted by the Supreme Rada on 24 June 2004, but is not signed yet by the President of Ukraine.