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Infringements of freedom of expression during the 2006 election campaign

Yevhen Zakharov, Kharkiv Human Rights Protection Group

The aim of this article is to demonstrate how electoral legislation and the way it is being applied are seriously violating freedom of expression. The freedom to engage in political discussion is a crucial prerequisite for making considered and well-founded political decisions on any public issues. During election campaigns freedom of political debate is in special need of protection..  Yet in Ukraine the situation has become quite the opposite. This freedom has been so significantly narrowed that, in my view, the election campaign has become sterile, bland and quite simply boring.

Section 8 of the Law on the Elections vs. Article 34 of the Constitution: Total victory

A motley array of political parties hoping to get into parliament or into local councils is trying to inveigle voters with promises they may never keep.  Yet it turns out to be impossible to freely discuss the question of confidence in these parties, their previous actions, ideology, programs, and specific personal qualities of members of their candidate lists.  In wishing to protect journalists and the mass media from the pressure from aggressive participants in the elections which we saw in full measure during the 2004 Presidential Elections, the legislators have hurtled to the opposite extreme.  They have banned any campaigning for or against parties (blocs) and the candidates for deputy put forward, in material and broadcasts not agreed with those parties (blocs),  as well as prohibiting the circulation of any information which has features of political advertising, whether free of charge or for a fee, from sources not set down in the law.

As a result, any text or video clip which shows the party or members of candidate lists is subject to strict censorship in case it could be considered to be pre-election campaigning.  Indeed, when media outlets circulate information with critical content about parties or members of their candidate lists, they risk ending up with law suits demanding their closure until the end of the elections. For this reason articles in newspapers and television programs teem with reserve clauses: “This is not campaigning!  This is not campaigning!”  Recently a young woman from one of the Kharkiv production studios who had just prepared a clip on the arrival in Kharkiv for a concert of Poplavsky[1] contacted me.  The young woman with a good musical background could not conceal her ironic attitude to the “singing rector”. There wasn’t a word about the elections. Yet no Kharkiv television or radio company was prepared to accept the story, fearing that it could be considered anti-advertising.  And what can you say? I advised the journalist to not lose heart but to wait it out until after the election campaign, since for all that I saw the absurdity of the situation, you can understand the TV companies.  The newspaper “Chornomorska” was almost closed, and the reason was quite trivial, while the Sumy newspaper “Hromadyany Ukrainy” [“Citizens of Ukraine”] did actually get closed: on 17 February the Sumy Regional Appeal Court suspended its issue until after the elections. The reason given was “a flagrant violation of the law on the elections” which consisted of publishing in one of its issues the first five candidates for the local council and for the office of mayor from the Christian Republican Party with a call to support them at the elections. The publication was indeed not paid for out of the election funds of this party. The founder of the newspaper, the head of the local branch of the Christian Republican Party, tried in this way to help the party and was severely punished.  Was the infringement so very grave that it required the suspension of issue of the newspaper?  Would it not have been possible, for example, to have settled for a warning?  It is impossible not to note that such limitation on freedom of expression would be better termed its flagrant violation.

Two Resolutions from the Central Election Commission are highly revealing for our theme. These were No 716 from 23 February and No. 793 from 2 March based on complaints from the electoral bloc “NE TAK!” [“NOT YES!”]  regarding the actions of the newspaper “Silski visti” [“Rural news”] and Petro Poroshenko. In both cases the claimant alleged violation of its rights and legitimate interests. The Central Election Commission (CEC) considered the question of affiliation of the claimant and the respondents, its authority to consider the claim, the periods for the claim, and then reviewed the merits of the claim confining its review exclusively to electoral law.

The complaint lodged by the electoral bloc “NE TAK!” against the newspaper “Silski visti” was over an article: “Wishing you happiness in the noble cause of serving the Ukrainian people”, printed in No. 18 from 14 February. The CEC states in its Resolution: “the article contains value judgements in the form of political rhetoric, critical, polemic and sarcastic comments aimed at some participants in the electoral process, specifically:

“...Ukraine remembers those who tried to crush “Silski visti” – Leonid Kravchuk (1986) … who cynically trampled on human rights by banning subscription to “Silski visti” on territory in their control… While Leonid Kravchuk, obviously, in the role of sergeant-major of the suppression corps, or maybe to mark the 20th anniversary since the first waving of sabres above the head of the leader of the “Silski visti” staff, I. Spodarenko, began a new assault on  “Silski visti”, announcing a protest campaign against the Presidential Decree No. 60 from 23 January 2006 which honoured Ivan Vasylyovych Spodarenko with the title of Hero of Ukraine.

One can understand the  ex-Communist Party of Ukraine ideologist: the Party henchman doesn’t want the newspaper and its leader, through their very existence in this world, to be a reminder of his dark past. Yet what a banner he raises above himself: the honour of Ukraine!

…The newspaper “Silski visti” really weighs down upon Mr Kravchuk.  It’s clear that if he was lying in his grave, he’d turn in it”.

„…It is you, Mr Kravchuk, who are the leading actor and at the same time the director of the theatre of the absurd.  And the point is not that you are transforming yourself from the role of militant blasphemer to that of God’s Anointed, nor that you are so concerned about the memory of the victims of the Holocaust, but banned the very mention of Holodomor [the Famine of 1932-1933[2]] in Ukraine. At the end of the day you don’t care what you use to trade with, you once went with your image as the first president of Ukraine trying the Cossack card to a candidate for the office of Kyiv Mayor who suited you but wasn’t wanted at all by the people of Kyiv. However that is from the area of morals. Although, what morals?. You when you were President of Ukraine squandered the world’s largest (at the time) Black Sea Fleet.  As President of Ukraine you diddled away up to one and a half billion of people’s savings, casting your own people into abject poverty, unemployment, and also crushing inflation. And you, through Kuchma’s bounty, are “Hero of Ukraine!”

That really is a theatre of the absurd. And you are now trying the card of anti-Semitism and xenophobia, as if forgetting that it’s been beaten and is lying in the rubbish heap, of any use only to down-and-outs who live from such rubbish containers and sometimes even sell things they find.

You, Mr Kravchuk, who are always flaunting your knowledge of the law, supposedly a legal know-it-all. Do you really not know that the accusation against “Silski visti” , initiated by Rabynovych and fabricated by Saprykina, of anti-Semitism, xenophobia and stirring up inter-ethnic antagonism was revoked by the Kyiv Appeal Court?

Your political companions, Viktor Medvedchuk[3] and Viktor Yanukovych, the main pillars of the Kuchma regime, have also got involved in the case. Here, then, it’s all clear.

However at the bottom of the letter which began the campaign against “Silski visti”, and at the same time – on the pre-election wave – against the President of Ukraine Viktor Yushchenko, there are 13 other signatures. …”

The CEC decided that the article contained characteristics of pre-election campaigning and that it had been printed without prior agreement with a participant in the electoral process, and allowed this part of the claim made by the bloc “NE TAK!”  As regards the opinion of the claimant that the article “published some knowingly untruthful and libellous information about the participant in the electoral process – the candidate for the post of State Deputy Leonid Kravchuk”, the CEC did not agree with this assertion, stating that “the claimant has not submitted to the Central Election Commission any proof of the contention that the information which he considers to be knowingly untrue and libellous is such. Therefore this part of the claim is not accepted”.

The CEC ordered the newspaper “Silski visti” to “refrain in future from committing infringements of the Law on the Elections”. Such a decision in my opinion will act like a great “cold shower” and will obstruct the will to freely discuss the qualities of participants in the election process.

In Resolution №793 from 2 March the CEC considered the claim brought by the bloc “Ne tak!” against the actions of Petro Poroshenko. The claim states:

On 21 February 2006  at 19.40 during a meeting with the public of Kherson which was broadcast on the television channel “SKIFIYA” the respondent of the claim, P.O. Poroshenko stated the following: ”There is no alternative – and this is a true political reform. Not the empty waffle initiated by the communists, Medvedchuk, the Regions and Kuchma”.

During this meeting,  P.O. Poroshenko expressed the following opinions with regard to N.I. Shufrych[4]:   “I’m sorry, but I think he’s a clown. I’m pleased that this is already seen by the entire country’s population, and I consider that the political faction that he is leader of is … the one thing that I am ashamed of, that the first President of our country, Mr Kravchuk is at the head of a list which is demanding the abolition of Ukrainian as the state language pr the introduction of Russian, which … well he should be ashamed of himself. And all the others there are clowns. Their time has already passed.  Think of who Medvedchuk was a year ago, or a year and a half ago. He was the lord of the state. Look how he was blown off the scene as soon as real representatives of the people came. Look at what the level of support today is for that political force “NE TAK!” – without any rigging, without bans on speaking out on television – he’s nobody …”

As proof of these circumstances, the claim was armed with a videocassette and compact disk with recordings of P.O. Poroshenko’s addresses. However the CEC decided that the video recording did not contain the opinions given above, and it was not possible to establish that the video material recorded on the compact disk had been broadcast on the television channel “SKIFIYA”.  The candidate for State Deputy of Ukraine, Petro Poroshenko does not belong to the exclusive list of individuals who, according to part one of Article 71, are prohibited from taking part in pre-election campaigning.  His participation, therefore, in pre-election campaigning is not in contravention of the regulations of the Law on the elections. On this basis, the CEC has decided to reject the claim of the bloc “NE TAK!”   

It looks as though the television channel “SKIFIYA” in its coverage of Poroshenko’s meeting with the public of Kherson simply cut out his critical remarks about his opponents, and in this way saved themselves from the sanctions they could have faced, even closure.

We thus find that the Law on the elections, and its practical application as this is developing present the following picture: candidates for the office of Deputy have the opportunity to freely discuss election issues, while journalists and the mass media may only provide coverage of these debates on the basis of agreements with the political parties (blocs), that is, representing their interests. They themselves are not able to freely express their opinions, since any critical comments are treated as pre-election campaigning.  They are therefore forced either to abandon any coverage of the election campaign or resort to serious self-censorship.

Of course the CEC did not consider the regulation by the Law on the elections of pre-election campaigning within the context of observance of human rights and fundamental freedoms. We however will attempt to look at the issue from this angle. In accordance with Article 34 of the Constitution the exercise of freedom of expression “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”.

We would note that in this list there is no mention of such an aim for such restriction as “the prohibition of pre-election campaigning without making an agreement with the participants in the election process”< while this aim, in my opinion, cannot be extrapolated from any of the above listed constitutional objectives for limiting freedom of expression.  At the same time, according to Article 64 of the Constitution, constitutional rights and freedoms shall not be restricted, except in cases envisaged by the Constitution of Ukraine. Section 8 of the Law on the elections therefore contravenes the Constitution. This conclusion should have been reached by the Constitutional Court, however the Verkhovna Rada has done everything it could to block the Court’s work (one would mention in parentheses that there is a temptation to deem all rulings of parliament issued in the absence of the Constitutional Court as illegitimate). 

Article 10 of the European Convention on Human Rights and Fundamental Freedoms which defends freedom of expression contains the same list of restrictions as in Article 34 of the Constitution, but stipulates that they must be necessary in a democratic society.  In order to consider the question of whether the regulation of pre-election campaigning is in keeping with international standards defending freedom of expression, one must consider the principles which have been formulated by the European Court of Human Rights when reviewing claims involving violation of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.[5].

1. Freedom of expression constitutes one of the essential bases of a democratic society and one of the main conditions for both its progress and the self-fulfilment of each individual. Taking into consideration Paragraph 2 of Article 10, acceptable must be deemed not only “information” or “ideas” which are favourably received or considered inoffensive or received with indifference, but also those which offend, shock or irritate.  These are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.

2. The sphere of restrictions, in accordance with Paragraph 2 of Article 10 of the Convention, with regard to political speeches and debates on issues of public concern is not wide. Moreover, the limits of acceptable criticism are broader in relation to the government than they are towards individuals who do not hold public office or, even towards a politician.  In a democratic system the behaviour or mistakes of the government should be subjected to detailed scrutiny not only by legislative and judicial bodies, but also from public opinion.

3. Politicians, of course, have the right to defend their reputation even when they are not acting in a private capacity, however the demands for such defence should be measured against the interests of open debate on political issues since exclusions to freedom of expression must be interpreted narrowly. The boundaries of acceptable criticism are therefore wider with regard to politicians who are appearing in their public capacity than where they concern a private individual. The former inevitably and consciously make themselves available for thorough scrutiny of each word or act, both by journalists and from the entire public, and they should demonstrate the highest level of tolerance, especially when they themselves make public statements which readily lend themselves open to criticism.

4. The principle according to which freedom of expression also embraces information or ideas which can offend, shock or irritate is of course of particular importance in relation to the press. While the press should not overstep the limits established among others “for the protection of the reputation of others”,  its task is, nonetheless to pass on information and ideas on political issues and with regard to other issues which are of general concern.  The press performs a vital role in democratic society, and this is a factor of particular importance for rulings of the Court. The Court has due regard for the fact that journalists’ freedom can include the possibility of resorting to exaggeration or even provocation.  It is for this reason that the national yardstick for understanding this is determined by the interests of democratic society in providing the opportunity for the press to carry out their proper role as of right of “watchdogs of society” in circulating information which reflects serious public concerns. It may be unacceptable in the case of journalists to deprive them via court rulings of the possibility of expressing critical assessments, regardless of whether they can prove that they are correct.

5. In accordance with Article 10 of the Convention the restriction of freedom of expression should be that necessary in a democratic society.  Moreover the adjective “necessary” in the sense used in Article 10 has in mind the existence of “urgent public need”.

In the light of the principles presented above, it would in my view be evident to the European Court that the regulation of the running of pre-election campaigning in the Ukrainian Law on the parliamentary elections is a disproportionate interference with freedom of expression and violates international standards for observing this. While the practice of reviewing electoral disputes entirely disregards the need to adhere to the right of freedom of expression.

Let us assume that the requirement to come to an agreement with the participants of the election process will be removed, and that it will then be possible to hold political discussion without fearing that your media outlet will be closed.  However the discussion will have real substance if its participants are well-informed, that meaning that they receive access to information about political parties and blocs. Since in Ukraine political factions are at the present time perceived largely through the personalities of the politicians who represent them, another question arises which is of importance to our present topic..

Can journalists provide personal information about candidates for the office of Deputy?

At first glance this question could seem rhetorical: they not only can, but they must. The main duty of journalists is after all to keep voters informed as to the course of the election campaign, about the programs offered by participants in the election process, about the personal qualities of candidates. Voters have the right to know everything about those who are standing for office in order to make an informed choice. However this is only at first glance.

According to Article 34 of the Constitution, the exercise of the right to information may be restricted by law, among other reasons, with the purpose of protecting the reputation or rights of other persons or preventing the publication of information received confidentially. .

Article 32 of the Constitution guarantees the right of each person to non-interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine. It also prohibits the collection, storage, use and dissemination of confidential information about a person without his or her consent, except in cases determined by law.  We thus have conflict between two fundamental values, two natural rights – the right to information and the right to privacy. How then is this conflict resolved?

Let us begin with a little about two fundamental principles regarding freedom of information. The first is the principle of maximum disclosure: all information is subject to disclosure, with exceptions being only for a very limiting number of instances. The second principle concerns requirements concerning limitations:  information which is not openly available must be clear, defined narrowly and must allow for checks in accordance with the three-tier test. The latter stipulates: information must concern a legitimate objective; its disclosure would cause significant harm to this objective; the harm from divulging this information must outweigh the public interest in having the information. In the given case,  the legitimate objective is to protect personal information about candidates for the office of deputy.  What is more important here: public interest in receiving the information about the private life of candidates to the post of deputy, or the interest of these deputies in keeping their private life secret?  What harm is more significant – that caused the public by the lack of information about candidates, or that which candidates whose personal data is divulged suffer?

We would reiterate that the adjective “necessary” in the sense of Article 10 of the Convention means the existence of “an urgent public need”.  What would be the urgent public need in keeping secret personal information about candidates for deputy? In my opinion, in the given instance, there is no such need, and one must unconditionally give greater weight to the public interest in knowing as much as possible about candidates for the office of deputy. All limitations on access to information about an individual should be waived when this individual is standing for elected office. Only then will voters be able to receive full information about candidates and make a well-thought out choice. Strictly speaking this means that a public individual who wants to be elected, loses his or her privacy, and must be ready for any facts of his or her biography and private life to be disclosed.  The Law “On information” therefore could do with an article containing, say, the following:

Information about an individual who is standing for elected state office, holds such office or previously held it, does not constitute a state secret or any other type of secret envisaged by law, cannot be categorized as confidential information and may be made public in any instance.

However, Ukrainian legislation contains nothing of this kind, and to move further in our review, it is necessary to address the next question: How is information about an individual (personal data) defined?

Usually laws on protection personal information divide the latter into data of a general nature (last name, first name and patronymic, date and place of birth, citizenship, place of residence) and sensitive personal information (information about ones state of health and medical records, diagnoses, etc, ethnic origin, religious identification, identification codes or numbers, personal symbols, signature, fingerprints, voice recording, photographs, information about salary or other legal income, about investments and banks accounts, real estate, tax status, credit history, criminal records or information about any other criminal, administrative or disciplinary charges brought against the individual, results of exams, professional and other tests, etc). It is forbidden by law to collect, store, use and disseminate specifically this sensitive personal information about an individual without the latter’s consent.

In Ukraine there is no law protecting personal information. Such information is partially defined in Article 23 of the Law “On information”, according to which information about an individual is the collection of documented or publicly announced information about an individual, the main elements of which being nationality, education, marital status, religion, state of health, as well as address, date and place of birth. It is clear that this list of items of personal information is not exhaustive however legislation does not provide any further more precise specification of the concept of personal information.  Article 23 prohibits the collection of information about an individual without the latter’s prior consent, with the exception of cases allowed fro by law. The Ruling of the Constitutional Court of Ukraine from 30.10.1997 No. 5-zp (on the case of Kostyantyn Ustymenko) specified this norm: “Part four of Article 23 of the Law of Ukraine “On information” should be understand as prohibiting not only the collection, but also the storage, use and dissemination of information about an individual without his or her prior consent, aside from cases allowed fro by law, and solely in the interests of national security, economic well-being and human rights and freedoms. Confidential information, in particular, includes information about an individual (education, marital status, religion, state of health, date and place of birth, property owned and other personal data)”.

Thus Ukrainian legislation lacks any clear and unambiguous definition of personal information. We can observe the ensuing clash between the right to information and the right to privacy.  Article 47 of the Law “On information” envisages liability for the use and dissemination of information about the personal life of an individual without the latter’s consent by a person who is the holder of the relevant information by virtue of fulfilling his or her official duties. Article 3 of the Law on the Press directly prohibits the use of printed mass media sources to “intrude in citizens’ personal lives”.  The law in fact does not give a definition of this concept. The Law “On television and radio broadcasting” makes it illegal for  television and radio broadcasting organizations to publish information about the private lives of individuals without their consent if the said information is not publicly necessary (paragraph and Article 59). The concept “publicly necessary information” is also not defined by the law, and disputes as to whether the circulated information is in fact publicly necessary are adjudicated by the courts.

In accordance with Article 182 of the Criminal Code, punishment in the form of up to three years limitation of liberty is envisaged for the illegal collection, storage, use or dissemination of confidential information about an individual without the latter’s consent or the disclosure of this information in a public speech, a work which is publicly demonstrated, or in the mass media.  Recently the State Deputy, Stepan Havrysh, put forward a draft law which would introduce amendments to the Criminal and Criminal Procedure Codes, as well as the Administrative Offences Code.  In particular it was suggested that criminal liability under Article 182 should be increased to three years deprivation of liberty, and a second part of the Article was introduced where the same acts were carried out by an official either again, or with the prior conspiracy of a group of people.  Here the maximum penalty was deprivation of liberty for up to 12 years, and Parliament even passed this law on 12 January this year, however the President used his power of veto.  The actual crime under Article 182 is not defined clearly and exactly, and it is not necessary to have a doctorate in law to see this. In my opinion, the amendment to Article 182 of the Criminal Code is calculated specifically to avoid journalist investigation into the abuses committed by candidates for the office of deputy when they occupied high-ranking state positions in Kuchma’s regime. If this Article came into force, it would put serious obstructions in the way of exercising freedom of expression since the main perpetrators of this crime could be “inconvenient” journalist who, in connection with their professional activity, collected information for their publications.

The question as to whether the right of the public to have information about a public individual outweighs the right of the given individual to keep information about his or her private life secret, is decided by the court.  The three-tier test is partially reflected in Part 11 of Article 30 of the law “On information”: “Information on restricted access may be disseminated with the consent of its owner if the information is of public significance, that is, if it is the subject of public concern and if the right of the public to know this information overrides the right of the owner to its protection”.  However we are not aware of any occasions where the courts have made use of this norm.

It is thus possible to draw the conclusion that Ukrainian legislation and practice do not correspond well with European norms. For example, the CEC considers information from declarations about property and income of candidates and members of their families submitted to the CEC along with other documents for registration to be confidential, although it is manifestly clear that this information is needed by the public. It is interesting that in this question there is a significant different in the laws on the elections to parliament and to local councils. The Law on the elections to local councils binds candidates to these councils or candidates for the office of village, settlement and city heads to submit to the electoral commissions declarations on their property and income for the past year, as well as information about the property and income of members of their families. The Law on parliamentary elections, however, only demands that the candidates themselves provide such declarations about their property and income, and members of their families are not mentioned.

Access to the dossiers on candidates for the office of deputy is inseparably linked with confidence in these candidates. In illustration of the importance of access to information about public political figures, I would give the following example. At an evening in memory of the poet Vasyl Stus in Kyiv on 5 September 2000 (15 years from the day Stus died in the Perm Special Regime Labour Camp No. 36), Yevhen Sverstyuk in his brilliant speech named Viktor Medvedchuk, who had been Stus’ lawyer at his final trial in 1980[6], a symbol of the KGB-style advocacy. I believe that Yevhen Oleksandrovych exaggerated in this. Medvedchuk was a typical puppet in that farce with its 100 percent predictable outcome. However another question arises, “question which we can’t hide from”. Lawyers appointed in political trials could not, as a rule, be connected with the KGB – a repressive punitive body which viciously persecuted human rights activists. Today, when the issue of politicians’ morals is acutely relevant, is it possible for us to trust Medvedchuk who held high-ranking posts and whose plans are no less ambitious? In my view, people who worked in that punitive body and persecuted dissidents or assisted in their persecution should get the hell out of all high-ranking positions. At the All-Ukrainian Civic Academic and Practical Conference “The Referendum and us: From a civic stand to civic actions” on 18 March 2000, one elderly man stated that he had worked in the KGB and that Medvedchuk had been his agent. This may have been the truth, or it may be true that this man deliberately lied in order to blacken the name of a political enemy.

We must, therefore, know everything about people who are standing for election to parliament or other elective bodies, and our political establishment needs to pass through such a purification process as checking on personal involvement in communist crimes.  We are not even talking of lustration proper, but rather of a checking of information, that Mr X did not personally take part in the persecution of dissidents, overt or secret.  Such a process of scrutiny was carried out in the majority of post-communist countries of Central and Eastern Europe, and it helped raise confidence in politicians and a mood of conciliation within society.  It is therefore necessary to create the mechanisms for access to the archives of the KGB and to receive information about the participation of this or that individual in political repression.  And Mr Medvedchuk should have the greatest interest in this (the presumption of innocence binds us to consider him innocent of any crimes unless the contrary is proven)., if after all the accusations are unfounded.

Similarly information regarding any criminal record of candidates or any criminal investigations  is not made public.  And when media outlets provide information about such matters, they risk being taken to court and demands being lodged that they be closed until the elections are over. This has been seen in the conflict over the publication by the Police of information about those people on the candidate lists who figure in criminal cases. .We need therefore to consider another question.

Can state officials provide details about the personal information of candidates for the office of deputy?

Article 3 of the Constitution declares the main duty of the state to be “to affirm and ensure human rights and freedoms”. Therefore such a duty is also to ensure the right to information guaranteed by Article 34, and in this way state officials are bound to make available information which is in their possession. Yet Article 71 of the Law on the elections unambiguously prohibits state officials and functionaries of state executive bodies and bodies of local self-government, law enforcement bodies and courts from taking part in re-election campaigning, except in those cases where the relevant state official or functionary is him or herself a candidate for the office of deputy. The appearance of such a norm was the outcome of the unfortunate practice of using administrative resources which we all witnessed during the last elections. Yet is the publishing of information about candidates for the office of deputy always pre-election campaigning?  Practical experience as of the present day indicates that the courts consider the publication of any negative information about candidates for the post of deputy to be pre-election campaigning and the ban on state officials carrying out pre-election campaigning overrides any considerations in favour of protecting freedom of expression.  It would appear that the Central Election Commission is also inclined to take the same point of view (cf. the above-mentioned Resolution of the CEC from 23 February 2006 No. 722 regarding the complaint lodged by the electoral bloc “NE TAK!”)  In my opinion this is an outcome of the consistent actions of the Minister of Internal Affairs, Yury Lutsenko and his staff, who have throughout the election campaign constantly and insistently made public information about the criminal records of any candidates for the office of deputy, as well as any criminal investigations regarding these people or cases where they are wanted by the Police for questioning, despite judgements issued to restrain them by the CEC and the courts.

Who then is right? The staff of the Ministry of Internal Affairs (MIA) or the candidates for the office of deputy from the candidate lists of a number of parties and blocs, or the courts who are allowing such claims brought against the actions of the police?  We will endeavour to answer this question.

On 27 December 2005 Yury Lutsenko during a chat session on the website “Ukrainska Pravda”, in answering a question from one of the participants, stated:

„ As a state official, and in accordance with the law on the elections, I do not have the right to campaign for or against any candidate list … I would therefore like to emphasise that I am informing the voter about the presence or absence of interest from our ministry to individuals who, in a manner which I had no connection with, were chosen for this or that candidate list. I would specifically inform people that in the candidate list for the Party of the Regions I found 24 names of interest from the first hundred. In the Lytvyn People’s Bloc – 16 out of one hundred, in the bloc “NE TAK!” – 16 out of fifty.  However I had particular joy from the candidate list of Natalya Mykhailivna Vitrenko: among her like-minded candidates there was practically the whole team of our grand – client Kurochkin[7] in full – his bodyguard, the ex-director of the market “Ozerka”, and the manager, and the members of the armed racket gang “Netrikha” (in 2000 a “Mukha” grenade discharger, automatic rifles, grenades and explosive plastid were confiscated from members of this gang).  This list also includes a person on the international wanted list, Vartsava (the ex-Chief of the Transcarpathian Police), two very colourful ex-chiefs of customs – Kaletnyk and Kozak, and any number of other individuals of interest to the MIA. In general, I suspect that after the publication of this list, for the brotherhood competition was created to the only party which is thus far close to them.”

In an interview for the newspaper “Fakty” he again named the same figures and stated the following:

“I don’t know how long I have in my present post, but I would like to take the Police through the elections without interference in the political process. To not let them be dragged into grubby games by politicians from any side. I reserve the right to inform the public about which parties and blocs have candidates who are of interest to the MIA” (“Fakty”, 6.1.2006).

On 10 February the Pechersky District Court in Kyiv allowed the claim brought by the bloc of Natalya Vitrenko “Narodna opozytsiya” [“People’s opposition”] and declared the actions of the Minister of Internal Affairs in carrying out pre-election campaigning in the form of discussing the political and personal qualities of the candidates from Natalya Vitrenko’s bloc unlawful.

One can see from the text of the court’s Resolution that it virtually did not consider the question of whether the information published by the internet websites “Ukrainska Pravda” and “Censor.NET”, and by the newspaper “Fakty” were true. In the concluding part of the Resolution there is not a word on this subject. In issuing the Resolution, the court was guided solely by the Law of Ukraine «On the election of State Deputies of Ukraine” and by the Code of Administrate Justice, and there was not even a mention of the normative acts of information legislation. It is typical that the concluding part does not contain the demands with relation to the third parties (the mass media) which the claimant had sought. The court thus confined itself exclusively to considering the question as to whether the statements made by Yury Lutsenko could be considered pre-election campaigning, and whether he as a person holding state office had the right to engage in this.

Stating  that Yury Lutsenko in his interviews “did effectively carry out pre-election campaigning through his public negative statements about the political, business and personal qualities of candidates for the office of State Deputy of Ukraine, included in the candidate lists of the electoral bloc of Natalya Vitrenko  “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”), the court relied on the Resolution of the Central Election Commission from 5.01.2006 № 73, “in which it declared that the above-mentioned actions contained elements of pre-election campaigning”.  However the relevant fragment of the Resolution of the CEC is somewhat different:

«The Central Election Commission considers that the above-mentioned statements by the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, contain some features of pre-election campaigning.

At the same time, as is clear from the text (online) of the press-conference in the Internet publication “Ukrainska Pravda” of the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, he answered a specific question “Why do you only criticize the candidate list of the Party of the Regions for the presence of clients of the MIA?”

From the text of the answer given by the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, to the question put to him, it is not possible to unambiguously conclude that pre-election campaigning was carried out for the purpose of encouraging voters to vote for or against particular participants in the electoral process.”

The CEC were thus not as categorical in their judgement of Lutsenko’s statements as the panel of judges of the Pechersky  District Court.  The panel of judges effectively repeated the first paragraph of the extract given here, leaving out the word “some”.  It should also be noted that Yury Lutsenko spoke about candidates for the office of deputy who had figured in criminal cases regardless of which party’s or bloc’s candidate lists they were on. It is therefore, I believe, incorrect to assert that Yury Lutsenko campaigned against certain political factions giving a negative assessment of the qualities of the candidates for deputy included in their lists. Moreover, in qualifying the actions of Lutsenko as pre-election campaigning, the court needed to prove that his intention had been to persuade voters to vote against the claimants. And as far as I can see, Lutsenko’s remarks did not have such an objective.

For these reasons I consider that the conclusion of the court that Lutsenko was engaging in pre-election campaigning in contravention of Article 71 of the Law on the elections was wrong.

In my opinion, Yury Lutsenko, as a state official was simply obliged to inform the voters about the involvement of candidates for the post of deputy in criminal cases which were being investigated, so that the voters could make an informed choice.  Without going into the issue of moral principles, he was forced to such a step by Article 3 of the Constitution, the demand to conscientiously fulfil his state duties (Article 5 of the law “On the Civil Service”), the obligation to avert crimes, to ascertain the reasons and conditions which encourage the committing of offences, to use, within the boundaries of his authority, measures to eliminate such causes (Article 10 of the Law “On the Police”). It is clear that people who figure in criminal cases under investigation may create a potential hazard if they are elected to the Verkhovna Rada of Ukraine and are protected by immunity status.  The Minister of Internal Affairs therefore simply had no choice but to warn voters about such candidates, and the assertion of the court that such actions are a violation of Article 10 of the Convention are, I believe, mistaken.

From all this it follows, in my view, that the court is violating the right to freedom of speech of Yury Lutsenko, and also the right to information of all voters by prohibiting Lutsenko from “discussing with the public the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the PSPU and the Party “Rusko-Ukrainian Union” (RUS”), nor to act as an expert on these issues”.  The Court entirely refrained from considering the issue of whether the published information about certain candidates for deputy being implicated in criminal cases was an intrusion into their private life, and how legitimate it was to publish through the mass media personal information about candidates.

On 17 February the Kyiv Appeal Court accepted the appeal lodged by Yury Lutsenko and revoked the Resolution of the Pechersky Court from 10 February.  At the same time it decided that the statements made by Lutsenko about the presence in the candidate list of the bloc of Natalya Vitrenko of people close to the Russian criminal figure Kurochkin are untrue.

During the last two weeks of February the Ministry of Internal Affairs provided more and more information regarding candidates for the office of State Deputy who figure in various criminal cases. For example, on 22 February the MIA issued information that 10 people on the candidate lists had current criminal records, 11 members of the lists of political factions are wanted for questioning by the Police, and 37 individuals have had criminal cases launched, where decisions have yet to be taken, while with regard to 41 other individuals criminal cases have been passed to the court.

Of the 37 criminal cases launched against candidates for State Deputy, 15 cases were brought by Internal Affairs agencies, and 22 by the Procurator.

According to information from the MIA, one candidate from each of the following candidate lists has a criminal record: the Opposition bloc “NE TAK!”, Natalya Vitrenko’s bloc, Yury Karmazin’s bloc, the bloc “Derzhava – Trudovy soyuz” [“The State – Labour Union”], the bloc of the parties “Za Soyuz” [“For the Union”], the bloc NDP [the National Democratic Party of Ukraine}, the party “Nova syla” [“New Force”], the all-Ukrainian association “Svoboda” [“Freedom”], and two candidates from the candidate list of Lazarenko’s bloc.

There are two candidates on each of the following candidate lists who are wanted for questioning by the Police: the Opposition bloc “NE TAK!”, Natalya Vitrenko’s bloc, the bloc “Derzhava – Trudovy soyuz”, and one from botth the bloc “Vlada narodu” [“Power to the people”] and the Party “Nova syla”.

Criminal cases where a decision has yet to be taken have been launched against 5 members of the candidate list of Yulia Tymoshenko’s Bloc (BYuT), and 5 from the bloc “NE TAK!”  There are 3 in each of the following: Lytvyn’s Bloc, “PORA-PRP” [the coalition of the civic party PORA [It’s time] and the Reform and Order Party], and “Sontse” [“Sun”]; two each in Lazarenko’s bloc, Yury Karmazin’s bloc and the Party for Environmental Rescue “Eko +25%".  There is also one candidate in each of the following: the Party of the Regions, the bloc “Nasha Ukraina” [“Our Ukraine”, the bloc “Yevhen Marchuk – Unity”, the Communist Party, the Party “Vidrodzhennya”, the bloc “Derzhava – Trudovy soyuz”, the Liberal Party, the Party “Nova syla”, the bloc “Patriots of Ukraine”, “the Union. Chernobyl. Ukraine”, the Party “Tretya syla” and the Party “Trudova Ukraina” [“Working Ukraine”].  

Criminal cases have been passed to the courts against three people from the candidate lists of BYuT, Lytvyn’s Bloc, the bloc “NE TAK!”, Lazarenko’s Bloc, the Party  “Tretya syla” ; against 2 from the Party of the Regions, the bloc “Nasha Ukraina”, Vitrenko’s bloc the bloc “Derzhava – Trudovy soyuz”, the Party “Nova syla”, “Selyanska partiya” [“The Rural Party”], the Ukrainian Conservative Party; against 1 each from the bloc of the parties of Boris Oliynyk and Mykhailo Syrota, the Communist Party, the Green Party, the Yury Karmazin Bloc, the Party "Эко+25%", the Party "Zelena planeta" [“Green planet”], the Ukrainian People’s Bloc of Kostenko and Plyushch, the Party of Pensioners, the Party of Putin’s Policy, the bloc “PORA-PRP”, the bloc of non-party affiliated candidates  “Sontse”, the Christian-Social Party.

Thus according to information from the MIA candidate lists with the largest number of candidates having problems with the law are  the Opposition bloc “NE TAK!” (11), The Bloc of Yulia Tymoshenko (8), Lazarenko’s bloc (7), Lytvyn’s People’s Bloc (6), the bloc “Derzhava – Trudovy soyuz” (6), The Party of the Regions (5), Vitrenko’s Bloc (5), the Party “Nova syla” (5), the Yury Karmazin Bloc (4), , the bloc “PORA-PRP” (4), the bloc of non-party affiliated candidates  “Sontse” (4), the Party  “Tretya syla”  (4).

The law enforcement bodies have no issues with members of the candidate lists  of the Socialist Party, the Party “Vpered, Ukraino” [“Forward, Ukraine”], the Party “European Capital”, the All-Ukrainian Party of People’s Trust”, the Party of Patriotic Forces, the Party of Social Defence, the Popular Movement for Unity, the Ukrainian Party of honour, the struggle with corruption and organized crime, the Party “Viche”, the Party of National and Economic Development and the Ukrainian National Assembly.

When asked why no candidates had been found in the Socialist Party to which the Minister is close, he replied that he had carried out the monitoring of the list before registration and had recommended excluding questionable individuals from the list. However when information of this kind reached the local level, then socialists appeared and the number of candidates to local Councils about whom the MIA had concerns, increased significantly, and the number of law suits to the Minister rose.

In my opinion, the above details strengthen the argument against the Minister having had any aim of making voters voter “for” or “against” any particular participant in the election process, that being the necessary condition for qualifying his actions as pre-election campaigning. Indeed as far as identifying potential criminal elements in the candidate lists, all parties (blocs) were equal for the MIA. However the position of the CEC in assessing the actions of the Minister of Internal Affairs changed in another direction.

In the Resolution No. 722 from 23 February, the CEC, having punctiliously presented the grounds on which the Police have the duty to inform voters, the grounds for limiting the publicizing of information about an individual, having mentioned the special features involved in disseminating information about individuals standing for office as State Deputy, came to the conclusion that the Police within the bounds of their competence have the right to disseminate information about an individual without the consent of its own in cases where this information is of public significance, however they should act at the same time bearing in mind the special limitations envisaged by legislation on the elections.  And since the CEC considers the dissemination of such information to be pre-election campaigning, it partly satisfied the claim of the bloc “NE TAK!” and bound the Minister to refrain from infringing current electoral legislation and violating the rights of participants in the election process.

Thus the CEC recognized a clash between the ban on state officials carrying out pre-election campaigning and their duty to ensure the right of voters to information, but decided in favour of the ban on pre-election campaigning. In my view, this decision was wrong in that it runs counter to both the Constitution and international standards. And therefore, if before the elections on 26 March Yury Lutsenko loses the next civil suits lodged by political factions against his activities in both general and appeal courts, I would advise him to turn to the European Court of Human Rights. It will be an interesting case when the Minister of Internal Affairs complains that the state is violating his rights!


[1]  Mykhailo Poplavsky was a popular singer. He is now a State Deputy in the Verkhovna Rada and the Honorary Rector of the Kyiv National University of Culture and Art.  (Most definitely not campaigning! – translator’s note)

[2]  Holodomor was a deliberately induced  famine which killed between 5 and 10 million people. It was largely ignored in the West, and consistently denied throughout the Soviet period.  (translator’s note)

[3]  Viktor Medvedchuk was Head of the Presidential Administration in Kuchma’s regime and wielded considerable power. (translator’s note )

[4]  Nestor Shufrych is a member of the Social Democrat Party of Ukraine (United), which is one of the parties in the opposition bloc “NE TAK!”.  He is no. 4 on the candidate list below ex-President Kravchuk and ex-Head of Kuchma’s Administration, Viktor Medvedchuk  (translator’s note ).

[5] More details can be found in: Wolfgang Pickert: European standards on freedom of expression (the reference here is to the Ukrainian translation).

[6]  It is worth remembering that Medvedchuk was appointed by the state against the wishes of Vasyl Stus.  Yevhen Sverstyuk says that Medvedchuk, rather than defending Stus, spoke against him.  (translator’s note )

[7]  Maxim Kurochkin is a Russian businessman with highly questionable connections. He actively helped Yanukovych during the 2004 Presidential elections and was executive director of the Russian Club, connected with Gleb Pavlovsky, the Kremlin political technologist, another figure active in helping the pro-Kuchma candidate.  Kurochkin is now living in Moscow. (translator’s note )

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