2. Political persecutions
The Parliamentary Assembly of the Council of Europe adopted a Resolution 1900 (2012)1 « The definition of political prisoner» on 3 October, 2012. It includes such definition.
«A person deprived of his or her personal liberty is to be regarded as a political prisoner:
a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;
b. if the detention has been imposed for purely political reasons without connection to any offence;
c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of;
d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,
e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities.” (SG/Inf(2001)34, paragraph 10)
Those deprived of their personal liberty for terrorist crimes shall not be considered political prisoners if they have been prosecuted and sentenced for such crimes according to national legislation and the European Convention on Human Rights (ETS No. 5).
The Assembly invites the competent authorities of all the member States of the Council of Europe to reassess the cases of any alleged political prisoners by application of the above-mentioned criteria and to release or retry any such prisoners as appropriate.»
The above definition does not explain the notion of “political motives”. When talking about political persecutions of people by the Ukrainian authorities we use the following definition:
Political motives of the authorities are real, and not formally declared, foundations for the actions (or deliberate inaction) of the law-enforcement and judicial bodies, other subject of authority, which are used with the purpose of achieving at least one of these goals:
а) preservation or strengthening of positions, recognized as unacceptable in a democratic society, by the state bodies, legal and physical entities, groups of interests, institutions of political, economical or financial power;
b) putting an end to or changing the nature of a person’s public activity by force;
c) illegal confiscation or/and redistribution of various forms of property for the benefit of the state and its bodies with no legal claim to it, legal and physical entities;
d) conducting national or local campaigns against crimes or specific infringements with no sufficient reason or real apparent threat.
Persecution of the politicians
The criminal persecutions of Yu.Lutsenko and Yu.Tymoshenko indubitably are caused by political motives, which makes them political prisoners. The European Court judgment of July 3 on the case “Lutsenko v Ukraine” in fact confirmed this conclusion, in compliance with aforementioned PACE definition. The European Court revealed 6 different violations of the right to freedom and personal inviolability, protected by Article 5 of the European Convention and state violation of Article 18 of the Convention alongside with Article 5: the application of the CPC norms concerning the deprivation of liberty with the purposes not stipulated by the CPC, by means of detention and further holding in custody. The Court did not describe these purposes as political, but it follows naturally from the Court’s deliberations.
Establishing the violation of Article 18 the Court pointed out that, as an opposition leader, the applicant’s case was bound to attract a lot of attention. He had the right to respond to the “abuse of authority” charges through mass media. The European Court concluded that the arrest and detention were unlawful punishments for Lutsenko’s public rebuttal of charges against him and pleading innocent. The decisions establishing the culpability of the state in abuse of law are extremely rare in The European Court practice – it is just the third one, although the Court received over 200 petitions on violations of Article 18. These violations of human rights are inacceptable in the countries-members of the Council of Europe.
In the nearest future The European Court shall pass a ruling on the case of Yu.Tymoshenko detained on August 4, 2011. The decisions on petitions concerning the violation of the right to fair trial are also anticipated.
No criminal cases against politicians have been registered lately. However, Arsen Avakov case is worth mentioning here. On 26 January, 2012 a criminal investigation was initiated against the former Governor of the Kharkiv Region Arsen Avakov under Article 365 § 3 of the Criminal Code (exceeding power and official authority with grave consequences). Avakov was declared wanted by law-enforcement bodies internationally.
Arsen Avakov heads the Kharkiv regional branch of the Bat’kivshchyna Party. He was a successful Governor and one of the two main candidates for the position of Kharkiv Mayor at the October 2010 Local Elections. The elections were won by Gennady Kernes from the Party of the Regions, however his majority was extremely small and the elections were marred by numerous infringements of electoral legislation. Arsen Avakov had the highest rating among Kharkiv politicians and would be the most likely winner in the Kharkiv majority constituency in 2012’s parliamentary elections. The prosecution is aimed at slurring him and preventing him from taking part in the elections due in October 2012.
The criminal investigation itself seems extremely dubious. At first, on January, 6 a criminal investigation was initiated against officials of the Kharkiv Regional State Administration and the Kharkiv Regional Office of the State Agency for Land Resources over alleged unlawful appropriation of State-owned land in 2009. At that time the Kharkiv Regional State Administration’s website in clear breach of the presumption of innocence reported that Avakov had committed a crime, having unlawfully appropriated 55 hectares of land. On January 26 a criminal case against Avakov himself was filed. On January, 31 a search of his flat was carried out. On the same day an order was issued to initiate criminal proceedings with him as the accused and he was declared on the international wanted list, with the Chervonozavodsky District Court issuing an order to remand him in custody.
So what does the alleged exceeding of power and official authority consist of? According to procedure the plan for land allocation is prepared by specialists from the State Agency for Land Resources, passed by a session of the Regional Council and approved by the Governor, after which the State Agency for Land Resources prepares and issues State acts confirming ownership for the land plots. According to an application from Ukrskladbud-Tsentr Ltd, the draft land allocation of 55 hectares of agricultural land which was owned by the limited liability company to use for other purposes was prepared and adopted by the session and on January 29 Avakov signed the relevant instruction. On March 17 Avakov cancelled that instruction since a change in the designated use of land covering more than 10 hectares is the prerogative of the Cabinet of Ministers, and not regional administrations. In this situation it seems highly odd to accuse Avakov of having in May 2009 signed State acts confirming the property rights of Ukrskladbud-Tsentr to land plots with changed designation. First, he did not have the right to sign such documents and, second, he could not have signed documents, the compiling of which had been cancelled by his own instruction.
The Italian court refused to extradite Avakov. He became the people’s deputy as BYUT nominee and returned to Ukraine, but the criminal case is still under investigation.
The liquidation of Kharkiv “Basis” bank
The same political motives that triggered A.Avakov’s case, were underlying the liquidation of the “Basis” bank which occurred in 2012. The bank allegedly was linked with A.Avakov. It is noteworthy that the criminal prosecution was begun immediately after the leader of the Bat’kivshchyna Party, Yulia Tymoshenko was moved to the Kachanivska Penal Colony in Kharkiv. The Kharkiv regional branch of Bat’kivshchyna has constantly demonstrated support for its leader and has organized daily protests against her prosecution and imprisonment. The criminal investigation against the head of the Kharkiv regional branch is clearly aimed at intimidating Kharkiv members of Bat’kivshchyna and getting them to stop their protests.
The protests never ceased, so the authorities found another way of weakening the activity of public and political structures affiliated with “Bat’kivshchyna” in Kharkiv on the verge of elections, silencing them and stopping their operation, i.e. closing down the “Basis” bank which served all of them – oblast’ “Bat’kivshchyna” office, “Glavnoye” - the last independent newspaper in town, the Public Initiatives Foundation, “Renaissance”charity foundation, the Research Center for Regional Policies and others.
“Basis” used to be a rather successful bank; in late 2011 it won the bidding on minting silver coins, and consequently, was thoroughly audited by the NBU. “Basis” troubles started when the National Bank forced it to set up a security deposit fund amounting to 140 million UAH, while the statutory fund of the bank constituted 120 million UAH. The stake-holders’ meeting decided on capitalization, and external investors had to contribute 160 million UAH to the statutory fund. According to the “Basis” employees the expert assessment conducted by oblast’ NBU department recommended not to establish provisionary administration, assuming that the bank was capable of coping with its problems on its own. On April 23 the bank expected the first tranche of 80 million UAH from a Western investor. However, the establishment of provisionary administration hindered the capitalization process. The provisionary administration was looking for investors but the reliable investors agreeable to make several transfers to the bank account were never found.
The Board Resolution of the National Bank of 23.08.2012 № 357 revoked the banking license of “Basis” bank as of 28.08.2012, and the bank liquidation procedure was initiated.
We believe that “Basis” joint-stock bank was liquidated deliberately. As mentioned above, the artificial obstacles for the bank operation were set up (i.e. the requirement of security fund), and later the capitalization process was hindered. All the efforts to improve the situation were cut short from the outside.
The deprivation of the joint-stock “Basis” bank clients of their accounts by NBU is a gross violation of their property right and of the Constitution, the Civil Code and Article 1 of the First Protocol to the European Convention.
Political persecutions of the civil society members
Human rights organizations in Ukraine register eventual increase in the scope of political persecutions in the country. In particular, in 2011 over 130 instances of individual persecutions, both with legal procedures and illegally, were registered. The fact that the human rights’ activists, community leaders, journalists and politicians become the victims of the persecution gives grounds to conclude that the barometer of democracy in the country reached the critical point.
Political persecutions of the civil society members can be classified into the following groups:
– restrictions of fundamental human rights and freedoms, the exercising of which weakens the bodies of power, in particular, the right of expression and the right to peaceful gatherings;
– persecution of individuals and public organizations, caused by their direct operation in exercising and protecting rights and freedoms of citizens;
– persecution of individuals and public organizations of national-patriotic nature for their activity aimed at promoting Ukrainian language, culture and history or protesting against glorification of the soviet past;
– curbing protest potential of the young generation: preventive talks and intimidation of the undergraduates and youth activists by the schools’ administration and law-enforcers.
Being aware of this situation, the human rights organizations at the end of the last year publicized the information on political persecutions of the civil society in Ukraine and demanded that authorities prove their adherence to the principles of democracy and international commitments and put an end to the persecutions on political motives; recognize that persecutions are taking place and take immediate measures to restitute the rights of the persecution victims.
Till now no official response from the authorities has been received. Meanwhile the FIDH for the first time in many years included Ukraine into the list of the states with the “most serious pressure on human rights’ activists”. The annual report of the Observatory on the protection of human rights’ activists mentions Ukraine alongside with Iraq, Uganda, Afghanistan, Pakistan, Indonesia etc.
In 2012 the persecutions of the most vulnerable groups, i.e. human rights’ and public activists, journalists and politicians, continued and gained momentum; therefore, the human rights organizations continued the monitoring of the political persecutions.
You will find some exemplary cases demonstrating the persecutions of the aforementioned groups below.
Restrictions of fundamental rights and freedoms
The instances of pressure and illegal banning of local TV broadcasting criticizing the regime are common. The national opposition channel TVi is constantly subjected to tax inspections, instigations of criminal proceedings and illegal switching off in different areas. These facts were referred to many a time in the petitions submitted by the international organizations “Reporters without borders” and “Article 19”.
The instances of use of physical force and threats against journalists for their coverage of events were registered. On September 20, 2012 the reporter of STB TV Channel Iryna Fedoriv received an anonymous phone call threatening her and her family with retribution for her investigation of the public corruption with respect to the destruction of Bilychy forest near Kotsyubinske settlement. The beating of the journalist V.Lazebnik on May 4, 2012, when he was repeatedly hit on the head with an iron bar while performing his professional duties, has never been investigated. The militia officials refused to file a protocol and to arrest the assailant.
Generally speaking, public criticism of the authorities is becoming more and more dangerous. On March 27, 2012 at a press-conference the President of the Ukrainian Banks Association publicly stressed the need of discharging the current head of the NBU due to his unprofessional activity. Next day the Association was visited by tax inspectors with non-scheduled audit, which resulted in a fine. The statement of independent media trade union of Ukraine published on October 27, 2012 became another vivid example of the rigid censorship exerted by UNIAN leaders with respect to the site editors. They were disciplinarily punished for publicizing the news under the title “Picket on Bankova [street] – Yanukovich got a boot with the Christmas tree”.
Other examples of persecutions for exercising the right to peaceful gatherings are also demonstrative. The organizers and attendees of the meetings are subject to all types of administrative punishments. Thus, on February 24, 2012 one of the organizers of public event at Maidan Nezalezhnosti was detained for distributing the condoms bearing the portrait of the Ukrainian president V.Yanukovich. The activist was sentenced to 15 days in administrative detention. Even informational and cultural events have become dangerous. E.g., on July 1, 2012, the organizers of photography exhibit “Human rights off side” were forced to dismantle it. The exhibit was to be shown to public at the time of the Euro-2012 football championship; one of its organizers Nazariy Boyarskiy was detained with administrative proceedings instigated against him.
The illegal use of force and special measures against the peaceful gatherings’ attendees is worth a special mention. Thus, on July 3, 2012, following the passing of infamous law “On Principles of the State Language Policy” by the parliament of Ukraine, the spontaneous protest meeting started in front of the Ukrainian House in Kyiv. To disperse the peaceful gathering militia special unit “Berkut” used physical force and special measures against 200 protesters. The illegal banning of small gatherings has become routine. E.g. on September 15, 2012 the activists of “Vidsich” [Rebuff] organization disseminating the movement booklets were detained. In the process of detention the students were injured, dragged along the pavement, had their clothes and belongings torn, etc. 
Persecutions for the human rights’ and freedoms’ protection activities
More pressure is exerted on the human rights and public activists, engaged in protecting human rights and freedoms. The notorious case of Yu.Kosarev, a member of “Luhansk human rights protection group” who defended the rights of hired workers of “Uspensky quarry” company, is still to be considered by the court. On May 22, 2011 the company manager assisted by the militiamen beat Yu.Kosarev and his colleague S.Ihnatov in his own backyard. The beating was filmed on video and published on the Internet. Meanwhile the criminal proceedings for resisting militia officers were instigated against them. Currently Yu.Kosarev and his colleague are in the pretrial detention center hospital. Yuriy ended up there after hunger strike, and Serhiy – after the surgery following the beating.
Here is another example. On May 24, 2012 the court passed a ruling ordering finding and arresting the “Tax Maidan” activist Rimma Belotserkivska. The criminal case against Rimma has been continuing for five years. In 2008 the woman supported Siverodonetsk residents who opposed illegal development near one of the multi-storey houses. At the time of the conflict a woman in charge of the new construction used a gas sprayer against her. The criminal proceedings for hooliganism however, were instigated against the activist. 
Characteristic inertia of the militia officials in cases where physical force is used against human rights and public activists is another disconcerting tendency. Thus, in early 2012 France granted political asylum to the leader of the Crimean branch of All-Ukrainian organization of people with disabilities and users of psychiatric help “USER” A.Fedosov. To remind the reader, in the fall of 2011 he became the victim of assault. It is noteworthy that it was the second beating of the activist; first occurred after he published the results of monitoring concerning the rights of people with disabilities and users of psychiatric help in 6 psychiatric hospitals in the Crimea. After the assault militia officials refused to register his grievance and did nothing to investigate the crime. Instead, several months later Fedosov was detained in relation to a crime committed allegedly 10 years ago (it means that A.Fedosov was 15 at the time). Due to the continued threats and complete inaction of the law-enforcers the human rights activist was forced to leave the country.
R.Shaposhnikov case has not been properly investigated yet. Shaposhnikov is the leader of “Road inspection” NGO which investigates the law-enforcers’ operation. On March 24, 2012 unidentified persons pushed him into a car, took to a forest and beat him up. Prior to this event, on February 14, 2012 the operation of “Road inspection” site was temporarily suspended under the court ruling passed on a law-enforcers’ petition.
The killing of renowned environmentalist, editor of “Ekobezpeka” newspaper, head of the Ukrainian public movement”For the right to environmental safety” V.Honcharenko became the culmination of impunity. He died in a hospital on August 4, 2012 after receiving fatal body injuries. The environmentalist was severely beaten 4 days after press-conference, where he told the public that 180 tons of chemically contaminated metal scrap are stored in Saksahansky district of Kryvy Rih..
Persecutions of national-patriotic NGOs.
Criminal prosecution for damaging the soviet leaders’ monuments is quite common. Thus, on August 22, 2012 militia of Komsomolsk city detained a 16-year old teenager who painted Lenin’s monument. The boy painted a flower and a watermelon on the monument. Criminal proceedings for hooliganism, envisaging 1 to 5 years in prison, were instigated against the boy. As a matter of fact the monument presented neither historical nor architectural value.
For the first half of the year 2012 a similar case involving young members of all-Ukrainian association “Tryzub” has been under consideration in the appellation court. To remind the reader, on December 28, 2010 the young men expressed their protest by damaging Stalin’s bust and sawing the head off it. The monument was erected in the premises of the oblast’ branch of the Communist Party In the course of investigation numerous interrogations and searches of nationalistic NGOs’ members were carried out in all the regions of Ukraine. The detainees were charged with group hooliganism. When the case was transferred to the court, the prosecutor’s office changed the charges to deliberate damage of property. All the accused were sentenced to 1-3 years in prison with deferment and fine of 110 thousand UAH. In summer 2012 the appellation court confirmed the validity of this decision.
Over the year 2012 there were no new developments in the case of historian R.Zabily, the director of the national Museum “Lontsky Jail”. On September 8, 2010 he was detained by the national security officers at a railroad station without court’s warrant. After personal search his computer and external storage device with soviet times’ documents were confiscated. Criminal proceedings on the charges of divulging the information which is state secret were instigated. The case materials are still treated as classified information. So far R.Zabily is a party to the case as a witness. 
We believe that the criminal case of so-called “Vasylkiv terrorists” I.Mosiychuk, S.Bevz and V.Shpara is politically motivated. They are charged, among other things, under Article 258 of the CC of Ukraine, with committing a terrorist act. The defendants allegedly intended to blow up Lenin’s monument in a square of Boryspil town (Kyiv oblast’), while in fact this monument has been dismantled long ago. The proceedings go on and multiple violations of the right to fair trial have been registered in the process.
Curbing protest potential of the young
It must be said that the pressure on the young generation is the least studied phenomenon, due to the fact that it is difficult to check and involves a number of subjective factors. The students are reluctant to divulge or officially confirm the facts of persecution as they feel unprotected against schools’ administration and the law-enforcers. That’s why we publish here the information provided mainly by the youth organizations’ leaders.
The practice of “preventive talks” conducted by the Security Service of Ukraine and militiamen with the activists of different youth organizations in various regions of Ukraine is common ( in particular, “Foundation of regional initiatives”, students’ trade union ‘Direct action” and others informed of such occurrences). From advice and recommendations to threats and intimidation, the young people get the message to abstain from participation in protest actions; they are interrogated about the leadership of their organizations, sources of funding etc.
The Ministry of Education, Science, Young Adults and Sports as well as the institutes’ administrations exert significant pressure on students and their self-governance bodies, if these latter do not support the ministerial policy. If the students and self-governance bodies’ leaders publicly express their discontent with official educational policies or participate in the protest actions, their universities receive phone calls from the Ministry requesting that an “educational conversation” be held with the dissenters. To put an end to manifestations of discontent the educational institutions can resort to various measures, i.e. house arrest in the students’ dormitory, as it happened to T.Konchenkova, the student of Shakhty pedagogical school.
The authorities make a point of intimidating young people for any protest actions. Thus, on March 2, 2012 two students sticking “anti-presidential leaflets” in the streets of Kherson were detained. According to militia officials, “the leaflets made fun of the head of state in insulting and gross manner”. The criminal proceedings were instigated; the students were charged with group hooliganism and forced to sign their consent not to leave the city, as a preventive measure. After investigation the case was closed and students fined for administrative infringement.
On March 27, 2012 during the mass security action MAMA, conducted in the majority of oblast’ centers of Ukraine in support of Kherson students, the militia officers in Donetsk detained B.Manyukov, O.Kiselyov and D.Dyadyk. The students were charged with another violation: “being in the proximity of the entrance to the Department of Interior in Donetsk oblast’ [they] committed act of petty hooliganism, i.e. discrediting the acting head of the state President V.Yanukovich; carrying posters bearing the President’s of Ukraine portrait, the slogans [describing the President as ex-con] and another slogan “For this leaflet the Kherson students were arrested”. Despite the fact that the case is still under court consideration, D.Dyadyk was held administratively accountable by the head of militia department. 
 Prepared by Ye.Zakharov, KhHRG, and O.Matviychuk, Civil Freedoms Center