war crimes in Ukraine

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Can a government systematically violating basic constitutional values with impunity be considered legitimate?

Fedir Venyslavsky
Analysis of (non-)observance of the most important democratic values in Ukraine since November 21 2013

In any contemporary democratic country the Constitution is considered an act of the people’s constituent power which through its adoption primarily enshrines: a) unconditional social and legal values which are recognized and shared by the overwhelming majority of the country’s citizens and form a consolidating basis for its people; b) human rights and fundamental freedoms, the exercising of which should ensure decent conditions for life in society and the state; c) clear legal frameworks which the state, its bodies and officials cannot overstep under any circumstances.

A systematic analysis of Article 5 of Ukraine’s Constitution which states that “the people are the bearers of sovereignty and the only source of power in Ukraine” makes it possible to conclude unequivocally that Ukraine’s Constitution is undoubtedly also the act by which the Ukrainian people exert their constituent power. This conclusion is confirmed by the legal position of Ukraine’s Constitutional Court (the only body with the power to officially interpret Ukraine’s Constitution and laws) set out in its Judgement of 3 October 1997 (on the coming into force of Ukraine’s Constitution). The Constitutional Court notes that “the Constitution of Ukraine as the main law of the country by its legal nature is an act of constituent power belonging to the people.  The constituent power of the people in relation to the so-called established branches of power (legislative, executive and judicial – FV) is primary (paragraphs 2 and 3 of the Item 2 of the motivational part).

The Main Law of Ukraine, as an act of constituent power of the Ukrainian people has thus enshrined unconditional social and legal values which are generally binding both for each person, for society and for the state and its bodies, and has at the same time defined their hierarchical relations. Moreover, by its political-legal nature and main purpose in the state organized society, the Constitution is considered an act designed to restrict the state’s arbitrary interference in the sphere of individual freedom and in the free functioning of institutes of civil society. Unlike the individual for whom any behaviour not directly prohibited by law is permitted, state bodies, bodies of local self-government   and their officials are obliged to act only on the basis and within the framework of their powers and in the matter envisaged by the Constitution and laws which, in fact, is enshrined in Articles 6 § 2 and 19 of Ukraine’s Constitution – the norms which also relate to the system of basic constitutional values.

Without aspiring to a comprehensive and detailed analysis of the observance of all basic values enshrined in Ukraine’s Main Law, we will focus only on the most important of these since it is specifically the overt and systemic violation of these which is painful for each and all of us, and at the same time the most dangerous for the democratic law-based state which the people have declared Ukraine to be.

We must first note that the principles of the hierarchy of all social values are set up in Article 3 of the Constitution which declares that the human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value and to affirm and ensure human rights and freedoms is the main duty of the State.  This article establishes that the state is answerable to the individual for its activities.  That is, among all constitutional values the priority is given specifically to the idea of the highest social value of the individual. It is by no means coincidental that Section II of the Constitution: “Human and Civil Rights, Liberties and Duties” is the largest in terms of content.  Nor that Article 22 of Ukraine’s Main Law has declared that “Constitutional rights and freedoms are guaranteed and shall not be abolished.” And directly prohibits the diminishing of the content and scope of existing rights and freedoms in the adoption of new laws or in the amendment of laws that are in force.

What is meant by “the diminishing of the content and scope of existing rights and freedoms” was interpreted by Ukraine’s Constitutional Court in its Judgement from 22 September 2005 (on the permanent use of land plots). “Abolition of constitutional rights and freedoms – this is their official (juridical or actual) liquidation. The diminishing of the content and scope of existing rights and freedoms is their limitation. In the traditional understanding of activities, the defining concepts of the content of human rights are the conditions and means which constitute the individual’s ability to satisfy his or her requirements for existence and development.  The scope of human rights – this is their essential quality, expressed by quantitative indicators of the individual’s possibilities reflected by the relevant rights which are not homogenous and general.  What is generally recognized is the rule by which the essence of the content of basic law can in no way be violated.” (fourth paragraph of Item 5.2 of the motivational part).

On the basis of such fundamental ideas, we will try to make an impartial constitutional-legal analysis of the political situation in Ukraine in chronological order over the last two months.

As we know, the first mass protests in Ukraine were caused by the radical change in the direction of Ukraine’s foreign policy taken by the President and Cabinet of Ministers at the end of November 2013, seen in the refusal by the head of state to sign the EU-Ukraine Association Agreement. As the legal experts well-known both in Ukraine and abroad Volodymyr Butkevych and Vsevolod Rechytsky quite correctly noted with regard to these events in their commentary, the Cabinet of Ministers by adopting on 21 November 2013 Instruction No. 905 “On the suspension of the preparation for signing the Agreement on Association between Ukraine on the one hand, and the European Union, the European Community on Nuclear Energy and their member states, on the other” overtly infringed Article 85 § 1 of Ukraine’s Constitution, according to which “determining the basic principles of domestic and foreign policy” are among the powers of the Verkhovna Rada, and article 11 of the Law on the Basic Principles of Domestic and Foreign Policy from 1 July 2010.  According to the latter, “Ensuring Ukraine’s integration into the European political, economic and legal realm with the aim of receiving membership of the European Union is among the basic principles of Ukraine’s foreign policy.”  Thus the government demonstratively exceeded its constitutional powers and flagrantly violated one of the fundamental constitutional requirements – the functioning of state bodies within the legal frameworks established by Ukraine’s Constitution. Ukraine’s President also, by refusing on 28-29 November to sign this agreement, infringed his oath the text of which is fixed by Article 104 of the Constitution. According to this oath he also commits himself to observe Ukraine’s Constitution and laws (including the Law on the Basic Principles of Domestic and Foreign Policy – FV).

The second crucial event with respect to our analysis was the demonstratively brutal and absolutely unwarranted dispersing on the night from 29 to 30 November 2013 of the then peaceful protest on Independence Square in Kyiv. Officers from the special police units of public security “Berkut” tried to vacate Independence Square, demonstrated cynical disregard for the individual, his honour and dignity, inviolability and security (as the highest social value in Ukraine) and at the same time a flagrant and public violation of a whole range of articles of the Police Act and the Decree of the Cabinet of Ministers from 27 February 1991 No. 49 which adopted Rules for the Application of Special Means in Protecting Public Order (which, for example, prohibits inflicting blows with rubber and plastic truncheons around the head, neck, stomach and genitals). Such actions thus show overt contempt and cynical violation by police officers of no less than two fundamental constitutional values: treatment of the individual as the highest social value and significant exceeding by a state body (the police) of their legally established powers. Furthermore, such actions undoubtedly contain elements of a whole range of crimes set out in Ukraine’s Criminal Code.

What is no less indicative is the lack of effectively any response to the above-mentioned overt violations of the law by police officers from the Minister of the Interior. In accordance with Article 7 of the Police Act he is in charge of all Ukraine’s police force, and according to Item 11.5 of the Provisions on the Interior Ministry of Ukraine, passed by presidential decree on 6 April 2011, organizes and monitors implementation of the Constitution and laws of Ukraine; the acts and instructions of the President; the acts of the Cabinet of Ministers in Interior Ministry bodies. There was also effectively no response from Ukraine’s President as the guarantor of the observance of human and civil rights and liberties. After all, the President, according to Item 10 of Article 106 of the Constitution has the constitutional right to take unilateral decisions to terminate the powers both of the entire government, and of individual ministers. This means that the lack of any reaction by him to the actions of police officers, and consequently of the inaction of the Interior Minister can be viewed on the one hand as tacit approval of flagrant violation of fundamental constitutional values, and on the other – as a direct infringement of the oath in which, for example, he committed himself to “uphold the rights and liberties of citizens”.

The third significant event was the adoption by the Verkhovna Rada on 16 January 2014, though flagrant violations of the procedure established by the Law on the Regulations of the Verkhovna Rada, of a number of laws aimed at: a) overt restriction, diminishing of the content and scope of current constitutional human rights and liberties (the right to peaceful mass gatherings; freedom of movement; freedom of speech; freedom of assembly; freedom of association and so forth); b) increasing liability for procedure in organizing and holding mass events – despite the fact that there is effectively no legislative regulation for this procedure in Ukraine at all since in all 23 years of independence a law on freedom of peaceful assembly has still not been passed; c) significant extension of the powers of the authorities, giving them the right to restrict human rights without a court ruling (for example, enabling the National Commission on Communications and Automation of Information to restrict access of subscribers to the Internet). Despite the flagrant violation of procedure in adopting these laws and the overtly unconstitutional nature of many of their provisions, the President signed them and had them officially published, consciously sharing with the parliamentary majority political liability for their adoption, and therefore yet again demonstrating overt contempt for basic constitutional values.

The fourth significant event which most clearly demonstrates the contempt of the authorities for constitutional values is the escalation in mass protests and their turning into open violent confrontation. The use of force is unacceptable, whether by protesters, or police officers.  It is necessary nonetheless to focus attention on the activities of the latter as representatives of the authorities who are obliged to act within clearly established legal frameworks, even carrying out measures to protect and reinstate public order in extraordinary conditions as the events taking place in Ukraine are without any doubt. However as practice shows it was specifically the actions of the law enforcement bodies which yet again demonstrated total contempt for the individual, his life and health, honour and dignity, inviolability and security as the highest social value, the total and arrogant exceeding by the authorities of their powers and the lack of any adequate reaction to these actions from the Interior Minister, the bodies whose duties include supervision over the actions of the police and from Ukraine’s President. 

The authorities have acknowledged the death of no less than four protesters. Television broadcasts are full of documented reports about the deliberate and mass inflicting by police officers of grave bodily injuries to protesters (for example, , the loss by many of them of sight in one eye); about overt and demonstratively public humiliation of people, and torture (stripping a person naked in temperatures of minus 15, and police officers watching this silently, and in so doing, approving them); about the deliberate obstruction of journalists carrying out their work (during the protests in Ukraine more journalists have been injured than in some countries where there is military action); about the deliberate attacks on doctors and the destruction of medical care points. As experts on international law have justifiably pointed out, such cases do not only demonstrate that the police have totally overstepped their authorities, but also the violation of virtually all rules for waging war as established by international conventions. And once against the conclusion is clear: the lack of any attempts whatsoever to bring Berkut officers to answer demonstrates tacit (or not tacit?) approval of these actions by the authorities. And as any legal expert knows from their student days, impunity generates a situation where all is allowed.

The fifth important event was the adoption by the Cabinet of Ministers on 22 January 2014 of Resolution No. 12 which adopts Procedure for Taking Additional Measures to Protect Citizens’ Safety. Through this resolution, the government has given the Interior Ministry bodies, via their head, the right to temporarily restrict transport on streets, roads, buildings (territories) and temporarily restrict citizens’ access to particular areas and buildings.

This resolution is yet another sign that the Cabinet of Ministers is demonstratively exceeding its constitutional powers since in accordance with Article 92 Item 1 of the Constitution, human rights and civil liberties, and the main duties of citizens are defined solely by Ukraine’s laws. In connection with this we should point out the power of the President, set out in Article 106 Item 16 of the Constitution, namely the right to revoke acts of the Cabinet of Ministers.  However as practice has shown, in this case also the head of state has not in any way reacted to the overtly unconstitutional resolution of the Cabinet of Ministers.

And finally, the sixth significant elections which has accompanied the political events in our country: hundreds of court rulings throughout Ukraine on such preventive measures as remand in custody against participants in the mass protests, and not one fact not only where the court has taken such a measures in respect to at least one police officer, but even where the prosecutor or other law enforcement bodies have applied to the courts for such a measure to be imposed. Comment is superfluous.

Perhaps less significant, given the above facts, but no less indicative from the point of view of observance of basic constitutional values are the following which are taking place on a wide scale in the country: a) the organization by the authorities in various cities of rallies “in support of the President” (which the heads of the local authorities openly announce on television) since the very fact of mass measures at the initiative of the authorities is a nonsense in any democratic state, and discredits the very idea of peaceful gatherings; b) the openly contemptuous, denigrating statements made by one of the regional state administrations addressed at virtually half of the Ukrainian nation which have not received any reaction from the President (who has the constitutional right to himself dismiss the head of any state administration); c) engagement by the authorities to participation in pro-regime mass events of so-called titushki (effectively hired thugs prepared to do any dirty jobs for money), armed with batons, sticks, firework explosions and other “convenient” means which can be used to endanger the life or damage people’s health with the tacit approval, more often the avert support for such actions by law enforcement officers (who, staring into a television cameral cynically tell all of Ukraine that these are the same peaceful participants in mass events as all the others (albeit with batons); d) the virtually total lack of unlawful actions by participants in mass protests both towards Ukrainian citizens not taking an active part in them, and towards their property (even in the epicentre of the violent confrontation, not to mention in other places, there are no cases where shops, offices of private homes have been destroyed, and is usually the case in many countries where there are similar mass protests). 

Furthermore, as numerous reports in the media demonstrate, the participants in protests have organized themselves into units in order specifically to prevent similar unlawful actions of those titushki whom many believe have received among others this task by those commissioning them. Once again commentary is superfluous.

In general, all of the above in our view convincingly indicates that the authorities, with the active participant, or the tacit consent of whom such systematic and mass, overtly demonstrative and absolutely unpunished violation of basic constitutional values have become possible, have lost legitimacy both in the eyes and the feelings of the overwhelming majority of the people, as the bearer of the sovereignty and the single source of power in the state. And the only constitutional way of re-establishing the legitimacy of the authorities in any democratic law-based state has always been and remains early elections.

In our view, at present this is virtually the only balanced decision capable both of reducing tension in society and averting further casualties, and averting the potential threat to Ukraine’s territorial integrity.

PS All representatives of the law enforcement bodies should already bear Article 60 of Ukraine’s Constitution in mind: “No one is obliged to execute rulings or orders that are manifestly criminal. For the issuance or execution of a manifestly criminal ruling or order, legal liability arises.

Fedir Venyslavsky, PhD in Law, is a constitutional law specialist from Kharkiv


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