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Where are you going, Ukraine?

10.09.2021
First of December Initiative Group

Appeal of the First of December Initiative Group on the situation with the rule of law

It seems that we still have not realized the eternal Ukrainian question “Where to go?”.

It turned out, that even having a record in Art. 85 of the Constitution of Ukraine about “the State’s strategic course for achieving the full-fledged membership of Ukraine in the European Union and in the North Atlantic Treaty Organization”, we are faced with that question almost daily. Because the real practice of out state in many areas contradicts such European aspirations and recreates an old social agreement with many rudiments of the Soviet order. And nowhere does this practice take such grotesque forms as in the rule of law.

The following criterion of successfulness or unsuccessfulness of a country is relevant in the world: “In all successful countries the elite creates laws for itself and spreads them to cover others. In unsuccessful countries the elite creates laws for others and exceptions for itself”. This criterion is a sentence for the Ukrainian legal system, because selective justice has been operating in our country for a long time, as a result the authorities often use the laws against their political opponents and free their political allies from their effect. The “Telephone law” based on the logic of political expediency still functions in the country, as well as corruption based on selfish personal or clan interest.

Of course, the situation “a country without an Arbitrator” creates a very complicated moral atmosphere among the people, and psychological weariness is great. However, striving to survive and secure their primary interests, many people have to resort to corruption, which became a regular mean of dealing with everyday situations. Therefore, the responsibility for this state of affairs, of course, lies with the government.

However, it would not be fair to only blame the leadership: the corruption pierces all levels of the society. That is why all current attempts to overcome the corruption hit the thick wall of social opposition. As a result, legal disorder and tacit corruption agreement significantly distort the legal consciousness of society. An odious rule is being formed at all levels of society: “Strict laws are compensated by the non-obligation to abide by them”, and being able to avoid punishment becomes a measure of success in life.

It turned out that in such atmosphere it is difficult for people to live and for out leadership to govern the country. This year the administrative practice was “enriched” by a new know-how: adoption of the administrative decisions that replace the work of law enforcement agencies and courts. In other words, if a problem cannot be solved it should be circumvented. We are talking about the decision of NSDC concerning the sanctions against the residents of Ukraine and the legal entities registered in Ukraine,as well as the foreigh residents who are in the jurisdiction of Ukraine.

The Law “On Sanctions” does not contain any indication that they can be applied against the residents of Ukraine and Ukrainian legal entities. The only opportunity for that is seen in the interpretation of the saying “as well as the subjects that engage in terrorist activities, since residents of Ukraine and Ukrainian legal entities can also be such subjects. However, in such cases there must exist irrefutable evidence of being involved in terrorist activity. In short, by introducing the practice of sanctions, the leadership of the state shows complete distrust in the national law enforcement and judicial systems, which are unable to classify offences, gather evidence and bring the case to a lawful and fair court decision in an adversarial process.

In particular, if there were evidence of involvement of Victor Medvedchuk and Taras Kozak in the terrorist activities, the criminal proceedings should have been opened, it was necessary to collect evidence, notify them of suspicion and carry out a trial in a Ukrainian court. Bypassing this procedure can be costly for the Ukrainian state, since the decision of the European Court of Human Rights (ECtHR), to which Viktor Medvedchuk applied, may not be as the Ukrainian leadership hopes. And Ukraine's loss in this case may have a negative impact on the prospects of pro-European political forces.

The application of sanctions against Victor Medvedchuk received a generally favourable response in society – and we would have also welcomed it, if he was legally brought to responsibility, since he crossed the red lines many times. However, the popularity of those sanctions only indicates the law legal culture of the society. Adapting the words of Metropolitan Sheptytsky to our situation, we can say that an illegal act in the name of patriotism is all the more dangerous for the people, the more they may like it.

Human rights activists rightly cite the numerous offences contained in the decision of the National Security and Defence Council of 2 and 15 April, 14 May, 18 June, on sanctions against citizens of Ukraine. In particular, it is illegal deprivation of Ukrainian citizenship, forced eviction from the country despite the fact that sanctioned persons have families in Ukraine whose members are citizens of Ukraine, etc. However, what is especially striking is the fact that the sanction lists include at least 8 participants of hostilities who as members of voluntary battalions fought for Ukraine за Україну in 2014-2015. Such actions of the state against its defenders are simply immoral! Besides, where would the residents of RF go, who protected Ukraine from the aggressor by taking up arms? Obviously, they cannot return to Russia, they would face execution and death there, and they won’t be able to leave to another country and have an asylum there with the status created by the decision of NSDC. However, despite the protests of the human rights protectors, they are not removed from the sanction lists.

Strict and repressive measures that are applied indefinitely and violate human rights are not restrictive, but punitive. Thus, in the situation of application of such measures the state must ensure the observance of a number of safeguards, in particular, no punishment without a law, the right to a fair trial by a tribunal established by the law, observance of the principle of presumption of innocence, the right to be informed immediately and in detail about the nature and causes of accusation, the right to effective remedy, right to respect to private and family life, the right to peacefully dispose of one's own property, etc. However, in the situation with the application of these sanctions, none of these safeguards was met.

Another attempt to circumvent the problem of inefficient judiciary is to provide greater and, in the opinion of human rights activists, uncontrolled powers of the SBU, which are provided by the bill on SBU, which is to be considered by the Verkhovna Rada. This will only increase the tension described above.

With this appeal, the First of December Initiative Group wants to warn the state leadership: it will not be possible to circumvent the problem of restoring a fair trial. Although the attempts to solve complex problems by simple actions may seem effective, it is short-lived, because these problems will only exacerbate and generate new negative consequences. Apparently, the authorities think that they cut the Gordian knot. However, they actually opened the Pandora's box.

According to Article 3 of the Constitution, “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”. Considering all of the above, it is impossible not to conclude that these articles of the Constitution have not become the basic law of our life, but are front declarations that testify: Ukrainian democracy in many areas remains imitative.

However, this difference between declarations and reality will one day lead us all to be judged: both the leadership of the state and society as a whole.

We should recall that the First of December initiative group, established on the twentieth anniversary of the referendum, aims to establish new rules. Today the group includes leading Ukrainian intellectuals: Oleksandra Gnatyuk, Volodymyr Yermolenko, Yevgeniy Zakharov, Yosyp Zisels, Igor Kozlovsky, Myroslava Marynovych, Igor Yukhnovsky, Yaroslav Yatskiv.

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