war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

The right to life

Shall we cancel the death penalty?

A sly trick, the so-called moratorium on execution of death verdicts, was introduced in Ukraine by the will of the President, who managed in this way to meet the demand of the Council of Europe notwithstanding the position of the majority of MPs and the population. Thus we have not an actual law: the President just suspended the juridical procedure, having refused after 29 November 1996 to consider the requests of mercy. It follows from here that the death penalty cannot be executed. This decision satisfies no one. It is clear why it does not satisfy supporters of the death penalty. But I, a convinced enemy of the capital punishment, also feel dissatisfaction. One reason is that hundreds of the sentenced to death, whose requests of mercy are not considered for years, feel dire psychological torture that cannot be imagined. The second reason concerns the life conditions in our prisons, but the most painful is the unreadiness of the Ukrainian society to solve this problem in its essence. All supporters of the death penalty refer to this unreadiness. A statistical citizen votes for the death penalty, but if it is banned, then, I am sure, crowds of citizens would not revolt in the streets. The public in any developed country become reconciled to the ban of the death penalty many years later after the ban, when citizens see that the ban has not changed the criminal situation in the country. The ban of the death penalty in the beginning is always the will of the political and intellectual elite. The unreadiness of our intellectual elite to ban the death penalty is the most distressing circumstance. Infrequent and inefficient attempts of some public organizations, journalists or public figures to discuss the topic cannot break the dense resistance, which is felt almost physically. Mass media much more often air the popular arguments against the ban of the death penalty. And I am not surprised to came across an article in my favorite newspaper ‘Den’, which is a very clever defense of the death penalty in Ukraine. The more so that the fact which is described in the newspaper does not favor abstract philosophical and juridical discussions. They write about the trial of a maniac who killed 52 innocent people, one millionth of the total Ukrainian population.

Certainly, the relatives of the victims cannot agree with the abolition of the death penalty, the very idea seems to them sacrilegious. The reader may feel the same emotions, because it is natural to sympathize with victims. But journalists must think more soberly. I have a question to them: if they interviewed relatives of those who perished because of medical mistakes, what would the relatives propose to do with those who caused, due to their negligence or ignorance, death to their dear ones? I met such relatives and they said: such doctors must be put before a firing squad. Nonetheless, the society does not introduce the death penalty even for brazen ignorance of a medical doctor. A relative is under emotions, which is natural. We must sympathize with him, but we must not follow his wishes too literally. When a journalist uses such emotions for discussing some juridical or philosophical problem, he uses a sleight-of-hand.

Once I participated in a TV round table dedicated to the discussion of the death penalty, and one of my opponents, a prosecutor, asked me what would I do with the person who would attempt to kill my child. I answered that I would tear him into pieces. But we spoke not about myself, or any other individual, but about the society. We discussed not a personal revenge, but the death penalty, that is a certain social institution. This difference must be clearly understood. When President Kuchma says that, as a human person, he would kill the murderer of 52 citizens of Ukraine, I sympathize with him. This is a typical case when the individual and the state reaction on a situation may not coincide. Until the death penalty is contained in the Penal Code of Ukraine, the serial maniac Onoprienko, if proved guilty, even in a part of his crimes, will not avoid the capital punishment. Another question is will this verdict be executed. I seldom praise our executive power, but the moratorium on executions of the death penalty is the undoubtful accomplishment of the President. We, opponents of the death penalty, have difficulties in convincing the society since usually the logical arguments are replaced with emotions and examples. It was so in other countries where this problem was discussed.

I believe that we need another approach to this problem. This is not a political and not a juridical question, it is a culturological question in the full sense of the word. Let us try to go out from this circulus viciosusand sum up the main arguments pro and contra.

Arguments of opponents of death penalty

Counterarguments of supporters of death penalty

1. The death penalty does not decrease the number of murders, which is confirmed by statistics of all countries. Moreover, the abolishment of the death penalty does not correlate with the number of the gravest crimes (references to statistical data gathered during decades).

1. The abolishment of the death penalty under the existing abnormal economic conditions resulting in the growing rate of crimes will destroy the last of restraining factors (references to killers who commit crimes after a sober account of all pros and contras).

2. The state has no right to apply the capital punishment, since the courts very often make mistakes, so the state can cause the death of innocent people.

2. One must perfect the courts in order to avoid mistakes. The death penalty is applied to extremely dangerous recidivists, who are practically incorrigible.

3. Instead of the death penalty one must introduce the incarceration for life, which can be applied more widely than the death penalty. So the society will be better protected from incorrigible recidivists, since the death penalty is applied less frequently than grave crimes are committed.

3. The upkeep of prisoners for life is too expensive. We cannot afford this sort of money.

4. The death penalty presupposes the existence of executors, legal killers, which is amoral and harmful for the public morals.

4. The fair retribution may not be amoral. If the death penalty is abolished, it will provoke citizens to lynch the criminal.

Objectively speaking, the arguments and counterarguments seem to be equal in strength. The solution is defined by psychological preferences. Personally for me argument 2 is psychologically insurmountable. Two innocent people were shot in the Chikatillo case and three more were shot in the case of Mozyr maniac in Belorus. I am sure that this is a serial state murder, which is possible under a completely perfect system of legislation. I understand my opponents who affirm that such errors are very infrequent, especially under an efficient Western court system. In contrast to me they consider that the court system can be made more perfect, and thus the problem will be abolished.

However, regardless of the equivalence or not equivalence of the arguments and the counterarguments, the problem has to be solved after the disintegration of the Soviet Union, because we are coming towards Europe and willy-nilly have to accept European values. In Europe there remained no countries (except some post-Communist ones) where the death penalty is retained. As to the USA, the most states have retained the death penalty, but a fierce fight is being carried for its abolishment. In the USA the retaining of the death penalty is explained by excessive democracy. We prefer to call it the will of the people. However, upon the whole, we see that the culturological dominant ousts the death penalty from Europe and presses it in the New World. The culturological dominant dictates the Western world a certain model of the social behavior. In the 18 thcentury Europeans, especially French, carried out fierce debates on public executions, including sophisticated ones. A century before debates started if torture may be applicable (we mean legally permitted procedures, not illegal actions that even now are practiced by police in many countries, certainly including ours). Now nobody considers torture normal, the mass consciousness absolutely rejects this form, but the same society supports statistically the death penalty. The recent public execution in Chechnya arose a wave of indignation in all CIS countries, although a furtive execution inside prison walls is justified by the majority.

During the last two centuries the public consciousness of the Western world drifted considerably. The philosophy of right has included the right for life and private inviolability. Most European states refused from the right to kill criminals, thus confirming their culturological affiliation with Christianity, whose commandment ‘thou shall not kill’ is the first and absolute law.

Israel, where Judaism is a state religion, actually does not apply the death penalty, and in the legislation it is retained only for terrorism and crimes against humanity. During the entire history of Israel the death penalty was applied only with respect to Nazis who were guilty of the holocaust. Thus, Israel, being under a strong Oriental culturological influence (a great proportion of Israeli came from Asia), on the legislative and law-applying level demonstrated herself as a state belonging to the Western civilization. Meanwhile, the Oriental countries which appeared after the disintegration of the USSR, by and by are attracted to the field of Islamic influence and begin to apply the laws of Shariat. They do not abolish the death penalty; contrariwise, they started public executions. It is quite clear that any attempts to abolish the death penalty in Islamic countries is too early. I am far from blaming such countries, since here we deal with another type of civilization, which at present sets and solves quite other problems.

However, a country, that regards its future in the framework of the Western civilization, just cannot afford to retain the death penalty since it threatens political isolation and other complications with respect to European countries, which are nowadays donors to post-totalitarian countries, which have dropped for years from their proper culturological frame. All the same we shall have to solve this problem not only in the context of our internal and external policy, but also in the framework of our culture. This demands intellectuals to join the discussion, which is now stays on a miserable and irritating level.

Now a loud campaign is carried around the case of Onoprienko. If one believes mass media, the entire problem consists in the moratorium, and we shall sleep quietly if to make an exception for Onoprienko. But who may guarantee that in our lawless and amoral post-totalitarian country another serial murderer will not appear, who will be captured after the death of several scores of victims? The attempt to defend the death penalty because of a serial murderer is psychologically and politically invalid: this demonstrates that we do not understand what we are doing. And this ignorance is unfortunately demonstrated by the political elite. In six months, if we do not abolish the death penalty, we shall be marched out of the Parliamentary Assembly of the Council of Europe, since we have clearly demonstrated that we are not in Europe yet. On the other hand, we are not in Asia. Ukraine is not attracted to the Orient, like Russia, to say nothing of the post-Soviet countries of middle Asia. Ukraine can be turned to the Orient only by force, as it happened during the last three centuries, when it belonged to the Russian Empire.

So we must return to our European sources and correspondingly measure our actions. The sooner our political elite will comprehend this, the sooner we shall become a normal European country. The most important things now are the will and understanding the essence of the problem. We must not return to the execution of the death verdicts. On the contrary, we must exclude the death penalty from the Penal Code of Ukraine. We must cross the precipice between the Communist and normal world with one leap. Otherwise, being afraid and hesitating, we shall fall down.

Freedom of expression

Protection of journalists’ rights in Ukraine

The IREXProMedia started to realize a program of legal defense and education in Ukraine. ‘Recently a wave of libel claims, physical attacks and illegal persecutions aimed at punishing mass media and preventing them to do their job which consists in giving the Ukrainian people necessary and important information occurred in Ukraine’. This was declared by Mary Mysiex, the manager of the program ProMedia, commenting on the reasons of starting this program. The program is ready, if necessary, to grant juridical counseling and legal protection to mass media and individual journalists. One of the main directions of the program is granting expert aid to journalists at the stage of the preparation of materials in order to avoid libel claims. Besides, the program is prepared to pay the expenditures for certain trials, defending journalists. The program will carry out monitoring of persecutions of mass media in Ukraine, to inform the public on the trials of mass media, to analyze tendencies that cause weakening mass media rights and help to lobby laws which could help mass media to inform the public truthfully, fully, and operatively.

The administration of the program can be contacted through telephones 224-73-16 or 220-77-61 (Mary Mysiex, Gennadiy Pochtar). The legal counsellor of the program will be the known Kyivan advocate and human rights protection activist Natalya Petrova.

ProMedia is a program aimed at supporting independent mass media; it is financed by the US Agency of international development. This particular program will be financed by the Consortium ‘Superiority of right’ ARD/Checchi.

Our informant


The Center of legal defense of journalists has been created in Sumy. The aim of this organization is to support the legal defense of journalists. Parallelly the Center will consult readers in actual legal questions, in changes and amendments to the operating legislation. The Center will be headed by Galina Nakonechnaya, the senior prosecutor of the region procurator’s office.

Our informant

Social and economic rights

An open letter on atomic energy stations

Mykola Domnich

Ukrainian radio

26, Khreshchatyk St.

Kyiv 252001

In the TV feature ‘Business Herald’ of 25 November, which is edited by you, the topic of building the second block of Khmelnitsky atomic electric station (KhAES-2) and the fourth block of Rivny atomic electric station (RAES-4) was discussed. In particular, the attitude of the population to atomic electric stations was debated. You stated that the Ukrainian population does not see any alternative to AESs. I believe that it will be more fruitful to discuss the question more concretely.

What concerns the operating AESs, there is no real alternative for their replacement in the near future. Experts say so, the population feel so. There is no noticeable proportion of the population that demands to close operable AESs (except the Chernobyl one). Even among public ecological organizations the idea of immediate closure of all AESs is expressed only by extreme radicals.

However, the reaction to the construction of KhAES-2 and RAES-4 is quite different. In October 1998 I personally participated in the tour in Khmelnitsky region of the group representing seven ecological organizations. It appeared that the absolute majority of the population is against the construction. Paradoxically it concerns those districts which suffer most of frequent cutoffs of electricity. The population disagrees with the construction not because of ignorance or ‘radio phobia’. There are many serious arguments against this construction.

What concerns RAES, it is built on the intersection of tectonic breaks on karst grounds. Subsidence of rocks is frequent here; during building RAES-3 the foundation plate under the reactor broke, and it was made of concrete one meter thick. The predicted seismicity in this place is estimated as six balls according to the Richter scale. Serious changes in hydrogeology increase seismicity at least by one ball, and it is forbidden to build AESs under such conditions.

KhAES has a shortage of water for cooling the second block. It was established by the independent expertise headed by academician D.Grodzinsky in 1992. Nonetheless, there were plans to build six blocks. All these projects were developed in the Soviet Union before the Chernobyl catastrophe. The empire needed to pump energy to their vassals in the East Europe. That was why the places for AESs were chosen close to the Western frontier. The projects did not pass through solid economic and ecological expertises; it was replaced by the will of the Central Committee of the Communist Party.

Now we live in a new independent state, Ukraine, and she has her own legislation. According to the operating laws, each such project must have a technical-economic substantiation (TES). Now there exists the TES of the Soviet times, which is based on the economic data that are quite different from the data of the present time. It is impossible to take a decision to start the construction on the basis of the old TES.

The supporters of the construction replace the serious substantiation by the populist slogan: ‘We lack energy’. Ukraine produces energy per head not less than other European countries. We lack energy because Ukraine is the ‘world champion’ in non-efficiency of using energy. The Soviet tradition of wastefulness has not been overcome, on the contrary, it became more powerful. For example, in 1996 ‘Krivorizhstal’ produced only 30% of steel compared to 1990, but used 80% of energy of 1990. Now there are many enterprises that produce nothing, but they consume energy and do not pay for it. As a result, thermal electric stations have not money to buy fuel, so they stop too. There is no crisis of electric power, there is crisis of payments. We may build many new blocks, but if the energy is wasted, the crisis will continue. The State Committee for economizing energy has been created, but nobody economizes.

The new atomic blocks do not assist to solve the gravest problem: how to fight with peak loads. For this atomic energy blocks have not enough maneuverability, in contrast to hydro and thermal electric stations.

Bearing in mind all these arguments, it is easy to understand the population’s attitude to the construction of KhAES-2 and RAES-4. The profound crisis in Ukraine does not allow us to raise the question of the complete closure of all atomic stations, as it is done now in Germany. But it is the moral duty of ecological organizations and journalists to focus the attention of the interested citizens on inadmissibility to build KhAES-2 and RAES-4.

We believe that in the mentioned transmission you gave a biased presentation of the problem. This violates the right of Ukrainian citizens to the objectivity of information on the state of the environment (Article 50 of the Constitution of Ukraine and Articles 5, 9 of the law ‘On information’).


As concerns an alternative to the development of atomic stations, this alternative is in the economical use of energy. Nowadays certain kinds of production in Ukraine demand 3 – 6 times more energy than abroad. The growing cost of energy carriers makes the Ukrainian products incapable to stand competition and thus makes the economic crisis more profound. This is the problem that must be considered every day by authorities, public organizations and mass media. Here lies the way of Ukraine to the future!

Yours respectfully,

Sergey Fedorynchyk

Head of the information center

Ukrainian association ‘Green World’

Women’s rights

A paramilitary organization is banned

On 23 November Lviv region court gave the verdict in the case of Evgen Fil and Vasyl Derevlianko, activists of Ternopil organization ‘Stepan Bandera trezub’. They were accused of the creation of the paramilitary organization ‘Trezub’. Both got 18 months of incarceration conditionally. This verdict can form a precedent for several nationalist organizations, such as UNSO, ‘Patriot of Ukraine’, SNPU and similar rightish unions, whose activities can be assessed in the same way.

‘Den’, No.228, 27 November 1998

On refugees

A militia badge must not be a guarantee of impunity

The Sebastopol human rights protection group is worried by the circumstances of death of Andrey Zolotov, a 17-year-old youth, and heavy wound of Andrey Shevchenko, of the same age. The tragedy was caused by shots from a pistol fired by General-Lieutenant Vivat Beloborodov, the head of Sebastopol Directorate of the Ministry of Interior.

The case was investigated by General L.Borodych, Deputy Minister of Interior, who considered the actions of General Beloborodov as ‘well-grounded and justified’. We cannot find this investigation either objective or sufficient. Our group is especially worried by the attempts of militia to conceal the circumstances which led to death of one and heavy wound of the other youth. According to the available information, militia officers prevented Andrey Shevchenko’s mother to visit her son, who was kept in the hospital. Meanwhile, Andrey Shevchenko, who was in a very grave state, was interrogated without advocate. The interrogation lasted to the small hours of the morning.

The Sebastopol human rights protection group deems necessary to start immediate, objective and unbiased investigation aimed at establishing all details of the tragedy. Taking into account the interest of law-enforcing bodies to hush the matter, a broad public resonance and grave consequences of General Beloborodov’s actions, all facts established in the course of the investigation must be made public.

The Sebastopol human rights protection group appeals to all who supports our attitude to write letters to President Leonid Kuchma, to the Minister of Interior Yuri Kravchenko and the General Prosecutor Mikhail Potebenko.

Interethnic relations


Some penologists regard various forms of pre-term release or changing the term of incarceration as an alternative punitive measure. Socially useful work plays an important role here. Law-breakers are released and work the rest of their prison term for the society.

Other variants are the permission to stay at home under surveillance, or to live in hostels, or releasing prisoners for some courses or service, or some ways of release on parole.


The world practice in alternative to incarceration punishments shows that the alternative punishment often fails. The first problem is that of application. Judges, as experience shows, are unwilling to issue alternative sentences. The judges rather use such measures as alternatives to other measures, not requiring incarceration. Norman Bishop studied this question in Europe and he came to such a conclusion:

‘Statistical data clearly testify that alternative punishments are used much less often than it were possible, and when they are applied, they replace not incarceration, but other punishments’ (Bishop, 1988).

This is confirmed by the fact that new alternatives attempted during many years did not noticeably affect the steady growth of incarceration in many parts of the world. For example, in England and Wales after a long period of reforms the proportion of the incarcerated people older than 17 increased from 14% in 1977 to 19% in 1987.

So, one must analyze why all enthusiastic efforts directed at the replacement of incarceration by milder sanctions do not bring the expected results. The NACRO working group investigated this question and came to the conclusion that the development of milder sanctions was imperfect in three respects.

First, there were no distinct instructions about how to apply new kinds of punishment. The NACRO report lists both the drawbacks of the legislation and the appellation system with respect to distinct explanations about how new measures of punishment must be applied. As a result, some judges applied these new measures to petty law-breakers, others – to those who were unemployed, third – even to graver crimes, forth – with respect to women and younger people. So, these important questions were left for the decision of the judges.

The second reason why the alternative punishments happen to be the inadequate replacement of incarceration lies, according to the report, in the fact that ‘punishment without isolation from the society was badly organized and thus did not provide the complete and consistent application’.

While the prison routine is simple and definite, the non-prison punishment was often organized by the local authorities in various ways, without a distinct national structure. Judges did not trust such forms of punishment and abstained in applying them.

At last the alternative to prison is considered as ‘softer measure’ that is not an actual punishment. According to the report, the organization of such sanctions was the responsibility of the probation service and public works, and they introduced much confusion to the process.



Those who support the alternative measures of punishment often use two very practical arguments. They say that the alternative measures are less expensive and more efficient. Investigations were carried out in order to compare the recidivism level among those who stayed in prison and those who, for the similar crimes, executed public works. The results vary but upon the whole they show that after public sanctions the probability of recidivism is not larger that after incarceration, and some researchers found that the level after alternative sanctions is much lower.

Expenditures for alternative measures of punishment appeared to be clearly and unambiguously smaller than for incarceration. Thus, in England and Wales in 1994/95 a month of incarceration cost 2190 pounds, while probation and public works cost about 100 pounds. However, the state could not reduce the total cost of the combined punishment (in and out of prison). In order to decrease the cost significantly, it is necessary to reduce the number of the incarcerated to such a level which would permit the state to close separate prisons, because the main expenditures are directed to the maintenance of the buildings and paying the personnel.

That is one of the reasons why some countries that experience now the economic crisis did not try to introduce non-prison punishments, because it would not enable them to reduce expenditures.



The main international documents concerning the punishment of criminals in alternative forms is the UNO Minimal Standard Rules relative to measures of punishment without incarceration. These rules known as the Tokyo rules were adopted by the UNO General Assembly in accordance with Resolution 45/110 of 14 December 1990.

The Council of Europe developed its own rules on ‘public sanctions and measures of punishment’ adopted by the Committee of Ministers in 1992. In the explanatory notes to the European rules they say about the necessity to guarantee that ‘the introduction of new technologies and developments in the sphere of supervision and control, as well as the tendency to decrease expenditures, should not impinge the rights of law-breakers’.



The countries that have just started to implement the system of alternative punishment can avoid the errors which were made by pioneers. One of such countries is Czechia.

In 1995 some corrections were introduced to the Penal Code of Czechia which admit the application of public works as a measure of punishment. These corrections became operable in January 1996. First, public works may be applied only in those criminal cases where the sentence of incarceration does not exceed five years. The judge giving a verdict of public works must pay attention to the character of the crime and the person of the law-breaker; he also must have reasons to suppose that the aim of the punishment can be achieved without incarceration. It is supposed that public works is a real alternative to incarceration and not to other alternative measures of punishment.

A person sentenced to public works must fulfil them gratis for the good of the society; the term varies between 50 and 400 hours, and all the hours must be worked during one year since the day of the verdict. The court has the right to sentence the law-breaker to additional restrictions. If the law-breaker does not lead a normal way of life or violates the restrictions imposed by the court, then the court may replace the alternative punishment or its remaining part with incarceration. The exchange rate is one day in prison for two hours of work.

A new variant of reconciliation of a wrong-doer with his victim has been introduced for the cases when the incarceration does not exceed five years. The accused must confess guilty and pay a certain compensation for public needs. The reconciliation is considered achieved if both the wrong-doer and the victim agree with the decision.

In order to realize these new sanctions the probation service was formed. The first probation officers got a special preparation and were appointed in January 1996.

Another attempt to implement non-prison sanctions was made in Zimbabwe. It was introduced in 1992 as a reaction to a fast growing number of the incarcerated. 60% of the incarcerated did the term up to three months, i.e. they were petty law-breakers. To keep such a number of convicts was a heavy load on the state budget: in 1980 the total expenditure for prisons was 1.2 million dollars, and in 1994 it reached 10.8 million dollars.

The National Committee on public works headed by one of the members of the Supreme Court was organized, and necessary laws were adopted. The National Committee contacted Penal Reform International (PRI) and with PRI’s help got some financing for their experimental programme from the Council of Europe. From the beginning of the programme to August 1996 about 12,000 verdicts for non-prison punishment were issued with respect to those law-breakers who could otherwise get up to one year of incarceration.

The public works consist in working in social welfare organizations. The punishment appeared to be efficient: only 6% committed crimes. The punishment appeared to be cheap: the expenditures for one month per head were between 10 and 20 dollars, whereas the incarceration cost $56. The number of the incarcerated steadily growing in the past stabilized, in spite of the growth of crime and unemployment. When the financing from the Council of Europe terminates, the government of Zimbabwe intends to pay the expenditures itself, support and extend the programme. At present the Council of Europe finances similar projects in other four African countries – Uganda, Kenya, Malawi and Zambia – and plans to extend the experiment in five more countries.



The experience of Czechia and Zimbabwe deserve good marks. Maybe, these countries will show the way to other countries where the non-prison punishments are like poor relatives in the situation when the prison population is steadily growing and the public disregards any punishment except incarceration.

Certainly, alternative punishments will never have the image of a prison but they have, instead, attractive aspects. Compensation to the victim as a response to crime is as ancient as revenge. John Bratwait, an Australian criminalist, has developed a new concept: disgrace, ‘a reintegrative disgrace’, according to his terminology. This is such a form of disgrace that reintegrates the law-breaker, i.e. forces the law-breaker to strive to be received back by the society, which he damaged. According to Bratwait, the sanctions will have a greater effect if they follow not from ‘a remote judicial body’, but from those who are close to the law-breaker. Several groups try to develop this idea to such a form that it could become a part of the judicial system. Step by step this idea is realized. In New Zealand, for example, minors from 14 to 17 are tried by special courts for minors. At a first glance it seems to be the usual scheme with the remote antagonistic judicial agency, but when establishing the guilt another model, ‘a family group meeting’, is used. This meeting is called by a state official from the department of social welfare, who is the chairperson at the meeting, but a large group of interested persons participates in the meeting as well. First, the accused must be present and members of his family. The family can ask the aid of a ‘lawyer in questions of minors’ and maybe some other persons whom they consider useful to be present. Friends of the suspect, witnesses, police officer, as well as a welfare worker may be present at the meeting, but a judge must be absent. All in all 6 to 12 persons are present, although their number may reach 20.

The purpose of this meeting is to work out a unanimous decision which could satisfy the wrong-doer, his victim and the police officer. If the meeting cannot achieve a unanimous decision, then the question is passed to the court. However, as a rule, the meeting makes a plan which consists in bringing excuses to the victim, some restitution to the victim in the form of money of services, some works directed at the public good, some restrictions on the recreations or contacts with those friends who are considered to exert bad influence. The plan is passed to the court and the court delays the case by several months. If by the time of the trial the plan was successfully carried out, the case is terminated.

This approach is promising and we hope that it will also take its toll from the ugly system of punishments inherited by Europe from the 18 thcentury

Alternatives to prisons: reflections and experience

(Continuation from the previous issue)

Some restrictions on the personal freedom and deprivation of some rights can be used as alternative punishments. Such measures are implied as arrest of the passport to prevent leaving the country, prohibition of visiting certain places, for example, the place where the law-breaker had harassed the victim, the demand to stay at home at night at certain hours or, at last, the domestic arrest. The demand to stay at home in the evening and at night prevents the wrong-doers to drink alcohol in public places and thus diminishes the probability of anti-social behavior. On the other hand, too stringent restrictions of personal freedom for one member of the family may cause problems for other members, and the frictions between the wrong-doer and other members of the family may be increased by the fact that the wrong-doer must spend too much time at home.

At last, there are opportunities to use a wrong-doer for socially useful work. The number of the countries that force wrong-doers to do socially useful work grows steadily. In this way wrong-doers recompense the damage to the entire society and not to separate victims. One must bear in mind that the convention of the International Labor Organization on preventing slave work must be obeyed, so the socially useful work must be a free choice of a wrong-doer. Law-breakers may begin their socially useful work immediately after the verdict or as an alternative to the remaining term of incarceration.

The work mentioned is usually organized in state bodies or offices. Managers of these offices bear full responsibility for making the work of law-breakers efficient and safe. This work may be connected with cleaning territory, looking after children, elderly and handicapped people, doing constructive or restoration works, serving in hospitals, and so on. In some countries there are additional rules that socially useful work must include at least some proportion of physical load to increase the ‘punitive’ aspect of the sanction.

The work executed by wrong-doers may become beneficial for the latter; many of them establish good relations with state officials who supervise them. It happens so that the wrong-doers never had the opportunity to do anything socially useful. Some of them acquire habit of work and begin to value their skills.

According to the comments to the Tokyo rules:

‘The work given to a wrong-doer must be meaningful and useful, and not just wasting time; it must maximally support the habit of work and develop skills’.

When the level of unemployment is high, some representatives of the public express protest when seeing law-breaker doing some work, since they believe that the government should pay for such work to the unemployed. In such cases convincing explanations must be given to the public. It was found that the places for such work should be selected carefully, because in many communities such public work is considered degrading. Most systems of punishment based on forcing wrong-doers to execute useful work avoids sending wrong-doers to private employers. Systems created for forcing wrong-doers to work and for oversight of them are very different in various countries. In some countries the decisions whether a wrong-doer is permitted to be punished in this way is the competence of probation officers.

In England and Wales there exist a sanction called ‘a combined order’. These combined orders were first introduced in the law ‘On criminal justice’ of 1991. The combined order may be issued with respect to a law-breaker aged 16 and more. It means that socially useful work must be combined with an order to direct the law-breaker to probation. This means that the law-breaker must complete the given number of hours of socially useful work under the survey of the probation officer; besides, the law-breaker must obey any demands, which the probation officer thinks necessary.

Court practices

Just a little mistake

A Nikolay Velichko from Velykiy Burluk (a district center in Kharkov region) phoned to Kharkov human rights protection Group and asked to release his son Oleg who was arrested by militiamen from Velykiy Burluk precinct for deserting his military unit in Alupka (Article 240a of the Penal Code of Ukraine)… seven years ago. Father said that this is a misunderstanding because his military book shows that he finished the military service. I asked father to bring the documents and phoned to lieutenant colonel Kostenko from Kharkov region recruiting committee, with whom we had had multiple contacts concerning deserters. Kostenko checked the necessary file and said that it was a kind of misunderstanding. Really, in 1991 Oleg Velichko deserted from his unit because of ‘dedovshchina’, but father immediately brought him to the commandant’s office, Oleg was transferred to another unit where he finished his service and was demobbed in 1993. Somehow nobody informed the first unit about the transfer, and the unit finally started the search. From Velykiy Burluk precinct I learned that the arrested Oleg was expecting the convoy for bringing him to Yalta preliminary prison.

I attempted to take the guy from behind the bars. Kostenko at once explained to me that to clear up the understanding is beyond his competence. The militia chief from Velykiy Burluk said that it was certainly a misunderstanding, but he had no right to disobey the order from Yalta. Yalta answered between the teeth that they had the order to find Velichko and they fulfilled the order. They disregarded my explanations and advised to contact the prosecutor of Simferopol garrison, who had given the warrant. The prosecutor appeared to be incommunicado.

The strategy was clear: to stop this irresponsible affair by a phone from the top. Through a chain of acquaintances I contacted big brass from the main martial prosecutor’s office. They phoned to Kharkov and asked to solve the problem. The case was handed to lieutenant colonel Sereda. The latter was polite, he confessed that a mistake had been made, but he had no right to release Oleg Velichko, it could be done only after receiving a teletype from the Crimea. But the Crimea was silent. The lieutenant colonel again phoned to the Crimea and to Kharkov region Directorate of Interior. All in all many people were contacted and all understood that a misunderstanding had happened. But nobody had enough competence to release the guy. In a couple of days the Crimea responded at last, and Oleg Velichko was released.

This is a very brief account of a long and cumbersome case. It testifies that the Soviet system is practically intact: to arrest one is easy, but to release is next to impossible. If I could not contact the top Kyivan brass, Oleg would be taken to Kharkov preliminary prison, where he would hang about a couple of months before the transfer to Yalta, and who knows how would finish the trial.

And today another father of another deserter has phoned.

P.S. All names of officials have been changed.


A new Commissioner in Ukraine

The Cabinet of Ministers of Ukraine appointed Volodymir Kostiantynovych Zabigaylo to the position of the Commissioner in charge of observance of the Convention about human rights and liberties protection. The President of Ukraine issued the edict to create the corresponding structure of 17 persons in the framework of the Ministry of Justice. The created institution will also maintain in Ukraine the analysis of cases accepted by the European Court in Strasbourg and will represent the state in court trials there.

Our informant

Conference of ‘Memorial’ International

On 17-19 December in the suburbs of Moscow the 5 thconference of ‘Memorial’ International was held. More than 100 delegates representing 85 regional organizations took part in the conference, including 13 representatives of Ukraine (from Kyiv, Kharkov, Lviv, Odessa, Lugansk, Donetsk, Dnepropetrovsk, Nikolaev, Mariupol and Aleksandria). A large exhibition was organized showing the work of ‘Memorial’. All in all, there were more than 20 stands, among them two about the work of Lviv and Lugansk branches. New publications were distributed. The WEB-page of ‘Memorial’ Moscow branch was demonstrated to participants. The page contained a great quantity of data on all directions of the society’s work: historical, charitable and human rights protecting. Now Moscow members possess their own server and process the enormous body of information. Some other branches also have got WEB-pages, for example, the branches from Krasnoyarsk, Irkutsk, Riazan. Unfortunately, Ukrainian organizations looked much more modest: most of them have not a single computer, to say nothing of e-mail or access to the Internet.

During the conference the old directorate reported on their activity for four years. The new statutes of the Russian and International ‘Memorial’ were adopted and the new directorate was elected. Now the charity activity will be excluded, since charity organizations have to be registered according to different laws. The activity in future will be focused at historical and human rights protecting directions.

The new directorate of ‘Memorial’ International is increased from 15 to 17 persons. 11 persons from the old directorate retained their positions, including the only ‘foreigner’ Evgen Zakharov. In the new directorate two more ‘foreigners’ appeared: Aleksandr Bukalov from Donetsk and Ruta Ozolinia from Riga. The Russian part of the directorate consists of eight Muscovites and six representatives of provincial regions: two from St. Petersburg and one from each of the following regions, Riazan, Perm, Ekaterinburg and Voronezh. The 15 thmember from Russia is the chairman of Russian ‘Memorial’, a well-known human rights protector, Sergey Kovaliov.

The meeting was very friendly, because once close friends and confederates now live in different countries and meet mostly at such conferences. The ‘Memorial’ brotherhood is lasting! The participants planned some important international projects, in particular, creating the museum of victims of political repressions in the former political colony 36 in Kuchino (Perm region), development by common efforts of ‘Memorial’ sites and improving the circulation of needed information through e-mail. A special commission has been created, whose target is the historical and legal assessment of national liberating and other anti-Soviet movements on the territory of the former USSR. Ukraine is represented in the commission by Vasyl Ovsienko from Kyiv and Inna Fedushchak from Lviv.

Our informant

Conference on teaching human rights (a participant’s notes)

The conference ‘Teaching human rights: Bielorussian and Ukrainian experience’ was held in Kyiv on 13 – 14 November by Ukrainian and Bielorussian branches of the International Society for human rights. The conference was held in the building of Kyivan region administration and was sponsored by the international fund ‘Vidrodzhennia’.

In the beginning of the conference the participants were greeted by representatives of such solid establishments as the Cabinet of Ministers of Ukraine, the Committee of the Supreme Rada of Ukraine on Science and Education, the administration of the President of Ukraine, the Ministry of Education of Ukraine, the Embassy of Bielorus in Ukraine, the Ukrainian Center of information and documentation of the Council of Europe. All these speakers promised cooperation and support to teaching human rights.

The agenda of the conference was very broad (perhaps, too broad for one conference). It included, except conceptual questions, teaching human rights in pre-school establishments, elementary, secondary and high schools; popularization of ideas of human rights protection in mass media; a special course on rights of the children.

The organization of the conference was immaculate. Everyone could get acquainted with the preprints. Nonetheless, I was partly disappointed with the results, and here I want to explain my reaction.

Certainly, when applied to junior schoolchildren, the term ‘legal education’ can be used at a stretch, since here we deal with ethical upbringing, on which foundation the legal education in the proper sense will be carried out much later. On the other hand, teaching human rights in higher lawyer schools will substantially differ from that in the secondary schools.

I believe that for the future of our country and our civil society two problems are the most fundamental:
•  Efficient civil upbringing and legal education in the high school;
•  Efficient enlightenment programmes on human rights in mass media.

I have come to the conference hoping to learn how to make every lesson on human rights protection at school an event in the life of schoolchildren, how to make them understand the dignity and freedom of a human person, how to heal them from slavish passivity, how to seed the moral resistance to every injustice. But all these important problems were mentioned in passing, with the stress on academic questions. With awe I saw the contours of a new indoctrination discipline which will make children yawn.

A pleasant exception was made in bright reports by N.Kusaykina from Kharkov and V.Dubrovskiy from Sebastopol. If the number of such participants were larger, a fruitful discussion would start, but there was no discussion.

The majority of reports from Bielorus expressed the complete satisfaction with what had been done in their country. They complimented each other and praised the state system of teaching human rights to children, which is supported by President Lukashenko himself.

For myself, I have drawn the following conclusions:
•  The situation with teaching human rights in Bielorus and Ukraine is rather unsatisfactory, especially if to compare it with the similar situation, say, in Poland;
•  Any concrete achievement in this field must be marked and supported; in Ukraine an undoubtful achievement is, for example, competitions of children essays on human rights held every year;
•  We need not pseudoscientific conferences, but practical seminars of teachers, journalists and human rights protection activists, similar to those that were held in Kharkov and Donetsk.

I am sure that there are many gifted teachers who can make a great contribution to the civil upbringing of our children. They must be put in contact with each other and with their colleagues from other countries. The Kharkov Group for human rights protection intends to publish a new bulletin ‘Prava ludyny: Navchannia I vyhovannia’ (‘Human rights: education and upbringing’). I hope that this bulletin will improve the situation.

We invite all interested sides to cooperate.

How Ukraine fulfils her obligations to the Council of Europe (the draft of PACE resolution)

Tunne Kellam, Hanne Severinsen, CE experts
•  The Parliamentary Assembly of the Council of Europe notes that after joining the Council of Europe on 9 November 1995 Ukraine, as a member-country, fulfilled some obligations mentioned in Conclusion 199 (1995). Nonetheless, the Assembly is profoundly worried that Ukraine is lagging behind with execution of other obligations.
•  The Assembly acknowledges that
•  Ukraine has regulated international conflicts in a peaceful way and avoided large-scale social unrest and civil war;
•  The new Constitution was adopted within one year from the time of joining the Council of Europe;
•  Ukraine undersigned several conventions of the Council of Europe, in particular, the European Convention about human rights and Protocols 1, 2, 4, 7 and 11 to this Convention, as well as the European Convention on torture, inhumane and degrading treatment and punishment, the Framework Convention on national minorities, the European Charter of local self-administration.
•  However, bearing in mind the report of the Committee for observing the fulfillment of obligations by state members, the Assembly ascertains that, unfortunately, during the transition period from a totalitarian to a democratic state, Ukraine has not achieved distinct delimitation between the judicial, legislative and executive branches of power. The executive branch continues to control other branches and attempts to gain political power, sometimes illegally, which can negatively affect the future Presidential election of October 1999.
•  The Ukrainian power bodies have to do much in order to guarantee the principle of superiority of the right. The statement can be illustrated by facts when resolutions of the Constitutional and Supreme Courts are not obeyed, when corruption and crime steadily grows, when servicemen of the Ministry of Interior are used for private purposes.
•  The legislation process is too slow and only a few of legislative acts listed in Conclusion 190 have been adopted. The Supreme Rada of Ukraine has started to consider the new Civil and Penal Codes only recently. No progress is observed in reforming the judicial system and prosecutor’s office, which must be the top-priority task for shortening the transition period mentioned in the Constitution.
•  The transfer of the penitentiary system to the Ministry of Justice is carried out with a great delay.
•  The laws about local self-rule must be adopted without further delay according to the corresponding European Charter; the rights and obligations of the state administration and elected local self-rule bodies must be distinctly delimitated. The new status of Kyiv and Sebastopol must be adopted according to the same Charter.
•  The Constitution of the Autonomous Crimean Republic must be adopted as soon as possible in order to stabilize the relations between the state power of Ukraine and the local power of the Crimea.
•  Ukraine has openly ignored her obligations concerning the death penalty (according to official sources from 9 November 1995 to 11 March 1997 212 persons were executed). The Supreme Rada of Ukraine must regard the ratification of Protocol 6 to the European Convention of human rights as a top-priority task.
•  All facts of torture and degrading treatment of detained persons must become objects of meticulous investigation, and the activity of militia must be rigidly controlled by independent institutions and court bodies.
•  State-controlled mass media must follow a neutral and independent editorial policy; if opposition mass media are persecuted in court, then this persecution must be carried out according to a clearly defined procedure and without stopping the activity of the mass media before the verdict.
•  The procedure of appeals to cancel the results of election must be simplified; the terms of accepting the claim and the duration of the investigation must be stated.

•  The Assembly believes that state agencies of Ukraine, including the Supreme Rada, are largely responsible for the insufficient fulfillment of the obligations taken by Ukraine while joining the Council of Europe, in particular:
•  the framework document on Ukrainian policy on human rights protection;
•  the framework document on the judicial and court reforms;
•  creation of new Penal and Penal-Procedural Codes;
•  creation of new Civil and Civil-Procedural Codes;
•  adoption of a new law on political parties.

Besides, Ukraine promised to abolish the death penalty; the term has expired, but Protocol 6 has not been ratified. Besides, Ukraine has not fulfilled her obligation to ratify the European Charter on regional languages and languages of minorities.
•  As a result of the above analysis, the Assembly takes the resolution that if all the above-listed obligations are not fulfilled to the Parliamentary Assembly session in June 1999, then:
•  The Assembly will start the process of canceling the rights of the Ukrainian Parliamentary delegation according to Rule 6 of the procedure;
•  The Assembly will recommend the Committee of Ministers to start the procedure of suspending the rights of Ukraine to be represented, according to Article 8 of the Statute of the Council of Europe.
•  The Assembly adopts the decision to pass this resolution to the European parliament, European OSCE Commission, European Bank of Reconstruction and Development, World Bank and International Currency Fund with the proposition to take into account this document in the process of their cooperation with Ukraine.

Deported peoples

Notes on Solzhenitsyn

On 11 December Aleksandr Solzhenitsyn had his 80 thbirthday. Nobody influenced the public opinion of the 60s-80s like Solzhenitsyn. The gift of a prophet, hate of the state violence, attention to the life of the Russian people, immense literary talent - all these features put Solzhenitsyn in the rank of the classics of Russian literature. The time will come when our epoch will be called that of Sakharov and Solzhenitsyn. In order to celebrate the writer’s jubilee we publish Larisa Bogoraz’s personal remembrances on Solzhenitsyn. This is the first publication of the notes.

Editorial board of PL


‘We live without feeling the country beneath us,

Our speech at ten paces inaudible.’

This diagnosis made by Osip Mandelshtam of the state of our society in early 30s remained valid up to early sixties. It would be untrue to say that the people did not know all this time about what was happening in their country: about famines, concentration camps, mass executions on the Vorkuta and the Kolyma. Pack of lies! Half the country went to the concentration camps. The terror concerned almost every family. By the beginning of the 60s the children grew up of those who had been killed, who had been rotten or who were lucky to survive in deadly camps, colonies and exiles in order to return to the big concentration camp of the country. Khrushchov’s report on the ‘cult of personality’ was already widely distributed and, actually, did not become a source of unexpected information.

But people behaved as if they did not feel country beneath them, the country looked numb and petrified.

In spite of Khrushchov’s report some topics were discussed only in whispers, ‘inaudible at ten paces’. Was it a habit? Or — rather — inertia of fear? This chorus of whispers went on up to 1962 when everyone heard a loud distinct voice, without any subterfuges, from the pages of the most prestigious ‘Noviy mir’. This was the voice of Ivan Denisovich, or maybe Aleksandr Isaevich Solzhenitsyn, or maybe Aleksandr Trifonovich Tvardovskiy, the editor-in-chief of ‘Noviy mir’. Rather the former entrusted to speak on behalf the other two. A little later Matriona spoke by the mouth of them. At last all heard the voice of the country. This happened because Solzhenitsyn pushed out the gag from his mouth and spoke from behalf of the multimillion people in rough, rude and half-suffocated voice. This event meant the beginning of the ability to speak.

The next step was made by Solzhenitsyn too in 1967 at the congress of Soviet writers. The congress continued in the usual routine way, but Solzhenitsyn managed to stir up this routine. He said what was secretly thought of almost by every writer: censorship shall be cancelled.

This idea seems obvious, even banal, but only Solzhenitsyn dared to say this banality, and it broke the dam.

‘Then Word stopped the sun and broke town walls’ (Nikolay Gumilev). When Solzhenitsyn said his Word, thousands of pensioners set at their typewriters and started to multiply Solzhenitsyn’s words. And he appealed: ‘Do not live in lies’, ‘A village cannot stand without a righteous…’.


Certainly, I was eager to meet Solzhenitsyn, to listen to his speeches. It rumored that he was writing (or even had finished) a new book which would be published in samizdatby the autumn. Literally all spoke about this secret. I wanted to meet the author and to ask him about the book.

By the spring of 1968 Solzhenitsyn rather frequently met with his readers at some establishments. I heard from my friends who were lucky to be present at such meetings, but myself I did not manage to come to such a meeting. People said that small halls were usually overcrowded.

One day my friend Maya Ulanovskaya, a librarian, said that Solzhenitsyn had to meet with his readers in their library, and if I came, she would take me to the hall. I certainly did come. At the entrance of the library a crowd was waiting for the writer. The writer did not come. The rumor explained that somehow the meeting was cancelled ‘at the top’. Nobody was surprised, it was clear that they at the top did not like such meetings. They said that such meetings were cancelled rather frequently.

Suddenly, in May, I was informed that Solzhenitsyn wanted to meet with Pavel Litvinov and myself. They added that Solzhenitsyn himself would appoint the place and the time of the meeting.

Some time later Solzhenitsyn’s invitation was passed to me to come to Pavel’s parents’ place at such and such time. At the appointed time we came to the appointed place. I do not remember whether Solzhenitsyn had been already there or he came after us. I do not remember the process of introduction because I was struck by Solzhenitsyn’s appearance: this was the strongest impression that ousted from my memory all other impressions. He had bright, I even can say scintillating blue eyes, irradiating energy. This energy resembled me a ball lightning (twice in my life, in childhood, I saw a ball lightning falling at two paces from me, and I remember a rolling clot of electricity: it was extraordinary and terrifying).

Some time later when we were sitting at table and Flora (Pavel’s mother) put plates with delicatessen on the table, another visitor joined us (perhaps, he had been invited too beforehand). It was Ivan Yahimovich, the chairman of a Latvian kolkhoz. Ivan had brightly blue eyes, but not scintillating but slightly opaque. Real blue eyes are seldom and there at one table there were two pairs.

The conversation with Solzhenitsyn started before Yahimovich’s arrival, and the ball of the conversation was surely spun by Solzhenitsyn. The first what he said (looking at Pavel) that he was glad that we were robust. It was true relative to Pavel; I at that time was 39-year-old and healthy, but hardly could be called robust. Solzhenitsyn had read our ‘Address to the world public’ and imagined us to be meager egg-heads. Perhaps he was willing to meet us because of this address. Then he showed to us a strip of paper and said that this text about us would be put to a book of his. In these lines he said that two persons broke the play set by the powers — the January trial of Galanskov, Ginzburg, Dobrovolskiy and Lashkova. The authorities were sure that the play would be successful, it was important for them after the trial of Siniavskiy and Daniel. However they lost, they lost because of two egg-heads. I do not remember the text verbatim, maybe the word ‘egg-heads’ was not used, the text was simple and somewhat more solemn than in my rendering. ]

I asked Solzhenitsyn if he read Anatoliy Marchenko’s book ‘My testimony’, which then circulated in samizdat. He said he read it, but in his opinion the author distorted the prison reality. He could not imagine convicts to behave so independently, who even debated political topics with the prison administration. Marchenko told about hunger strikes of convicts — Solzhenitsyn thought that it was a stupid way to defend rights, because the prison administration did not care a pin, it was only the way for convicts to loose the remnants of their health. A strike is much better than a hunger strike!

‘How do you think, is it possible to convince intellectuals to go on strike?’ — ‘Certainly not, Aleksandr Isaevich’ — ‘That is a pity’.

If my memory does not fail, Solzhenitsyn did not approve Marchenko, because he handed his manuscript to ‘Noviy mir’. He decided that Marchenko wanted to distribute his book through the magazine. It will put the magazine in danger, he said. I tried to explain that Anatoliy did not hand his manuscript to ‘Noviy mir’, it was done by somebody else. I do not know whether Solzhenitsyn believed me.

In the conversation I made a shameful blunder for which I cannot pardon myself until now. I asked Solzhenitsyn if his book ‘In the first round’ has a continuation (so people spoke then on the ‘GULAG archipelago’) and may I read it? Solzhenitsyn literally hissed at me, putting a finger to his lips: ‘Hush-sh’. I do not know whether Solzhenitsyn remembers this meeting.

I will finish the portrait with one detail. In 1997 when I with my sons went to Strasbourg to accept from the European Parliament the premium ‘To a fighter for freedom of speech’, with which Anatoliy Marchenko was awarded posthumously, Aleksandr Ginzburg passed me a sum of money (to my shame I do not remember how much). Ginzburg said: ‘Solzhenitsyn and his wife have sent this money to you, Marchenko’s widow’. Thus was allowance from the Solzhenitsyn’s fund, one of many handed to different people.

“Prava Ludiny” (human rights) monthly bulletin, 1999, #01