“Prava Ludiny” (human rights) monthly bulletin, 1999, #11

The first round of the election in Svatovo district of the Lugansk oblast finished by the defeat of Kuchma. Out of 28596 only 7031 voted for him while 16285 voted for Simonenko. For other leftish candidates voted 3000 more.

The unprecedented pressure on the voters followed. The head of the district administration, Mr. Prosin, declared that he would retire. Nonetheless, no official steps followed, he continued to occupy his office and moved around in his service car. It was to his office that heads of industrial and agricultural firms were summoned and given concrete tasks. The latter heads summoned smaller heads and stated the tasks. At the end of this pyramid the small fry promised to vote for the President. One of the workers of agricultural technical service tried to hide the form which made him to keep this promise, but he was caught and brought to the local militia precinct. The people’s deputy Donchenko had to interfere to liberate the fighter for justice from the accusation of hooliganism.

In Nizhniaya Duvanka the head of local agricultural firm warned a woman that she would be sacked in no time if she did not vote for Kuchma. He demanded her to vote not in the special cabin, but in the controllable place.

14 November, on the day of the second voting all the little bosses came to the voting stations to control the process. The result was successful: about 12 thousand voters supported Kuchma. The complete change of electors’ sympathies during two weeks! Does such election confirm democratic transformations in Ukraine?

One more aspect of the situation. While preparing to the election our organization cooperated with the OSCE mission in the Lugansk oblast. We passed them all the information about commissions in the oblast and about voting districts. On 14 November I wanted to share some information with the OSCE together with the list of people prepared to write down the applications on the violations of the electing procedure. Alas, from 12:00 to 21:00 hours it appeared impossible to contact the OSCE mission. It seemed that any critical information was not needed by the OSCE. Their mission seems to be to witness the correct democratic procedure in the election.

Your efforts appeared to be successful, ladies and gentlemen.

Newsman: I hope you have voted for the future?

Man leaving the voting station: I have voted for yesterday.

N.: But you have made another choice!

M.: Certainly, I could vote for the day before yesterday.

From an interview near the voting station, 14 November 1999 about 16:00



When Prime-Minister Pustovoytenko detained directors of enterprises in the palace ‘Ukraine’ for their debts to the pension fund, I discussed the event with a younger colleague, as well as general ways of leaving the bog in which my native country stays. My colleague expressed hopes that the new generation of leaders would get the Western education and would not apply such barbaric measures. I retorted that our country would grind any reformers or drive them to the countries more convenient for civilized life. I am still sure that no Western education will save our political and economic system based on fear and suppression, since such a system is incapable to any amendments in the modern world. But this is exactly the system that develops and ripens in our country. This was vividly demonstrated by the last election campaign. The ‘correct choice’ was insistently and brutally imposed on voters. L. Kuchma’s team distorted the election to such a degree that it did not generate any emotions except aversion and shame. Many employees had to give the obligation in writing to vote for Kuchma, medical doctors had to promise to guarantee the number of votes for Kuchma equal to the number of beds in their hospital. It is senseless to mention weaker violations, like the difficulties for Kuchma’s rivals to speak on electronic mass media. The people, who tell about similar violations in whispers, do not want to denounce them publicly, since they are afraid to loose their jobs.

Certainly it is good that the communist candidate lost the campaign, but we cannot agree with the statement that Ukraine said a final goodbye to communism. The methods implied in the election campaign were communist, although the political words were combined in the other way. People are helpless and dependent on the state machine, and those, who try to be economically independent of the state, encounter administrative dictatorship. It is impossible to do profitable business and observe the existing laws. That is why in this sphere everybody is vulnerable. On the other hand, is the advantage of Kuchma so great that it enables his supporters to cry on the convincing victory? And how many people voted for Kuchma against their best judgement, because they were afraid of the victory of communists? I think that about one quarter of voters.

And what can be said about other political forces? The election has shown that actually there is no opposition in Ukraine. The leftish opposition has in fact no platform: their propaganda was pure populism without constructive elements. The right opposition is too weak now and is unable to counteract anything to administrative pressure. The weakness of the opposition provokes the winners to declare that we do not need any opposition. The authorities again threaten the Supreme Rada which seems to be in the way of the ‘reforms’. But we need not unity, but the freedom of discussions, supposing that the style of the polemics is more important than its subject.

Some days ago a TV journalist spoke on the national channel about Kuchma’s victory as the victory of democracy. In two minutes Kuchma himself in his interview confessed that he appointed Marchuk to break ‘some bones’. Such a democracy has a suitable term: totalitarian democracy. To prevent our country to fall into the precipice of such a ‘democracy’ we all must soberly evaluate our today’s position, to look at ourselves, at our public organizations, at our political parties, at our power. We must see that we amply deserve what we have. We must cooperate with state bodies wherever it is reasonable and learn to negate all the attempts to restrict our moderate freedom. We must not be afraid of the future, even if it is magnificent.

The title of my report may provoke ungrounded hopes of the audience. So, I want to point out that I am going to consider in my report only philosophical aspects of Constitution with the stress on the difficulty of definition what ‘the modern context’ is. It is obvious that after three years that passed since the adoption of the Ukrainian Constitution, one may say only about the degree of the agreement of the Constitution to emotional civil expectations. To put it simply, if a Constitution has a normative vector, then in the course of practical application a successful or an unsuccessful direction of it is felt rather soon. If the Ukrainian society evolves constructively or destructively, then, theoretically, it is possible to compare the dynamics with the Constitutional vector. Such a comparison could be the basis of the given report.

However, the problem arises at an earlier stage, since the goals of the society under democratic conditions are chosen and realized spontaneously, on the basis of numerous badly predictable factors, while the Constitution is usually compiled from normative fixed values, described in the terms of non-metaphoric language. The traditional understanding is that spontaneity must be ensured by the Constitutional category of freedom, but this main guarantor of the social dynamics of a democratic society in the Ukrainian Constitution is absent. The attempt of the International Constitutional Forum in Nova Huta in winter of 1996 to introduce not an instrumental concept but namely a category of freedom into the official draft of the Constitution was deliberately rejected by the national quasi-scientific community. Instead plenty of clumsy and, hence, little applicable norms were permitted to enter the Constitution. From the standpoint of the philosophy of right this can be described as aversion to the liberal scheme of the rightful regulation suggested by D.Rolls: to fix in Constitutions the highest value and guarantees of freedom, whereas tactical, including economic and distributive principles and rights, should be placed in the current legislation.

I shall offer only a few examples of the unsuccessful, from my point of view, national Constitutional regulation:

The life and health of a citizen are acknowledged as ‘the highest social value’ in Article 3 of the Constitution of Ukraine. Yet, if the state of the physical life is actually a top value, then the life of a soldier may not be sacrificed for ‘the protection of sovereignty and territorial integrity of Ukraine’ or the freedom of the nation. Indeed, in the Constitutional hierarchy of values sovereignty, territorial integrity are positioned below the ‘human life’ and the freedom of the nation is not mentioned at all. Moreover, the right for life (and the following risks) of a soldier may not be less than those of the civilian on the basis of the principle of equality of Constitutional rights recorded in Article 29 of the Constitution of Ukraine.

‘Any violence directed at a child… is prosecuted by law’ according to Article 53 of the Constitution. This statement makes criminals of all parents who make their children leave the sand-box contrary to the wish of children.

‘Everybody is obliged not to bring damage to nature’ declares Article 66 of the Constitution, but every driver by turning the ignition key violates this law.

Judges are directly called in the Constitution as bodies of the state power, which puts them in cases of civil claims versus state to the position of judges in their own case.

According to Article 15 of the Constitution, ‘no ideology may be acknowledged by the state as an obligatory one’, which formally dismisses the state from the necessity to follow the ideology of its own Constitution.

Everyone’s right ‘for a sufficient living standard for himself and his family’ recorded in Article 48 of the Constitution practically exists in Ukraine as the right for equal distribution. As an expression of the liberal principle of ‘inequality profitable to everybody’ (D.Roll’s), it does not work, since the political power in Ukraine behaves like a croupier in the national casino, who controls not the observance of the rules, but the gains of the players. The history of the disgraced prime-minister of Ukraine seems to me rather convincing in this sense.

Providing the economic and informational security are declared in Article 17 of the Constitution as a ‘state function’ and ‘the care of all Ukrainian people’. As a result, the society encounters only 15 Constitutional restrictions of the freedom of speech.

The above-stated illustrations I mention only in order to express the general tendencies of the Ukrainian Constitution.

If one agrees that flourishing of the society is caused by the work, creativity and innovations, then one must agree that the Constitution of Ukraine is not aimed at these activities. What prevails in the Constitution are protective values, so it lacks ‘collective imagination’ according to O.Toffler or ‘public risk’ according to U.Beck. That is why a feeling arises that the Ukrainian Basic Law, as some other Constitutions of post-totalitarian countries is written not within the modern paradigm. The Constitution is impregnated with rather moderate merits and it is didactic in its literary manner. The Constitutional design is oriented not to the social passionarity, but to a ‘granny-like careful government’. Meanwhile, the demands of the Ukrainian modern are practically the opposite. As J.Huizinga once noted, to hit the bull’s eye one must aim a little higher. In other words, the social-economic flourishing may not be achieved by the direct measures on the economic prosperity.

The social-economic flourishing of Ukraine, which we all strive to gain, presupposes, first of all, man’s creative behavior in the conditions of complete freedom guaranteed by democracy and an adequate legal system. Free creative activities cover a wide sphere in the modern society, from creating new scientific concepts to constructing fashions, intellectual and merely behavioral specimens. Separate cases of non-standard behavior are supposed to be included. Using the philosophical vocabulary of G. Bodriyard, one may say that in progressing societies we always have a domineering ‘helix of the symbolic, which precedes reality’. R.Barta characteristically notices that creative activities often appear as the economics of ‘frantic dissipation’, that is, paradoxically, as the contradiction to the ethics of hoarding.

It is worthwhile to point out the following. If, as Z.Brzerzinski wrote, debates about social organization of the society and the best ways of achieving the external prosperity domineered in the passing century, now we have started grand discussions about the personal and internal measurements of human life. That is why today new types of human behavior appear, followed by new types of personalities, new mavericks and new ideas of charisma. As A.Piatigorskiy shrewdly noted, we observe the advent of the error of gifted figures, remote from the temptation of the ‘national glory’. However, the advent of such personalities is possible only in the atmosphere of genuine unrestricted freedom.

Being raised in a wider context, the question of the social and economic progress demands not so much social-economic rights, as the rightful infrastructure of freedom, which presupposes a frightening convertibility of social values to goods, the rightful repression of xenophobia and competition of large-scale individual strategies. In the process the cultural space of any society inevitably points out the questions on the significance of the synthetic (hand-made) environment, style and concrete ideology of life not only of social groups, but of separate individuals. Besides, legal provisions for a social-economic progress are determined by other circumstances that among social creativity, democracy and right very complicated relations are shaping, due to their specific nature.

Unfortunately, in the post-totalitarian space ‘the strained individual solving his destiny’ (M.Mamardashvili) remains in some negligence from the side of philosophy of the Constitutional right. Meanwhile, the relations between technology and the live will of man have gone long ago beyond the limits of only political expression of social reality. If in the previous times ‘magic was the bridge connecting fantasy and technology’ (G.Ellule), then nowadays the struggle between the economic mega-machine, on the one hand, and the ideal sphere of human imagination, on the other hand, has become an unavoidable aspect of rightful relations about justice. Since this struggle is unavoidable, it needs an adequate judicial cell. Having got, comparatively recently, the ‘right for freedom’, the modern man needs another right — ‘the right for creativity’.

Although the general tendency of the philosophy of the right seems to be as indicated above, in modern post-totalitarian countries a contradiction between objective regularities of social-economic progress and rightful regulation of the creative sphere seems to be more noticeable. A redundant regulation of information processes (up to the state attempts to control the Internet) became almost common. At present in some such countries (as Russia and Ukraine) a massive body of laws on information has been created, which regards information not as an especially valuable ‘quantity of the unpredicted which is contained in the message’ (A.Moll), but as an especially important state resource. Although censorship formally does not exist in these countries, the increasing attempts to control information and filter its flows are very conspicuous.

It is obvious that these seemingly subjective attempts disguise a profound misunderstanding by leaders and experts of the processes guaranteeing the social-economic progress. Moreover, in the countries that have passed velvet revolutions the sporadic attempts of the ‘bureaucratic revenge’ are observed more and more often.

Since new ideas, cultural specimens, innovating types of professional and other behavior, unique psychological approaches to solving various problems are worked out by the creative minority, the picture of the world is transformed by a handful of primarily disconnected people, according to Ionescu. The fact that the progress is created by ‘a few convincing many’ (F.Hayek) demands Constitutional protection of ‘culturally sensitive zones of the society’. It is here where redundant normalization on the side of the state is especially dangerous, it is here that consequences of the ‘burden of democratic decisions’ is most painful. That is why I would like to single out the organic contradiction of the traditional legislation, serving as a tool of the state, and the resistance to the interference of the authorities and democracy in the creative sphere, since the new Constitutions, as it is illustrated by the Ukrainian one, often become obsolete at the very start, auxiliary legal tools could become an important stimulus of the social and economic progress. In this light the idea of the ‘International Convention of protection of intellectual freedoms’ could become quite fruitful.

One way or another, turning to the international public right or remaining in the framework of the national legal system, we must criticize the conventional unipolar structure of the legal regulation of creative processes in transitive type societies. From that standpoint any new Constitution is reasonable to regard not as apexes of conventional legal pyramids, but as a unique in their potential guarantor of the creative freedom and cultural diversity. In this capacity the regulating potential of Constitutions must be used, as to their capabilities to reproduce the ’artificial spontaneity’, of some synthetic reflection of the organic natural structure. Certainly, all features of rightful systems seem to be transformed from unipolar to bipolar ones, where on the pole of freedom of the civil society Constitutional tradition seems to be concentrated, whereas at the pole of state order we observe traditional legislative elements. Since from the very beginning it is next to impossible to counterbalance order and freedom in a social system, the bipolar rightful construction will provoke permanent conflicts of freedom and order, Constitutional courts will save civil freedom and all which follows. Of course, such a transformation will add troubles for Constitutional tribunals, but it will also introduce order into social dynamics and economic growth, for which the society must pay much all the same.

If the vector of the social and economic progress is determined by intellectual efforts of individuals, who create various specimens, models, styles and ways of thinking, behavioral examples and other intellectual temptations, then, by its direction, it substantially differs from the state policy constructed on the democratic vector. Usually after the new and promising intellectual specimens are created by innovators, they are exhibited for the social estimation and choice. As J.Bodriyard said, the world functions to the degree it is liable to intellectual seductions. New specimens and approaches are exhibited on the intellectual market, where demand and supply are determined by a great number of factors.

Perhaps, in the sphere where the seduction has not intellectual nature, there the attraction is done by the external, by the shell, by the surface. In the other realm, where the attraction is done by spiritual or intellectual factors, the seduction is done through the artificial, interior, invented, imagined. The seduction by the new of the latter kind is the stronger, the stronger receiving intelligence is. In this sense it is misguiding to speak about the will power in the cultural sense. Instead, it is more convenient to speak about the force of the cultural seduction and the force of an intelligence to perceive the new.

Since the vector of opinion of the masses is determined by the will of the majority even under liberal democracy, the democracy is unable to do anything but choose from what is made by the creative minority. However, in post-totalitarian countries even this scheme is not liked even by experts. On the contrary, they think about democracy as the only reason of the social and economic dynamics. This view is typical for such countries as Ukraine.

If to accept this point of view, then it becomes understandable why more advanced in liberal policies societies are so much interested in creating guarantees of non-interference into the creative sphere by not only state agents, but also by representatives of democracy. The main result of such precautions is the opportunity of permanent provision of the society by the information, understood as the quantity of unpredictable in a message. That is why the atmosphere is created and supported of accessibility of the new information, which must be estimated as the most important rightful guarantee of social and economic rights.

Speaking in a more special way, we must create or restore the system of achieving primary ‘pre-democratic’ decisions which would, later on, provide secondary ‘post-democratic’ decisions of the practical type. It is obvious that we speak not about reduction of democracy, but only of providing it with an efficient market of specimens for the future. The advantage of democracy is not creation, but selection. Democracy can choose from specimens already created. Certainly, the suggested system of relations somewhat contradicts to the customary functions of the state, such as guaranteeing social protection and order, political stability and even personal security. But if to ascribe higher priority to social and economic rights, we have not another choice. In all respects any state needs restriction; any power, even not too conservative, has a chronic will to regulate anything including science, for example. Besides, as ideologists of liberalism often reminde, in our times the state continues to be not only the umpire, but also the strongest player, who, for the sake of victory, changes the rules in the course of the game.

But it is clear, as C.Sontag said, the ‘innovators must have the right to step the bar’, because they have a duty ‘to seduce the traditional way of things by new events’. Thus, the social-economic progress must be defended from too predicted stability measures supported by special normative acts. S.Hantington believes in the third wave of democracy: as a way out of the system he sees the elaboration of the international ‘Convention on protection of intellectual freedom’. Certainly, the situation could be improved by some national ‘information constitution’.

The mental state of citizens of the former republics of the USSR (except the Baltic republics) may be confidently classified as a variety of the massive psychic anomaly, something like depressive syndrome that has come instead of the public maniacal psychosis. In the former times, being under the mania, the majority of Soviet citizens believed in a Great Leader and Teacher, as well as in the happy future and numerous spies and saboteurs, who were hopping around like fleas. The society needed about thirty years to begin to get rid of this mania, which reigned in the 20s – 40s, being replaced by a certain apathy. In this period the society looked like an infantile youth who is shown by grown-ups what to do, while the youth unwillingly follows their instructions and survives being helped by these adults. The perestroyka, the revolution from above, liberated the countries of the Central Europe, which were striving for freedom and independence, but it did not lead the citizens of the former USSR to civil ripeness. Our custom to respect paternalistic relations of the state to citizens has appeared rooted too deeply. The one-sided dependence ‘the state gives and the citizen gets’ prevents us to evaluate correctly the current processes.

The new states grow under extremely unfavorable psychological conditions. The will of the majority, concentrated and strained, is needed for realizing the national idea. A big proportion of citizens living in the post-Soviet space lack this will. We shall concentrate our attention on Russia, Belarus and especially Ukraine, since all former republics of Asia and Transcaucasia are developing according to their specific cultural peculiarities.

Having analyzed the situation in the three Slavic republics one can make a conclusion that the urge towards statesmanship (hypertrophied in Russia, very weak in Belarus and stable enough in Ukraine) does not help to solve the inner problems, since the citizens of these countries cannot define for themselves in which kind of state they would prefer to live. There is no stable state model, which would satisfy a critical nation forming majority. The absence of the internal consensus in the main directions of the state building have led these post-Soviet countries to the state of internal chaos and depression. As a result, the public life of these three countries is determined by several common factors:

Democratic revolutions in these countries smoothly transformed into criminal ones. The power was seized by clans of the former nomenclature that permanently redistribute property in their own interests.

There exists a permanent threat of returning communists to power since they are supported by an important proportion of the population feeling nostalgia to the past. This makes impossible any massive constructive opposition, since it will support the leftish one.

The civil society, being weak and disoriented, cherishes myths rather dangerous for the state existence. As a result, the society cannot elect, control and replace authorities, as well as protect their economic interests in a civilized manner.

The authorities have failed in the most reforms and attempts to preserve, partly or fully, the command-administrative regulation (as to the regulation, Belarus is leading, followed by Ukraine). As a result, we have the economic crisis, unemployment, poverty and a steady wish of about one third of the population to return to the communist past. The vicious circle is closing.

To break this circle is extremely difficult since the post-totalitarian countries are ruled by their myths, which, in their turn, shape psychological standards. Citizens of the former USSR have survived during 15 last years the global change of the psychology. Yet, in their essence, they have remained Soviet people, who got accustomed to a standard thinking and behavior. How is it possible to create a normal economy, if a great (may be a greater) part of the population has a firm belief that a rich man is a crook? Ukraine never had agricultural communes, the farmers conducted individual activities, so it would seem that Ukrainian peasantry was in the better psychological state and could develop like in the Baltic republics. However, it is true about West Ukraine and partly about Central Ukraine. The East industrial regions have quite different attitudes. These are thickly populated regions, which greatly determine results of elections. These regions give the majority of votes for communists, together with the Crimea, whose population is not sure about their Ukrainian identity.

Ukraine has proclaimed that it started market reforms, but enrichment is not encouraged here. The state uses the tax press to break the spine of the middle and small business, and the state is not resisted by the civil society. If a critical campaign is started against some politician, then it always suffices to declare that he is rich and, which almost needs no proof, that the riches are gained in a crooked way. But how can riches be earned in a fair way in a country where enormous taxes drove all business to the shadows? In the countries with the protestant ethics (this is mainly England, Canada, the USA) the riches are counted as a feature of diligence. In post-Soviet countries the riches are a symbol of crookedness.

This psychological anomaly smoothly passes to another myth that our leftish forces ‘stand for the people’. 30% in Russia and Ukraine voted for communists, and more than 50% of Belarus voted for the neo-communist Lukashenko. This communist revenge, that happened in Belarus, did not bring any good to the people except queues and suppression of dissident thought. The people of Belarus has not become rich and happy.

Ukraine, although it has better starting geopolitical, historical and economic conditions, is also in danger of the communist revenge. One reason is that the West of Ukraine hardly overbalance the capitalism-despising East. Another harmful idea is the universal disdain to politicians. Suspicion bred during decades makes honest and clever citizens to actively evade political activities. In the first year of building Ukraine mainly representatives of the democratic movement were elected to Sovietsof various levels, but nobody was able to influence the policy. Some of them left the political activities, others started to catch what they could. It was they who mainly discredited the democratic movement.

The state power does not fulfil its obligations towards citizens, and the citizens want to get rid of the civil servants during elections. What is most surprising, they cannot do it. Voters do not understand the mechanism through which they are fooled. Politicians adapt to voters; even bright personalities do not allow themselves original steps, varying only details (for example, N.Vitrenko promised to send bad bureaucrats to uranium mines, while A.Tkachenko promised to strip militia generals to lieutenants). The political elite has not changed for decades, and there are no prospects of coming changes.

Another psychological barrier on the road of state development is the attitude of citizens to their states.

In Russia the psychology of the citizens of a great state typical for masses leads the Russian political elite to meddling into the affairs of the formers Soviet republics. The consequence of this attitude is the Chechen war, the permanent desire to organize a union with any fragment of the former USSR. This attitude gives birth to instability and creates an impression that the Russian political elite is ready to postpone all important solutions until Russia reunites all other parts of the Soviet Union. Russia, being an immense country, which has not mastered her own resources, continues to grab the Kuril isles, continues the shameful war on the Caucasus, strives to join Sebastopol, ‘the town of the Russian fame’. At the same time the State Duma adopts the law on direct election of governors, thus destroying the executive vertical and putting a time mine into the foundation of the state. On the day of the default in August 1998 this mine almost exploded — some governors tried to introduce regional currencies. Thus, Russia is concentrated on preserving or expanding its territory. Before the invention of nuclear bombs the greatness of a country was mainly determined by the largeness of its territory. Now we know better: the most important factor is the stability and equal level of development of various regions. In this sense Russia is a very backward country.

The Belarus geopolitical paradigm seems to be quite different. The majority of the population has supported and seems to support joining Russia. Such two countries seemed to be doomed to be united. Yet, the politicians do not do any essential steps to be united economically. The economies of these two countries seem to be unblendable.

In Ukraine a brittle majority of the population wants to live in an autonomous European-type state. The instability of the situation is due to the fact that Ukraine is populated not by a single political nation. In the East we observe the tendencies rather similar with those in Belarus. Fortunately, the Chechen war and similar political adventures frighten those who would like to join Russia. Many citizens of the East Ukraine are nostalgic of the Soviet times. On the contrary, most citizens of Central and West Ukraine are firmly oriented to the construction of a European-type autonomous state, closely cooperating with the NATO, having the normal market economy, etc. However, many citizens here have a syndrome of a hyperstate. In order to realize nationalist ideas these people are ready to vote for those politicians, who propose to strengthen the state without explaining what kind of state it will be. These people are especially sensitive to the left revenge.

Side by side with Belarus, Russia and Ukraine, other brotherly Slavic countries actively develop. We especially mean Czechia and Poland. God know why, these positive examples are not followed by their Eastern neighbors.

We have a lot of difficulties, but they are created not by our authorities, but by ourselves.

Respected people do not peep into keyholes, they do not eavesdrop because they respect other people and hope that other people would not eavesdrop on them. They hope that the state would protect their privacy. This is an elementary form of civilized life. Article 131 of the operating Penal Code stipulates responsibility for the abuse of communication privacy.

Yet, the life is swiftly changing. During 3 – 5 recent years the electronic forms of communication have become very popular, but the electronic communication has one drawback: the message is not protected by an envelope and can be intercepted. The messages are intercepted, the most intimate scenes can be photographed, etc. This may be done not only by perverts, but by criminals who do it for criminal purposes.

It is obvious that our Penal Code is lagging behind the technical progress. That is why I suggest some statements to be included to the Code:

Illegal collection, accumulation and storage for publishing or distribution (or similar operations) of information about a person by means of new technologies are punished by a fine from 25 to 35 minimal wages, or corrective works up to 1 year, or the arrest up to 6 months.

The same actions carried out repeatedly, or if they brought especially heavy consequences, or concerned two or more persons, or by a person who committed other deliberate felonies, or the collection of information about sexual life are punished by incarceration for the term up to 3 years.

Such laws will improve the moral atmosphere of the society. Such atmosphere of the total tailing is unworthy of the dignity of Ukraine.

Nowadays about 60 million of TB cases is counted in the world; according to the official data 640 thousand of them are Ukrainian citizens. During last eight years the number of TB cases in Ukraine has grown by 72.5%. In other words, the number of the sick for 100 000 population has grown from 32 to 55. To compare, the corresponding number in Western Europe is 5 TB cases for 100 000. The mortality rate for TB cases in Ukraine has grown by 92.6%. So, in 1990 the number of those who died from TB was 4212, in 1998 — this number was 7850. This social disease reaps more victims than all other infectious and parasitic diseases rolled together. Paradoxically, during the same years Ukraine lost 20 TB dispensaries out of 185. About 16 thousand (44.2%) of stationery beds have been reduced, as well as 38 (27.9%) out of 136 sanatoriums. The total number of physicians specializing in TB who have been fired reached 1005. The number of those who remained is 2729.

The structure of the sick population is as follows: 40-50% are the poorest, 0.5-1.7% — beggars and tramps, 10-20% — former convicts, 20-50% — alcoholics and drug addicts, 5 – 20% — people without normal living accommodation.

‘Den’, No. 214, 19 November 1999

The present note is an attempt to systematically order values and landmarks about human rights and the national question.

In the end of the 20th century the mankind have appeared before a complicated knot of problems that have one root — the exhaustion of resources. Here by resources the reader should understand all that the humanity needs for life and development. In particular, health and capacity for work of the population, as well as the capacity of the biosphere to neutralize the harm per unit of time of a certain quantity of waste are considered to be resources. Now we are standing before the threat of the global resource catastrophe. In fact, we must solve the problem whether there is the threat of the global resource catastrophe, whether people will continue to live on our planet or will disappear in the darkness of history. The right of the humanity for survival dominates all other problems. In order to prevent the resource catastrophe we must continuously increase the rate of technical and scientific progress. Only the fast progress leads to a wider access of the mankind to the resources. That is why the implementation of new technologies is the necessary condition for the survival of man.

Nowadays not a single serious historian dares to negate the evolutionary character of the historic process. The growth of history, as a whole, is evolutionary. But such is the way of development of all subsystems, including three most important: industrial facilities, moral and psychic qualities of workers and productive relations.

It is known that the driving force of any evolution is the selection of the best features of the system which appear in the process of competition among independent subjects, carriers of the evolution. Therefore, the more competing units exist, and the more independent they are, the sharper is the competition and the faster the best qualities are selected and implemented.

Concerning the evolution of productive forces one may say that they would develop faster in a society having an infinite number of enterprises. The necessity of accelerating the evolution of technology causes, in the course of time, the increase of the number of enterprises and of the level of their independence from outer impacts.

However, technology as such is unable to work. Technology is an efficient tool when it is serviced by able and hard-working hands. Hence, the greater is the number of working people in the process of the competition and the greater is the level of their independence from each other, from the employer and from the state, the faster develops the active attitude to labor enabling the workmen to use successfully any complicated technology. That is why the observance of rights and freedoms of a personality means the best understanding of the use of the maximum freedom of individual for technological progress.

At the same time one must understand that the increase of the freedom of individual would not create the proper attitude to labor. In order to breed a highly moral toiler, as well as for increasing his level of freedom, we must constantly improve the productive relations. The subject of productive relations is the national state. Therefore, in order to accelerate the development of productive relations one needs to increase the number of independent states. That is why the right and the duty of each people is to create its own independent state, and this must be the acknowledged priority of the international policy.

Thus, human rights and rights of the peoples are equivalent historical values. In fact, they are the two sides of the same medal since they both guarantee in equal degree the development of our civilization. However, some concrete rights become more important, depending on the situation. So, in stable independent states the greater importance receives the protection of human rights from the attack on the side of the state. Ukraine, however, is not a nationally stable state. We still live under the threat of the disappearance of the Ukrainian language, which is the only factor capable of consolidating the country and protecting its independence. Under such conditions the right of the basic people for protection of its language has a higher priority than human rights that counteract this conservation.

The 20th century is ending, and with it the historical phenomenon of multinational empires. If humanity gets rid of the remnants of empire psychology and recognizes the priority of human rights and of nations’ rights for independence, then humanity will survive on the planet.

PL commentary. The interrelation of human rights and rights of peoples is, perhaps, the most dangerous question (the incorrect understanding of this question became the reason of the newest Balkan and Caucasian wars). That is why we greet any attempts to analyze this extremely complicated problem.

In our opinion, it is not quite correct to regard a national state as a subject of productive relations. Any corporation or firm, including international ones, is such a subject. Moreover, the historical experience confirms that the greater is the state interference into economy, the less efficient it is. That is why the argument that one must increase the number of independent states for increasing production is very doubtful, as well as the statement that each people must create its independent state. The people must grow and develop for the right to get its own state. When the state is created on the badly prepared ground, the consequences are far from being good, as we can see on the example of Chechnya. Ukraine, perhaps, is also stagnating, because independence fell on her before the proper time (and, alas, not only due to the national democratic movement; it rather happened by the will of the communist majority of the Supreme Rada of Ukraine).

It is difficult to agree with V.Mikhaylenko that only the introduction of the Ukrainian language can consolidate the country and fix its independence. The real facts are that Ukraine is a bilingual country and will remain such. Its stability may increase first of all by way of the growth of the civil society. This does not exclude measures to protect the Ukrainian language, which really needs support.

E.Zakharov

A person, which never dealt with convicts, will have difficulties to fancy how immense is the Ukrainian penitentiary system. Today we have 183 penitentiary establishments: 128 reforming-labor colonies, 11 reformatory-labor colonies, 32 preliminary prisons, 12 curing-labor hospitals and 5 special TB hospitals. In these places 226 thousand people are kept. In order to keep order among criminals they are guarded by about 50 thousand guards and wardens. At the apex of this pyramid is situated the recently created State Department in penitentiary system.

The worse our life becomes, the larger number of criminals appear. This is a banal truth confirmed many times in many places, and Ukraine makes no exceptions. Social studies confirm: when unemployment grows by 1% the total criminality grows by 6%, and among unemployed youth as much as by 11%.

While in 1988 about 30 thousand appeared behind the bars, then in the last, 1998, the harvest was 86437 (44.7% of them appeared to be recidivists). So, 10 years trebled the number of convicts. Certainly, the argument ‘militia works three times better’ is untrue. The Ukrainian courts doggedly reject to apply alternative punishments. In this respect Ukraine looks more cruel than our neighbors. This year 37.2% of all convicted got to penitentiaries. Russia and Moldova sent behind the bars 32.7% and 20.8%, respectively. In the countries of the Western Europe the average indicator is 7%. Another sad conclusion follows from these figures. About two thirds of people, who inhabited the preliminary prisons, appeared non-guilty: after several months of the incarceration they are released since their guilt has not been proved.

50 thousand are given prison terms less than 3 years — in most countries people are not imprisoned for such terms at all. Perhaps, Ukraine is rich enough to afford improving qualification of criminals in prison cells.

The following table gives the dynamics of such short-term incarcerations.

The number of the incarcerated for the term up to 3 years in Ukraine

1992  25446

1993  30524

1994  37122

1995  39100

1996 45971

1997  49145

1998  51061

Note: The articles of the Penal Code of Ukraine, according to which 70% were convicted, permit judges to apply conditional punishment except incarceration.

In the countries of Middle and Eastern Europe and Middle Asia the penal policy towards minors substantially differs. It is influenced by national traditions and by opinions of the political leadership as to reforming penitentiary systems of these countries. These differences are clearly visible in the number of minors kept in the penitentiaries.

In order to characterize each country we shall use two indicators: the number of minors in the penitentiaries per 100 thousand population and the number of convicted minors per one thousand of convicts. The statistical information on these parameters is given in the following table.

* up to 24 years of age

** up to 21 years of age

It follows from the table that the listed countries may be subdivided into three groups.

The first group consists of Transcaucasian countries, Bulgaria, Bosnia and Herzegovina. In these countries not more than 150 minors stay in prisons. Their proportion in the total number of convicts is negligible. In Bosnia and Herzegovina only 2 youths are convicted and 10 are the objects of the ODA. They are kept either in the only reformatory or in the special department of the colony for adults.

The composition of the second group, for which our indexes are neither too large nor small, may seem rather unexpected. This group contains Tadjikistan, Mongolia, Kazakhstan, Ukraine and Czechia. In these countries the number of minor convicts for 100 thousand population does not exceed 7, the proportion of minors in the total prison population is also not large: from 1.3% in Kazakhstan to 2.4% in Tadjikistan and Czechia. In Kazakhstan there are only 3 reformatories, in Ukraine — 11 reformatories, one of which is for girls (their number is 190). In Czechia those under investigation count 350 (339 youths and 11 girls) from the total number of 522. The rest, already convicted, contains only 5 girls.

The third group is rather diverse as to its composition. The proportion of convicted minors per 100 thousand of population is rather high — from 11 in Romania to 13 in Estonia, 20 in Belarus and 27 in Russia. The data for Uzbekistan are counted only relative to the already convicted, if to add those who are under ODA, the index can grow by 1.5 – 2 times. For Moldova and Poland the indexes are higher because they have another age level for minors. Before the introduction of the new Penal-Executive Code the upper level was 21, not 24 years of age, and then the number of the minors was almost twice less.

The ratio of the convicted and those who are under investigation is different in different countries: in Poland those under ODA make 30% of the total, in Russia — about 50%, in Estonia — 60%. The data on those under ODA is unreliable in Uzbekistan, Belarus and Turkmenistan.

The data presented enable us to evaluate the situation in Ukraine compared with those in the countries with similar social, economic and political conditions.

(In preparing the quoted materials we used the data obtained by ‘Donetsk Memorial’ and Penal Reform International, the Great Britain)

Interview taken by Vladimir Verdashko, editor-in-chief of the magazine ‘Pravozashchitnik’ from Sergey Kovaliov

Question: Sergey Adamovich, what is Russian human rights protection movement today? What is its composition and the number of members?

Answer: I am not an expert in these questions. I have never had organizational talents. your questions shall be better addressed to Ludmila Alekseyeva and Lev Ponomarev. Besides, there are specialists in the ‘Memorial’, who monitor the structure and composition of human rights protection organizations.

I shall only tell that the number of human rights protection activists is much greater than in the Soviet times. I think that the number of human rights protection organizations is in hundreds, or maybe more than a thousand. Their quality varies very much. There are such organizations that work on the high international professional level. For example, ‘Memorial’ is not worse then most respected International standards of ‘Amnesty International’. The latter is certainly more numerous, but I speak about professionalism.

Certainly, there exist human rights protection activists and organizations, that have rather naive and not very profound beliefs, sometimes not without, I will say, pecuniary interests. There are people who look important and regard their human rights protection activities like an element of their career, as a method to inflate their self. And their number is rather large, to my pity. In general, the human rights protection activities are always connected with a special opinion, often contradicting the official views. And certainly not anyone feels oneself comfortable, standing in opposition tot he state machine.

This demands certain properties of one’s character. It happens so that this activities make one to reveal such properties of one’s character that makes a human rights protection activist to be in opposition not only to the authorities, but to one’s neighbors and friends.

For example, there are human rights protection activists, who like to take part in court trials, and that is good. But some of them do it, for example, in order to accuse the judge of incompetence and do it in the inadmissible form.

Q.: At what extent the Russian human rights protection community is capable to unite their actions in order to express their attitude to some social or political problem? Is it possible for them to shape a single united position?

A.: The great variety in the structure and large differences in the professional level make the task of uniting human rights protection organizations rather difficult. Many human rights protection organizations with a rich experience show the lack of enthusiasm to the risk of the possible loss of independence. That is why the attempts to unite and blend are not so necessary. Nevertheless, some joint actions are taken. For example, the association ‘Common action’ has been created in Moscow. Its members are used to gather in the A.D.Sakharov museum to discuss and plan joint actions. These actions, in particular, are aimed at exerting pressure on the authorities. Alas, such attempts often appear inefficient. The present period of development of Russia is characterized, among others, by the attempts of the authorities to get rid of the public pressure, but our society is not ripe enough to exert necessary pressure. Generally speaking, the discussion about the ideology of the human rights protection movement in the recent time rose rather often and sometimes became very sharp. What must be the aims of human rights protection? And for what purpose do the activists of this movement toil?

Every serious and honest person would answer: I need this activities myself. Naturally, it is pleasant to comprehend that something depends on you. An honest person clearly understands that human rights protection activities are what he internally needs. But I also think that human rights protection organizations and activists have two socially important functions.

The first one: human rights protection activists are ‘geese’. Like those who saved Rome. They raise noise when the danger is near. This is a very important function. One must understand that the personnel of human rights protection organizations are not professional lawyers, they cannot function as lawyers or legislators — this is not their work. There are professionals for this. But when there appears a danger for the rights of minorities or some other groups or individuals, they raise the noise, and they can do it very well.

Q.: Do they do it well at present?

A.: I would say rather well. Not always professionally and convincingly, but loudly. As I have said, the authorities have learned to damp and ignore this noise, and the wide public have not yet learned to pay much attention. Well, the process is continuing and, by and by, both the authorities and the public will learn. Without this noise the public apathy would grow.

And I want to say about the other function of human rights protection organizations. This function is very important, although little noticeable: human rights protection organizations are the cells of the civil society. Such civil society cannot be established by edicts, it develops from inside. This structure and common understanding that we are the civil society must be hammered into the consciousness of people by long and repeated efforts. It seems to me that human rights protection organizations are crystallization centers of the civil society.

Here is an example about the ‘Memorial’, well-known to me. This is an impressive imprint of the civil society to be. Representatives of all branches of the social thought come to it, except fascists. Yet, there are anarchists, monarchists, communists and, which is natural, many liberals and social democrats. And these people belonging to so different public tendencies, which have rather varying convictions, are capable to work jointly to go in for right protection activities or to study our sad and bloody history, or to go in for other kinds of public activities, such as charity or education.

How can it be that these people, having so different outlooks and convictions, are capable to work together? The answer is very simple: in ‘Memorial’ democratic procedures domineer, as well as the understanding that the democratic procedure is ultimately important in our life. Every member is sure that he has guaranteed opportunities to develop his idea, suggest it for discussion to his colleagues. His ideas may be not accepted, but they always will be respected.

This is the model of the civil society: toleration of various beliefs and respectful attitude to anyone’s opinions, at the same time comprehending themselves as something pulled together.

Q.: Sergey Adamovich, name please the obstacles for development of human rights protection movement in Russia? Both internal and external. If one judges by the number of organizations, one can conclude that the circumstances are favorable, are not they?

A.: Nothing of the kind. Recently we have observed rather strong negative reaction on the side of the state. Here is an example: a registration of public organizations was started, and rather difficult situation has been created. The thing is that human rights protection NGOs on their statutes write the following: the aim of the organization is the protection of human rights. But the Ministry of Justice and its branches below state the following: human rights are protected by state bodies, and you may only support this activity. It seems to me that this is a discrimination, becoming an element of the state policy. In my opinion, this attitude of the state contradicts the right.

There is another external obstacle. I would call it the most important. The thing is that our mass media, being free in principle (censorship does not exist in our country), is not actually independent. That is why we, human rights protectors, cannot squeeze onto the pages of more or less influential press or on the screens of TV channels with large audience.

As to the external obstacles, they always existed and exist, and I would not like to dramatize the events. In my opinion, the highest obstacle is some internal brake, some, I would say, loss of humor, too seriously inflated cheeks, absence of self-irony. Many human rights protection activists are deeply mistaken thinking that they are authorities. We are not, but our self-respect must not suffer. Many activists do not understand that second function, of which I have named — the function of building the civil society. Less declarations, less appeals, we must just do real deeds and thus promote the construction of the fundamentals of the civil society.

It is quite understandable that many of us loose heart when there is no reaction to their actions, when their appeals are not heard. ‘Why do we need to do all this?’, that is the question which many activists put to themselves. That is a pity that they do not recollect a well-known fable about two frogs in the pot of cream.

The fable is that two frogs got into a pot of cream, and after several attempts to get out one of them drowned. But the other frog, having no visible chances to get out continued to jerk the legs; at last it made a clump of butter, got onto it and jumped out of the pot.

We, in a sense, must behave ourselves like the latter frog. They do not print your articles, they do not react to your appeals — disregard it and do what you should. Our motto must be: ‘Do what you should and see what will happen’.

If we understood that we make the basis of the future civil society, then there will be less pessimism in the human rights protection movement and more realistic comprehension of the problems that we encounter.

Q.: How do you assess the situation in the country?

A.: The Chechen knot will not be untied soon and this topic deserves a special discussion. Now it is important to understand that the Kremlin policy in Chechnya is but a reflection of some other features of this policy.

One of them is very alarming. The main factor of our political evolution is that the country obeys, as before, the Soviet nomenclature tradition of administration. I affirm this with the full responsibility. As you know, in recent years I had to touch many various structures, including those of the authorities. An I do not repent, I remember well and understand numerous reproaches that I heard from my friends and colleagues. Nonetheless I believe that human rights protection efforts are not out of place even among the authorities. Such efforts educate the authorities, as well as human rights protectors. Politically, I am an idealist, but anyway I am not so far from reality and I understand that interaction with the authorities is a necessary and useful activity. One should understand those people on whom you want to apply pressure.

In this connection I would like to deviate from the topic and speak about recent history: I want to put the question about when and how nomenclature tendencies began to restore (if they were interrupted at all).

After the defeat of the putsch in August 1991 many people, including me (though I was not the most active), addressed Boris Eltsin and Ruslan Khazbulatov: let us gather the Congress of peoples’ deputies, let us do it without delay.

It was obvious that this had to be done, because, as we said, we could elaborate a good Constitution instead of a correction of contradicting each other stupid norms. We could be able to get what we openly declared: a transparent open policy.

But those in power said: ’No, because’, they said, ‘the time works for us and we need to prepare well’. And most went to their summer leaves.

I do not know exactly what was Eltsin thinking, but I am almost sure that the flow of his thoughts was as follows:

‘And what is open policy, can I use it and what is this transparency? It means that I must tell everybody WHAT I decided and WHY? I did not make my career on this open policy, I made it on normal well-known obkom personnel intrigues. And with whom I was making my career? With these strange people, who speak the language unknown to me? No! I made it with Korzhakov, Lobov, Soskovets and the like. I know them like the palm of my hand. I know when they will defend me like themselves, and I know when they will betray me.’ And so on and so forth.

I am quite sure that similar considerations enabled the old nomenclature — maybe not of the first rank, but of the second and third — to occupy key positions in the country. This also explains why, after many speeches about reorganization of the KGB, that now our security services are different, and solve different problems, these services remained intact, including the personnel. Three recent Prime-Ministers: Primakov, Stepashin and Putin, have come from the KGB and other security services. During his long career in the communist party our President has got the habit of communicating with the Soviet security services. These services are retained and these habits are retained too.

The situation explains in particular the deteriorating climate of secrecy around the questions, which long ago had to become the object of the public oversight. This is ecology, ability to defense, the situation in security services, demography and statistics.

The first commandment of the nomenclature is: ‘Guess what wants the leader’. Both in 1994 and in 1999 it was extremely simple to guess what President Eltsin wanted. He wanted war, hence they recommended war.

We have it now.

(This material is kindly permitted to be used by the editorial board of the magazine ‘Pravozashchitnik’ and sent by the group ‘Human rights protection network’)

22 November from 10:00 to 11:00 a.m. the Kharkiv Group for human rights protection, the Kharkiv working group of the Ukrainian section of the international organization of human rights and the Kharkiv Union of soldiers’ mothers conducted picketing of Russian consulate. The slogans of the picket were; ‘People!? Stop the war!’, ‘The war with Ichkeria is the shame for Russia!’, ‘Russian mothers, do not let kill your sons!’. The participants of the picket intended to pass their appeal through the Russian consulate to the President of Russia Boris Eltsin. Besides, they wanted to pass the appeal of the annual meeting of the international organization of human rights, held in Bratislava on 7 November. In what follows we publish the press-release which was distributed during picketing.

A humanitarian catastrophe is happening in Chechnya. Hundreds of thousands of peaceful people had to leave their homes and escape from rockets and bombs. Old and ill die on the way, children perish from explosions, refugees live in beastly conditions. Hundreds of peaceful people have already perished in military operations. Violation of human rights in any country is not an internal affair of this country. Such violation is everybody’s matter. In our opinion, the main source of violations of human rights in Chechnya is the ‘antiterrorist operation’ started by Russia. That is why we consider it admissible to appeal the Russian authorities to stop the military actions and to begin negotiations with the government of Chechnya. We have come to this conclusion, basing on the following statements.

Two legal assessments of the events in Chechnya are possible. The first is argumented as follows: there are no legal reasons to start the military actions. The Russian power does not acknowledge the independence of Chechnya. Russia speaks only about the liquidation of gangs and terrorist groups in one of the regions of Russia and declares that this is an internal affair of Russia. The reason for the use of the armed forces inside the country, according to the Russian law ‘On defense’, is the state of war or emergency. Russia cannot conduct a war with Chechnya since the former considers the latter as a part of her territory. The state of war or emergency has not been declared. The use of bombs and rockets against the population of its own country is not stipulated legally and cannot be stipulated by any law. Bombardment of residential districts, medical establishments, mosques, maternity hospitals or markets entails gross losses among peaceful population. That is why fighting in Chechnya is qualified by Russian and international legal norms as a crime against mankind. If to regard Chechnya as an independent state, then Russia violated the Khasav-Yurt treaty of 1996 about the peace and interaction between Russia and Chechnya, in which the countries promised to interact according to the norms of international right. So from this standpoint the war is illegal too.

Another assessment of the situation is such: the Constitution of Russia stipulates the main values: constitutional order, rights and freedoms of individual, and integrity of Russia. The Constitution does not answer the question, what must be done if one of these values contradicts the other. The subject of Russia has no right to move away from Russia, because it will violate the principle of integrity. That is why the government of Russia has the duty to apply all methods stipulated by law to stop the process. There is no law about the details. The juridical acts and legal reality have their restricted sphere and no state may act according to some law, since there are also political ways and, under extreme situations, military ways too.

Logically, the both arguments are right, and they provide a good illustration of the profound conflict between the right of a people for autonomy and the principle of territorial integrity. The both principles belong to the fundamental values of human rights. However, international legal tools say nothing about this conflict of principles.

Thus, the legal arguments do not work in this conflict. Political measures can be applied, but the government of Russia for the second time gives the preference to forceful, not to diplomatic, methods. They declare that they fight with terrorists while the Russian army and special units of the Ministry of Interior fight with the Chechen people as a whole. Already for two centuries first the Russian Empire, then the USSR and now Russia do not change their policy against Chechnya. Is it not time to stop?

Having analyzed the situation in Chechnya, the International Society of human rights discussed the situation on 6 and 7 November 1999 in Bratislava and appealed to the government of Russia with the following demands:

to stop the bombardment of civil objects and peaceful population;

to open the frontier for refugees;

to guarantee the unimpeded delivery of humanitarian aid to refugees from Chechnya.

If these demands are not fulfilled by the government of the Russian Federation, the International Society of human rights will turn to

the Council of Europe asking them to suspend the membership of Russia in the Council of Europe;

the European Community asking them to freeze the financial aid to Russia (except humanitarian aid);

The International Society of human rights is a public organization created in Germany in 1972. It unites national sections of 34 states of the world. The activities of the International Society of human rights is based on the universal declaration of human rights and the principle of applying violence.

On 19 November civil funeral rites were held in Kyiv on Baykovo cemetery to commemorate the 10th anniversary of reburial of Oleksa Tikhyi, Yuri Litvin and Vasyl Stus in their native land.

That is a pity that this time the cemetery did not see thousands of supporters and prominent speakers, who had been present 10 years ago. Relations came and the closest friends, together with those who organized this action and those who once shared bread with Tikhyi, Litvin and Stus in the prison AN-389/36 near the village of Kuchino in Perm oblast.

Now on the ruins of this prison a memorial museum of political repressions ‘Perm-36’ has been created.