“Prava Ludiny” (human rights) monthly bulletin, 2001, #01

It looks that in our country, which has been proclaimed free and democratic ten years ago, old winds have started to blow. ’Competent’ people tell us more and more frequently that lately we have too much anarchy, which seems to impede us to live and work normally. They tell us that it is necessary to introduce the order with an ’iron fist’. They express their discontent that some people ’permit themselves too much’. In the opinion of supporters of stern discipline, that it is time to put an end to the anarchy and to establish order.

It goes without saying that people must be made to observe laws and public order. The more so in a democratic society, where such norms are distinctly formulated by the customs and laws. The other aspect is in which way the observance of the laws must be achieved without abusing the rights and dignity of citizens.

In Ternopil the authorities practice some new means. The order of the local directorate of education sent down orders to bring 20 persons from each school to the notorious meeting of 10 January in defense of either the presidential power of the implementation of the referendum results. This caused a quite natural protest of teachers. They asked on which grounds the teachers must in their working time to participate in political shows, that have nothing in common with the pedagogical process.

This new initiative of the directorate of education, frankly speaking, is not quite new, since it is shared by similar-minded colleagues from other towns. However, in Ternopil a quite original idea was born too. We describe this invention following the article in the newspaper ’Ukrainska pravda’ of 6 January 2001.

The administrative idea is that soon in each school of Ternopil a person will be appointed by the administration. This person will have to provide every day the town department of education reports about some events of political importance. This information will be further passed to the oblast state administration, and then to the presidential administration and government.

To this end, Ternopil teachers are obliged of inform the authorities about ’the most prominent social-political events’. Tatiana Dovbush, a teacher from school No. 19, who did not like turning into a stool-pigeon, told about the order of the department of education of Ternopil town council ’On the system of daily informing of the department of education’.

The way of gathering and passing information is described in the order ’Procedure of gathering, processing and passing the daily information’.

The administration is mostly interested in such events as ’organizational measures of educational establishments’ (seminars, conferences, etc.), actions with the participation of MPs, ’characteristics of the public organizations activities’ (rallies, meetings, demonstrations, etc.), emergency situations and natural disasters, ’popular criminal cases’ and ’other important events’.

The text of the message to the department of education must contain the date and time of happening the event, number of participants, goal, demands, theses of speeches, possible consequences, public resonance.

The order was issued ’on the base of order of the President of Ukraine of 16 September 1998 No. 492/98-?i ’On improving activities of local organs of the executive power in realizing internal policy’, the President’s decree of 12 July 2000 No. 887/2000 ’On improving information-analytical provision of the President of Ukraine and state power organs’ and the order of the oblast state administration ’On the system of daily informing of the President’s administration and the Cabinet of Ministers of Ukraine’’.

This unexpected information was distributed by the UNIAN agency. This happened in Ternopil, but few doubt that it concerns the entire Ukraine.

On 10 January a meeting in support of the President was held in Kharkov. According to some data, it was the largest in Ukraine (from 50 to 80 thousand participants according to various estimates).

On the day before the meeting some people phoned to us and informed us in which way the preparation to the action was going. Some street sweepers called to us and said that they are forced to be present at the meeting, otherwise they must hand in explanatory papers. We proposed to write a complaint to human rights protection organization, but they answered that they were afraid to loose their jobs. They gave other reasons: for example, one said that he was the first in the line for living accommodation and could not risk. The local conference of teachers that had to begin in the morning was quickly postponed to the afternoon in order to give the teachers the opportunity ’to defend our beloved President’. Rector of the National juridical academy ordered all the post-graduates to take part in the meeting by all means. We got the information from other higher and high schools about the insistent piece of advice to take part in this action. Several students were promised to give credits for coming to the meeting. Medical establishments were not forgotten either. A doctor told us that his hospital got the order fir 120 persons. In some hospitals the participants were given money for transportation. The obedient military were recommended to come to the meeting in the civilian clothes. Another story was told to us by a representative of a commercial firm: in a trembling voice he informed his relative, our colleague, that their firm also got an order for several people. One must be objective, the administration was reticent. When one of our acquaintances, a teacher in a higher school, declared that he could not come to the meeting because of his ideological convictions, nobody pressed upon him and even did not show any interest to his convictions. All this paragraph is written by rumors – we have not received any complaint in writing.

The meeting was appointed at 10 a.m. at Nezalezhnist Square. Just at this time I and my colleague were going out of the metro station at the square. We saw a large stream of people walking from the square. We decided that we mixed up the time, and the meeting already ended. But soon we came to the square and found out that the meeting was just beginning. The stream of the people consisted of those citizens, who had already marked their presence, thus proving their loyalty, and now went whither they wanted with the feeling of completed duty. But even without them there were many people on the square. Most of the participants separated into groups and communicated with each other. I got an impression that they were indifferent as to the reason of their being driven top the square. Many participants did not know at all what was going on: some said that it was the meeting against Kuchma, some – against the Supreme Rada, but the majority did not know the reason and stared at us as at Hamlet’s father’s ghost. As if they wanted to ask: who are you fidgeting? The live is improving, the pay arrears almost disappeared, this year electricity was not switched off yet, hot water is given to all the city for more than ten days on end…

The square, being decorated to the New Year, looked well, and the brought bright posters and yellow-blue state flags made the square even smarter. We seemed to return to holidays of the far away seventies. Either the rain, or the spirit of the gathered, or our own nostalgia transferred us to the happy childhood. But we did not feel happy. My colleague, who had marched on this square under the yellow-blue flag in the early 90s almost wept: ’Look, what they have done with our banner!’ Posters with inscriptions ’For stability’ acutely contrasted with some speakers’ demands to disband the Supreme Rada. Perhaps, these people never read the Constitution, otherwise they would know that there was no reason to do so. Nobody was surprised that the parties, which belong to the parliamentary majority and had organized the meeting, proposed to press on the Supreme Rada at meetings. The speakers used the terms democracy, stability, constitution and fooled indifferent participants to such a degree, that many, having stayed at the meeting to the very end, did not understand what it was about. Certainly not all willing to speak had the access to the tribune. When O. Kopeliovich, the head of the Kharkov branch of the liberal-democratic party, turned to the chairman with the request to give him the floor, he was refused and explained that the list of the speakers was approved five days before, and it was impossible to introduce any changes. That is a usual ’vox populi’.

The buses that were waiting for the participants on the same place as in ’old merry years’ transported away flags, posters, Kuchma’s portraits and other paraphernalia of the trade to the proper places dropping on the way the most patient backers of the President.

Yesterday a meeting of some political forces was held in defense of the President. Similar meetings are held now in most towns of Ukraine. The meeting in Nikopol was initiated by the People-democratic party represented by Sergey Timoshenko, the head of the local party organization and the charge d’affairs of the town executive committee. Since the meeting was organized by the supporters of stability, i.e. the current authorities, that was why they had to provide the audience. Young robust people came and left in their work collectives during the work-time. The opposition timidly distributed leaflets.

Newspaper ’Reporter’, 11 January 2001, Nikopol

* * *

On 10 January on the insistent recommendation of the local power workers of communal services and budget organization were voluntarily driven to the meeting organized by town executive committee officials in order to demonstrate their faithfulness to and solidarity with their ’favorite President’ L. Kuchma for all the good, which he had made to the Ukrainian people (including inhabitants of Nikopol) and will make. Every boss was given the exact number of people that he had to bring to the meeting during the working hours. Imagine, for example, a head of the department of blood transfusion on the day of gathering blood from donors! Or a maternity hospital, where the patients are asked to postpone the act until doctors and nurses finish to express their political loyalty! As a result, about 400 of the obedient citizens gathered at the entrance to the Victory Park, where about fifty more active figures did their best to express the ’people’s love’ to the President. The speakers hysterically appealed ’to disband the Supreme Rada’, while the audience lazily applauded. The majority of the audience did not listen to the speeches read from sheets of paper and demonstrated the tendency to disappear, which was not so easy under stern glances of their bosses of bosses of their bosses. That is why people scratched, yawned and to shifted from one foot to the other. They showed their love to the President and their hate to the Supreme Rada in a rather lazy way.

The day before the meeting some offended teachers phoned to our newspaper. They complained that they forced to go to the meeting to support the implementation of the referendum results. That is one of the complaints verbatim: ’We were told that our presence at the meeting was compulsory. They threatened to count us. Who will not come, will be separately questioned.’

Newspaper ’Nikopolskiye izvestiya’, 11 January 2001, Nikopol

In Odessa the much-advertised meeting ’In defense of the Constitution’ failed. Heads of Odessa district administrations got strict orders to provide the population at the meeting, more 50 buses were taken off the routes to be used for transporting the participants. In spite of all these tricks less than 5 thousand participants, instead of the promised 50 thousand, were driven to the Kulikovo pole. Representatives of various political parties also came to the meeting, but they carried their own slogans: ’Ukraine without Kuchma’, ’Down with Grinevetsky’, ’Down with law-enforcing ministers’, ’Investigate Gongadze’s case!’, ’We pay taxes to be protected’.

Very soon participants gathered by the authorities left the slogans and dispersed. Meanwhile the power-engaged speakers expressed their love to the President, the crowd shouted: ’Shame to Kuchma’, ’Down with oligarchic parties’, ’We are not obedient domestic brutes’. The official speakers defending the Constitution even declared that operation of the Ukrainian Constitution must be suspended (Mykola Tiukhtiy, PDP), the prosecutor’s office and the Ministry of Interior must be given extraordinary rights by introducing the state of emergency.

On 10 January a meeting was held in Ternopil. Next day it was described in details in the local press. The delegation sent to the meeting from the town of Chortkiv consisted of students and teachers of the local medical and pedagogical schools. The meeting was chaired by L. Kovalchuk, rector of the medical academy, the head of the newly created ’Committee of defense of the Constitution’, who was Kuchma’s trusted representative at the last election. Political parties were represented poorly: the People-Democratic party (PDP), party ’Democratic Union’ and Ukrainian Christian-Republican party. The bulk of the audience were civilian servants (it was impossible to telephone to the local directorate of ecology and health protection during the meeting – ’all went to the front’). Not everybody, who wanted to make a speech, could do it: some were refused. There were no attempts to organize a tent camp either in Ternopil or in Chortkiv. According to not-confirmed data, one of Ternopil school principals, who did not lead his detachment to the square, is threatened with sacking.

About 20 thousand people were gathered by the local authorities for the participation in the meeting in defense of Kuchma held in Lugansk on 10 January. All enterprises, organizations and education establishments received telephone messages with the demand ’to participate and support’. A head of every organization had to be followed by 250 participants, whose presence was checked by call-up.

Most people were sure that they went to the meeting in support of reforms, or raise of their wages and against pay arrears. Having heard speeches about the positive results of the President’s actions and about ’the attempts of some political forces to blacken his image in the eyes of his native people’, many participants were disappointed. Nonetheless, they did not join the Rukh’s slogan ’Down with Kuchma!’

Similar meetings were held in other towns and districts of the Lugansk oblast. Yet, not all the meetings were successful. So, in the town of Stakhanov the participants turned the meeting to an anti-Kuchma one, while in Krasnodon the participants just dispersed.

"Rukhinform"

The meetings were organized by the Sevastopol organization of the all-Ukrainian union ’Zlagoda’. The social-democratic party (united), party ’Democratic Union’ and People-Democratic party supported the initiative. About 10 000 people took part in the meeting. Being asked by a ’Prava ludyny’ correspondent, many participants said that they were workers of state communal services. They got oral orders of their bosses to finish the working day at 15:30 to be present at the meeting at 16:00. The bosses threatened to those, who would not come to the meeting, with various punishments, including dismissal. A worker of the Sevastopol communal enterprise ’Gorvodkanal’, who asked not to mention her name, told our correspondent the above-mentioned details. Heads of the state city administration were present at the meeting and vigilantly surveyed how their subordinates came to the meeting. Representatives of labor collectives and political parties declared in speeches about how good the life in the country became, about their support of President Kuchma’s course, they also disrobed ’the destructive forces’ in the Parliament. In spite of the fact that the meeting was officially called ’In defense of the Constitution’, the participants in their speeches and resolutions demanded from the President and people’s deputies to implement as soon as possible the results of the April referendum, that is the radical change of the existing Constitution in favor of increasing the President’s power. Leonid Zhunko, the head of the state city administration, finished the meeting.

On 10 January in Simferopol, on Lenin Square, a meeting in defense of the Ukrainian Constitution was held in the framework of the all-Ukrainian action. About 8 000 people participated in the meeting. The participants in their speeches declared their support of President Kuchma. The meeting was organized by People-Democratic party, party ’Democratic Union’, Agrarian party and Social-Democratic party (united). A. Korneychuk, the President’s representative in the Crimea, who heads the Crimean branch of the Agrarian party, and S. Kunitsyn, the heads of the People-Democratic party in the Crimea, made speeches at the meeting. The told about the improvement of the living standard in the country, about the growth of the GNP and appealed to support President Kuchma. Similar meetings were held in Yalta and other Crimean towns.

According to the materials published in Lugansk newspapers, the Leninskiy district court of Lugansk prohibited two protest actions planned by left political organizations.

On 29 December 2000 on the initiative of the first Komsomol secretary of Lugansk it was planned to burn a stuffed doll symbolizing the world capitalism in front of the former building of the oblast communist party committee. The court prohibited this action.

On the same day grown-up communists wanted to hold a protest meeting on the central square of Lugansk. That was also prohibited.

It looks like Lugansk courts imitate their colleagues from Severodonetsk in prohibiting political actions before and during the holidays.

to the decision of the Dzerzinski district court of Kharkov of 11 January 2001 concerning the civil case started at the application of the city executive committee on prohibiting the meeting and the picket of indefinite duration of the Kharkov branch of all-Ukrainian political party Ukrainian National Assembly (UNA-UNSO).

The analysis of the motivation of the prohibition of holding the meeting and the picket of indefinite duration (tent camp) organized by the Kharkov branch of UNA-UNSO on 11 January 2001 at 13:00 on the Nezalezhnist Square in Kharkov given by the court enables us to draw the following conclusions:

1. The legal source, i.e. the normative juridical base of the Decision is open to criticism. So, the court in the Decision refers to Article 39 of the Constitution of Ukraine, Article 2 of the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 ’On the order of organizing and holding meetings, street marches or demonstrations in the USSR’ and to the Resolution of the Supreme Rada of Ukraine ’On the procedure of the temporary validity of some USSR laws on the territory of Ukraine’ of 12 September 1991.

It should be stressed that legal acts and laws of the USSR concerning the realization of political rights of citizens contradict in spirit and letter to the Constitution of Ukraine of 1996. This note also refers to the above-mentioned Decree of the Supreme Soviet of the USSR of 1988, which was adopted under the conditions of the existing at that time monopoly of the Communist party. This Decree stipulated a permissive (typical of totalitarian regimes) and not informative (typical of liberal-democratic systems) procedure of holding meetings, street marches and demonstrations. This Decree conformed to the then non-democratic Soviet Constitution of 1977, that is why it may not be regarded as conforming with the operating democratic Ukrainian Constitution of 1996.

It should be noted that the two Constitutions (of the USSR – 1977 and Ukraine – 1996) belong to quite different constitutional types according to their political and juridical directions. That is why the constitutions imply quite different types of legislation on the realization of political rights. The Decree of the Supreme Soviet of 1998 was created for use under the conditions of a totalitarian political regime (with some weaker spots due to liberal leadership, although this regime did not exclude bloody skirmishes of law-enforcing bodies with people like in Vilnius in 1991). On the contrary, the Constitution of Ukraine adopted eight years later is based on the idea of the complete aversion to the totalitarianism, clearly refuses from the domination of the state over the society and a party monopoly. So, the principles and norms of the operating Ukrainian Constitution logically imply a fundamentally different attitude to procedures of realization of the political rights of citizens.

Taking into account that the Resolution of the Supreme Rada of Ukraine ’On the procedure of the temporary validity of some USSR laws on the territory of Ukraine’ of 12 September 1991, which permits to apply in Ukraine separate norms of the Soviet legislation ’under the condition that they do not contradict to the Constitution and laws of Ukraine’ does not permit, as the judge thinks, but forbids the action of the Decree of the Supreme Soviet of 1988. That is why the reference to the Decree under existing conditions is incorrect.

2. If one considers the court Decision separately from the Decree of the Supreme Soviet of the USSR of 28 July 1988, then one must admit that even in this case it contradicts the operating Constitution of Ukraine. Article 39 of the Ukrainian Constitution reads: ’Citizens have the right to gather in a peaceful manner, without weapons and to conduct meetings, marches and demonstrations, about which they had to inform (italics by the author) the executive power bodies or organs of local self-rule’. This means that the Constitution of Ukraine in its letter and spirit stipulates the informative, not the permissive approach to the realization of this right. It should be noted, that the Constitutional norms usually act not separately, but totally, by all constitutional legal ensemble. That is why the action of Article 39 of the Ukrainian Constitution is realized simultaneously with the action of other norms of the Basic Law, which make the autonomous legal institute.

Thus, Article 3 of the Constitution reads that ’confirmation and guarantees of human rights and freedoms of a citizen is the main duty of the state’. This means that before restricting some constitutional rights of citizens the state shall at first do everything which is possible in order to guarantee the rights to be maximally realized. In other words, the state may not forbid a priori the realization of the constitutional right for meetings, marches and demonstrations, unless it becomes clear that this realization actually endangers the national security and public order, and the own resources of the state are insufficient for the protection. Besides, in order to delimit a too broad understanding of such restrictions, Part 2 Article 39 of the Constitution reads that the right of citizens for meetings, marches and demonstrations may be limited exclusively ’with the purpose of preventing disorder or crimes, for health protection of the population, or for the protection of rights and freedoms of other people’.

It is clear that the court had no reason to prohibit the meeting and pickets of the UNA-UNSO because they violate public order, provoke crimes or threaten to the health of the population. The court did not refer to the facts of disorder of crimes, but just presumes their abstract possibility. The latter is inadmissible according to the Constitution, because it stipulates the informative and not the permissive approach to holding meetings, marches and demonstrations.

In its decision the court refers to the request of an officer of the Kharkov city directorate of the Ministry of Interior to prohibit the pickets and meeting ’because of the inability (of militia – Author’s note) to guarantee the public order’ in the given place at the given time. However, this request was made before, not after, the attempts of militia to preserve order on the Nezalezhnist Square. The fact that militia cannot be able to preserve public order was not stated, but presumed, in the court decision and in the request of militia. This means that by its decision the court in fact sanctioned the right of militia to decide the question about the permitting of forbidding the political constitutional rights of citizens in Kharkov. This obviously concords with the traditions of a police state.

The militia arguments could be partly admissible in the case of some local conflict (for example, between street gangs, ethnic minorities, etc.). Yet, in this case the matter was the demonstration of attitude to the central authorities, about which the citizens rather have a consensus.

3. One should bear in mind that Article 39 of the Constitution mentions the possibility to limit namely the right for meetings, marches and demonstrations. The article does not mention about not so large, local forms of expressing political convictions like pickets. It should be noted that the scientific doctrine of the modern constitutional right does not identify pickets with meetings, marches and demonstrations, regarding them as a specific form of political self-expression. As constitutionalists consider, ’simple pickets, i.e. not numerous manifestations (groups of people) near governmental buildings that do not hinder the movement of transport and pedestrians may be conducted without preliminary informing the authorities’. As to meetings, the constitutionalists recommend to apply for their control a soft informative order. The Dzerzinski district court equated without much ground the juridical regime of a picket and of a meeting.

Their reference to the unrealized by the picketers opportunity to set their camp not on the central square of the city, but in some other place does not look successful. Usually pickets (according to the international practice) are conducted in front of the buildings, where the corresponding authorities are housed. It is logical that for the action ’Ukraine without Kuchma’ the most natural place was the Nezalezhnist Square, which is faced by the building of the state city administration.

4. Assessing the arguments of militia quoted in the court decision that the planned meeting and pickets of the UNA-UNSO ’endanger the health and life of citizens’, who are going to spend their free time near the New Year tree, one should analyze physical parameters of the compared actions. As is known, the area of the Nezalezhnist Square is larger than a score of hectares. Only the frontal part of it can accommodate 80 thousand people. The approximate area of the spot for the meeting and pickets of UNA-UNSO is 10-30 square meters when the number of participants is 10-15. So, the comparison of the scales does not need comments.

5. If one admits that in the decision taken by the court a competition of rights of citizens was present, and the court just protected the rights of one group of people for recreation near the New Year tree thus constraining the rights of the demonstrators and picketers, then the decision is all the same not just. As it follows from the supreme juridical force of the Constitution, the rights stipulated by it are basic, and thus they must be provided (guaranteed) with higher priority than other rights. This position was repeatedly expressed in the juridical comments and analyses, it is present in the decisions of the European court on human rights.

That is why the realization of constitutional political right of the Ukrainian citizen meetings, marches and demonstrations is more important in the rights hierarchy than the right for recreations on the square and adjoining territories. The latter right, although is natural, is not formulated in the capacity (rank) of a subjective constitutional right. The meeting and pickets of the UNA-UNSO were planned to be conducted not on the transportation pavement to sidewalk, but on the grass loan. Thus, the physical obstacles for them did not obviously exist. There were political obstacles, but such obstacles must be ignored by courts in a law-obedient and democratic state.

V.V.Rechitskiy,
Candidate of Law, Constitutional expert of the Kharkov Group for human rights protection

During last 12 years the social-political situation in Kharkov was comparatively stable and quiet: conflicts were solved through negotiations. Either in the most strenuous periods of the late 80s – early 90s, or during the first meetings of national-democratic forces or at the most acute time in August 1991 there were no brutal actions on the side of militia in Kharkov. The public order, stability and civil agreement in our city was held mainly owing to the reticent behavior of the city authorities and law-enforcing bodies. Yesterday they behaved unreasonably.

On 11 January at 23:45 the militia officers literally smashed down three tents, put up on the Nezalezhnist Square in Kharkov by regional branches of the Socialist party, party ’Sobor’ and MP V. Mukhin in the framework of the action ’Ukraine without Kuchma’. Konstantin Masliy, the head of the city directorate of the Ministry of Interior, motivated his decision to remove the tents by the request of the city authorities and the necessity to support public order. In the process of dispersal of the tent camp two socialists got injuries, and three representatives of the UNA-UNSO were detained by militia, although they, having obeyed the order of the court to stop the action, took down their tent as early as in the afternoon and were outside the tent camp, that is they were mere observers. The court that supported the decision of the city authorities to prohibit the picketing and UNA-UNSO meeting took, in our opinion, an juridically incorrect decision, disregarding Articles 34 and 39 and thus brutally violation the freedom of expression and meetings of citizens. At the same time the court violated Articles 10 and 11 of the European Convention on protection of human rights and basic freedoms. It seems obvious that this picket did not violate or limited rights of other citizens, did not block the traffic of transport and pedestrians and did not violation the public order. This means that there were no legal grounds for the prohibition of the action. The reference of the court and the city authorities to the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 ’On the order of organizing and holding meetings, street marches or demonstrations in the USSR’ is illegal, since in this case the Decree contradicts in letter and spirit to Article 39 of the Ukrainian Constitution.

The actions of militiamen were also illegal and violating the citizens’ rights, because they put down the tents at night, without warning and presenting themselves, and before the court decision was issued, although it was know that the trial had to begin next morning.

During recent three years in Ukraine the wish ’to press and prohibit’ – the most disgusting feature of the Soviet system based on coercion and fear -- is demonstrated more and more intensively, the threat to the freedom of expression is felt more and more painfully. The events of 10 January 2001, when in Kharkov and other regions of Ukraine the authorities, like in the Soviet times, forced budget-paid workers and students to come to the meeting in support of L. Kuchma, demonstrates the same tendency. Unfortunately, this general tendency of strengthening the administrative dictate did not skip our city.

We appeal to the city authorities and law-enforcing bodies to obey the Constitution and not to trample the human rights. It is necessary to take a civilized decision about holding public political actions on the local level. This will prevent new conflicts and political scandals in the future, and to preserve civil peace and political stability.

12 January 2001

On 11 January at 13:00 representatives of the UNA-UNSO, Socialist party and party ’Sobor’ put up three tents on the Nezalezhnist Square in the framework of the campaign ’Ukraine without Kuchma’. Yet, after one hour the decision of the Dzerzinski district court was issued that prohibited to the UNA-UNSO the picketing and meeting. The UNA-UNSO members obeyed the order and put down their tent. But Volodymir Mukhin, an MP from the Socialist party, joined the action. He put up his tent, declaring that he, in the capacity of a deputy, opened a permanent post for agitation and that the needed the tent to keep documents. The Dzerzinski district court, considering the application of the city executive committee, postponed the sitting to 12 January. Yet, in the evening, at 23:45, several militiamen put down the tents and detained three members of the UNA-UNSO, who were in that place. The picketers did not resist. Next day the judge was at difficulty, since it was impossible to ban what already did not exist. Besides, he had to response to the complaints of the Socialist party members at illegal actions of law-enforcers. The decision was not reached, the trial was postponed to Monday. The socialists and the city department of the Ministry of Interior held separate press conferences on 12 January, where they explained their actions to journalists. The Kharkov Group for human rights protection reacted to the events with the declaration, whose text is given below.

The political crisis is aggravated. Violent actions of law-enforcers, uncouth attempts to conceal information about the investigation of Gongadze’s disappearance, the brutal pressure to drive people to the meetings in President’s support – all this encourages the opposition to more resolute actions. Attempts to hold the action ’Ukraine without Kuchma’ is blocked by local authorities, try, by hook or crook, to forbid the pickets in the form of tent camps, this commonly known action against the authorities. It looks like the President promised to sack the governors, if they admit tent camps on their territories. So they invent absurd arguments about rats, WCs, renting land and not mentioning tent camps in the Constitution or operating laws. Although the main principle declared in the Constitution is: what is not explicitly prohibited, is permitted. To guarantee the right for peaceful gatherings, the authorities are obliged to provide to picketers convenient places, WCs and the like.

What should be done by human rights protection organizations in this situation? As to me, now we must execute not only ’the routine human rights protection work’, which, undoubtedly must be continued. We must also try to organize negotiations between the authorities and the opposition, to criticize the erroneous decisions of local authorities and courts and, to decrease the strain of the encounter, to transfer it to the legal plane. In my opinion, now it is necessary to make the Supreme Court survey the decisions of local courts about the prohibition of tent camps. At the same time it is reasonable to hand in the proper case to the European court of human rights about the violation of Articles 6, 10 and 11 of the Convention of the protection of human rights and basic freedoms. This may be done by individual picketers to the organizations, which held the pickets. That will be a practical realization of the slogan: ’Let us counteract immoral authorities by the honest position’ formulated above in the appeal to the Ukrainian intelligentsia.

On 30 January at 11:30 a great host of militia detained about 10 members of the organization ’Shchit Batkivshchiny’ (’Shield of the Fatherland’), participants of the picket ’Ukraine without Kuchma’, who put up a tent near the main postal office in order to protest against the erecting fence on the Nezalezhnist Square, between the tent camp and the public. The place, where the detained are kept, is unknown.

Among the detained there were two girls, who militiamen treated with especial cruelty, and V. Chechilo, the head of the national union of servicemen ’Viyskova ednist’.

On 30 January the Dzerzinski district court of Kharkov took a ’Solomon decision’ in the case of the oblast organization of the Socialist party handed in be Kharkov executive committee. The executive committee asked the court to prohibit the action ’Tent camp ’Ukraine without Kuchma’’, referring to the fact that putting up a tent camp requires a land site.

The claim was partly satisfied by the court: it permitted to hold the action, but prohibited to put up tents, because ’tents are not mentioned either in the operating laws or in the Ukrainian Constitution’.

On the same day representatives of Socialist party, Liberal-Democratic party and party ’Batkivshchina’ (’Motherland’) started the action. The tents were spread on the ground…

’Protest actions cause epidemics, multiplication of rodents and decrease in immunity of the human population’. This was the conclusion of the specialists of the Dnepropetrovsk city directorate of health protection. Deputies of the city council, caring about the health of the local population and about cleanness of the city, prohibit people to hold meetings in especially dangerous places. One of such places is the downtown of Dnepropetrovsk. The directorate of health protection answered the requests from two district courts, which are preparing the arguments for the court session planned on 26 January and devoted to protest actions. The doctors persuade the judges that the actions are badly planned. First, the nasty weather may lead to the decrease of the participants’ immunity. Secondly, on the central street of the city, where it is planned to hold the meeting, there are no WCs, washrooms and rubbish bins. And if the action were not cancelled, that would, as medics think, lead to dissemination of influenza and multiplication of rats. The first attempt to hold a picket the initiative group made on 14 January. The group’s representatives declare that recent recommendations of the health protection directorate testify of the lack of political arguments. Disregarding the medical forecasts, 20 oppositional parties, cherish the hope to hold the demonstration. But it is unlikely. On the square, where the demonstration was planned to be held, heavy machinery was driven. Now the initiative group’s difficulties have doubled: they must look for WCs and for the new place near them.

On 29 January the Ivano-Frankivsk oblast UNSO organization spread a declaration, in which they blamed the town militia in kidnapping of the participants of the action ’Ukraine without Kuchma’. In the appeal UNSO communicates that at night of 24 January several militiamen in balaclava helmets beat ten participants of the action ’Ukraine without Kuchma’, who circulated on the central square of the town Sniatino of the Ivano-Frankivsk oblast; then the beaten demonstrators were taken somewhere in militia cars. Up to now the lot of the detained is unknown. The militia directorate of the Ivano-Frankivsk oblast refuses to give to the UNSO any information about the place, where the kidnapped have been put. Moreover, the militia head asserts that his subordinates never took part in this operation.

On 29 January the Rivne oblast militia handed to the court the case of ten participants of the action ’Ukraine without Kuchma’, who are accused of disobedience to militiamen. The representatives of the left and national-patriotic parties are sued for the attempt to organize a picket on a town square. Before this the town authorities had refused to give the permission for this picket. The court session of 29 January was postponed, since several protestants had been brutally beaten by militiamen and still stayed at a hospital (some had their ribs broken). Four of the victims started a hunger-strike, demanding to bring to responsibility Anatoliy Bondarchuk, the head of the Rivne oblast militia.

On 26 January 2001 two students of Rivne technical; university, Karpeliov Igor and Kaliukh Vitaliy, who participated in the action ’Ukraine without Kuchma’, which was held three days ago on Teatralnaya Square in Rivno, were called ’for a talk’ to the university rector Kravets S.V. Beside rector in his office were present the following officials: deputy rector Lutaev, head of the military training department of the university Isidorov P. P. and the militia officer in charge of the university Andriychuk. ’You may count yourselves former students’, that was the beginning of rector’s speech, ’You may pass my worlds to other students, who participated in the action. Rector accused Karpeliov and Kaliukh in breaking discipline, because, being at the demonstration on 23 January they could not be present at the lectures. Rector, reacting to Karpeliov’s attempts to protect himself, added: ’

If rector summoned all the students, who played hooky on this day, he, perhaps would have to use the assembly hall of the university. When the boys tried to learn what was their guilt, deputy rector Lutaev said: ’That is we, who are asking questions here’. Rector, reacting to Karpeliov’s attempts to protect himself, added: ’Sit still, I know you, you are all mobsters’. After this educating talk the students were ordered to write explanatory notes about their participation in the action ’Ukraine without Kuchma’.

Leonid Kuchma publicly declared that in 2001 a main political goal for him as a President of Ukraine is the implementation of the all-Ukrainian referendum results.

It is not an attempt to affirm truth, constitutional order and the rule of law in Ukraine, which is the main goal of the President, not the ensuring of the normal functioning of economics and the creation of convenient conditions for people’s work and life, but the wish to regain power by any means. This desire is even not hidden.

We know that the holding the referendum and implementation of its results is actually an attempt to usurp power by L. Kuchma and his camarilla. To make the usurpation legal they want to introduce changes needed by them to the Constitution.

The date of the referendum was chosen very symbolically. It was held on the 225th anniversary of the introduction of serfdom in Ukraine by Catherine II. The referendum was carried out like building of ’Potemkin’s villages’. This time, in fact, the referendum served not as a measure of expressing people’s will, but a test of new PR technologies: holding a people’s referendum without people. But it is impossible to keep the entire people in ignorance, to torment the people and to feed it with lies from TV screens. After all, it is always fatal.

Since the ground under the feet of today’s rulers started to shake, they openly attempt to throttle democracy, hoping that we shall remain passive. It will suffice to look at the preparation and conduction of the actions of ’people’s support’ of the President initiated by the authorities ’from people’s name’, using scornful for the people methods! Fidgeting of the power around the ’implementation’ of the referendum’s results is a challenge to all honest people in Ukraine.

We take this challenge!

We turn to the intelligentsia, to all citizens sensitive to truth: gather and organize in all Ukraine by the principles of morality, legality and not collaboration with alien dirty power. Gather honest people you know into groups of public disobedience. Spread truth among the people. People does not need the implementation of a pack of lies.

Let us counteract immoral authorities by the honest position.

Activists of human rights protection movement: S. Babich, M. Gorbal, M. Goryn, D. Grynkiv, E. Kontsevich, M. Kots, V. Lisovy, N. Marchenko, V. Ovsienko, G. Prykhodko, I. Rusin, E. Sverstiuk, O. Zalyvakha.

People’s deputies of Ukraine: D. Chobit, V.Panchenko, V. Stretovych, O. Sugoniako, A. Tkachuk and others.

The first statement that attracts attention in the suggested draft is the definition of the decision, which is proposed as obligatory for execution on all the territory of Ukraine. Article 1 of the draft mentions ’decisions of the chambers of the European court of human rights and decisions of the Grand chamber’. This is a too broad definition: the Court takes about 200 decisions per year, and, naturally, Ukraine must not execute them all. In the juridical circles of Ukraine a discussion is going on whether Ukraine must obey the decisions not concerning Ukraine, i.e. about the precedent character of Court decisions. In this connection it should be noted that in this draft the authors have in mind only the decisions concerning Ukraine and only of those, where the Court found the violation of the European Convention of protecting human rights and basic freedoms.

The so-called ’friendly regulation’ mentioned in Part 1 of the Convention is absent in the draft. When the complaint about a violation of the Convention is regarded by the Court as acceptable, a court chamber ’proposes its services to the interested sides for friendly regulation of the cases’. Although the agreement about the regulation is approved by the Court, it is given the form of a protocol on friendly regulation, which, in our opinion, should be mentioned in Article 3 of the Law as an executive document equated to a Court decision.

The third remark about Article 1 is related to so-called ’temporary measures for the protection of the claimant from the power’, which appeared for the first time in the case of Cruz Varaz vs. Sweden. Such measures may include the protection from extradition and similar methods. Item (a) of part 1 Article 38 of the Convention must be mentioned here, according to which all the states must by all means promote the consideration of cases by the Court, in particular, they must provide additional document by requests of the Court. These requests should be mentioned in the law too.

The complete exclusion of the ombudsperson from the execution of the decisions of the Court is also strange. For example, according to part 5 Article 5 of the draft, the officer in charge of the Convention on the protecting human rights and basic freedoms must direct every month his reports on the course of execution of the decisions to the Committee of Ministers of the Council of Europe. However, according to Article 19 of the law ’On the ombudsperson’, the latter ’must take part in the preparation of the reports on human rights, which are passed by Ukraine to the international organization, in accordance with the operating international agreements, which regarded as operating by the Supreme Rada of Ukraine’. Thus, it is necessary either to change the law ’On the ombudsperson’ or to add to the draft the statements that such reports about the execution of the Court decisions must be agreed (jointly prepared?) with the ombudsperson.

Statements on certain actions of the Cabinet of Ministers for the execution of the decisions look doubtful. As to the general measures stipulated in part 3 Article 6, the establishment of the duty of the Cabinet of Ministers to prepare the document for President’s consideration, and introducing this document by the President as urgent to the Supreme Rada look insufficient. The matter is that the Court itself, when it acknowledges these or those acts of the state inconsistent with the Convention, never formulates directly, which concrete changes must be introduced into the legislation. This is a responsibility of national organs. Such actions may have a from, for example, of the ombudsperson’s representations to the Constitutional Court on the acknowledgement unconstitutional of some legal act, canceling or changing President’s acts, the Cabinet of Ministers, ministries, agencies and local authorities. At last, sometimes a need arises to change not legal acts, but existing application practices. In this case the most efficient way is taking by the Supreme Court the proper decisions of the Plenum or request to the Constitutional Court for the interpretation of a law.

As to individual measures, it must be noted that taking just decisions by the Court is far from being frequent and is of subsidiary character (it is appointed only when the Court regards as unsatisfactory the compensation stipulated by national legislation). If the compensation is determined by the national laws, then a problem may arise connected with the necessity to change or cancel the court decision that violates the Convention. In this case part 2 Article 6 of the draft may collide with Articles 124, 126-128 of the Constitution of Ukraine in the part, where the duty of all organs to fulfil resolutions of the Cabinet of Ministers on the realization of court decisions. To solve this problem we count necessary, simultaneously with the consideration of this draft, to introduce to the Supreme Rada a draft of changes in Article 343 and 397 of the Criminal-Procedural Code and the Civil-Procedural Code, respectively, by including, as a reason for reconsideration of the case because of the appearance of new circumstances, the Court decision on the abuse of human rights connected the consideration of the case (a similar system is used, for example, in Belgium). Besides, other than material compensation may be introduced into the draft, for example, an official public apology of Ukraine before the victim of the violation.

Having set in Article 8 the terms of fulfilling the decision, the authors of the draft absolutely did not take into account that that the moment of the fulfillment is not the moment, when the corresponding resolution of some national organ is taken, and even not he moment of its actual fulfillment, but the date of taking by the Committee of Ministers of the Council of Europe the resolution that its functions on the surveillance on the fulfillment of the court decision are completed. And the Committee may take this resolution only after receiving the corresponding information from the national authorities. This should also be mentioned in the draft.

Some doubts are caused about the efficiency of the activities of the organs of compulsory execution of decisions, stipulated by Article 9 – State executive service. According to the draft, the main defendant is the Cabinet of Ministers: it is from its reserve fund that the compensations must be paid at first, the same organ is responsible for breaking the deadline of the fulfillment (Article 12 of the draft). The State executive service is, however, a branch of the Ministry of Justice, which, in its turn, obeys the Cabinet of Ministers.

(The draft was offered to the Supreme Rada by MP Sergey Golovaty on 15 March 1999. The law was adopted in the first reading on 13 July 1999)

This law regulates the legal relations that arise in the connection with the necessity to fulfil the decisions of the European court of human rights according to complaints of individuals, NGOs and groups of individuals about the abuse by Ukraine of their rights, stipulated by the Convention on the protection of human rights and basic freedoms, 1950.

I. GENERAL

Article 1. Decisions of the European court of human rights to be fulfilled .

Decisions of chambers of the European court of human rights and of the Grand chamber of the European court of human rights (European court decisions, in what follows) are compulsive for the fulfillment on the entire territory of Ukraine.

The procedure of the fulfillment of the European court decisions are determined by this Law, the Ukrainian Law ’On the fulfillment procedures’ and others legal acts, taking account of the peculiarities stipulated by this Law.

Article 2. The procedures of legalization and publication of the European court decisions.

The official translation to Ukraine and the proof of the authenticity of the translation of the European court decisions is provided by the permanent representation of Ukraine in the Council of Europe during one week from the date of issuing the decision.

Being legalized in the standard way the European court decision is immediately sent to the side concerned (plaintiff) and to the officer in charge of executing the Convention on the protection of human rights and basic freedoms (officer in charge of the Convention, in what follows).

The officer in charge of the Convention immediately sends the European court decision to the newspapers ’Golos Ukrainy’ and ’Uriadovy Kuryer’ that must publish the decision not later than a month from the moment of its issuing.

Article 3. The executive instrument of the fulfillment of the European court decisions .

The executive instrument of the fulfillment of the European court decisions is the European court decision legalized following the procedure stipulated in part 1 of Article 2 of this law.

II. THE PROCEDURE OF THE FULFILLMENT OF THE EUROPEAN COURT DECISIONS

Article 4. Handing the European court decisions for the fulfillment.

The side concerned (plaintiff) or its representative had the right, within the term determined by Article 84 of the Ukrainian law ’On the fulfillment procedures’, to turn to the officer in charge of the Convention with a written application about the fulfillment of the decision.

The application of the plaintiff (his representative) is, in the legal respect, not related to the fact of legalization of the European court decision.

Article 5. Actions of the officer in charge of the Convention concerning the fulfillment of the European court decision.

Within five days after the reception of the application about the fulfillment of the European court decision the officer in charge of the Convention turns to the Prime-Minister of Ukraine through the Minister of justice with the application about the fulfillment of the decision. The application must elucidate the following questions:

1) a brief summary of the case concerned;

2) the essence of the decision to be fulfilled;

3) propositions concerning the fulfillment methods;

4) the deadline of the fulfillment of the decision stipulated by law;

5) propositions as to actions of the Cabinet of Ministers of Ukraine or its competent organs concerning the punishment of the guilty of abusing human rights, resumed by the European court decision.

In this application other information may be reflected, if the officer in charge of the Convention finds them needed for the unconditional fulfillment of the European court decision within the term determined by this law.

The European court decision legalized according to part 1 of Article 2 of this law is appended to the application. Along with the officer in charge of the Convention the Minister of justice signs the application.

The officer in charge of the Convention assists in any possible way to the Committee of Ministers of the Council of Europe that surveys the execution of the European court decisions.

Every month the officer in charge of the Convention informs the Committee of Ministers of the Council of Europe through the Ministry of Foreign Affairs of Ukraine. Simultaneously these reports are officially published by the officer in charge of the Convention in the newspapers ’Golos Ukrainy’ and ’Uriadovy Kuryer’.

Article 6. Actions of the Prime-Minister of Ukraine and the Cabinet of Ministers of Ukraine concerning the fulfillment of the European court decisions.

During five days after the reception of the application of the officer in charge of the Convention about the fulfillment of the European court decision the Prime-Minister of Ukraine gathers the Cabinet of Ministers for the consideration of the application.

According to the result of considering the application, the Cabinet of Ministers takes a resolution, which determines the procedure of the execution of the European court decision, as well as the deadline within the time interval determined by Article 8 of this Law. Organs and officials, which are mentioned in the resolution, must fulfil the European court decision within the term determined by Article 8 of this Law.

In case of necessity to adopt new legal acts or update the operating legal acts on the fulfillment of the European court decisions the Cabinet of Ministers turns to the President of Ukraine with the request to pass as urgent the needed law draft to the Supreme Rada of Ukraine. The draft shall be considered by the Supreme Rada within the time interval determined by Article 8 of this Law.

In case of necessity, according to the European court decision, to recompense the moral and/or material damage to a person or an organization the Cabinet of Ministers applies measures determined by Article 7 of this Law.

Article 7. The procedure of the material recompensing according to the European court decision .

The Cabinet of Ministers of Ukraine shall, within the time interval determined by Article 8 of this Law, recompense the damage and court expenses to the person or organization, according to the European court decision.

The recompensing is paid from the state budget of Ukraine.

The property mentioned in the decision is returned as such, if it is not possible, then its cost is fully recompensed, according to its current market cost. The priority in the evaluation of the property mainly belongs to the plaintiff. In case of death of the plaintiff, his right for recompensing passes to his heirs.

The recompensing sum is transferred to plaintiff’s bank account by the Main Directorate of the state treasury of Ukraine. In case if the account does not exist, it is opened by the Main Directorate of the state treasury for the expenditures from the state budget in the bank selected by the plaintiff.

The sum transferred to the plaintiff’s account from the Main Directorate of the state treasury may be given to him in cash, if he wishes so.

The Cabinet of Ministers may turn to the court with a regressive claim with respect to the organ or official, whose activity or passivity resulted in the violation of human rights, which were restored by the European court decision.

Article 8. The term of the fulfillment of the European court decisions .

The European court decisions must be immediately obeyed starting on the day of the reception from the claimant (or his representative) the directive about the execution of the decision.

If one of the sides turned with the request to pass the case to the Grander chamber, then the execution of the European court decision is suspended until the Grand chamber takes a final decision.

The decision of the Grand chamber is final and must be fulfilled according to the procedure stipulated by this Law.

III. COMPULSIVE FULFILLMENT OF THE EUROPEAN COURT DECISIONS

Article 9. The organs of the compulsive fulfillment of the European court decisions.

The compulsive fulfillment of the European court decisions is imposed on the state executive service, which enters the system of organs of the Ministry of Justice of Ukraine in case, when the European court decision was not fulfilled by the Cabinet of Ministers within the proper term.

In order to accelerate the fulfillment of the European court decision, a group of state executors may be created according to the decision of the head of the State executive service.

Article 10. The procedure of the compulsive fulfillment of the European court decisions.

The compulsive fulfillment of the European court decisions is carried out according to the procedure of the Ukrainian Law ’On the execution procedure’, taking into account peculiarities of this Law.

Article 11. The control over the execution of the European court decision.

The control over the terms, correctness and fullness of the execution of the decisions by a state executor is realized by the department head of the state executive service, to whom the state executor directly obeys, and the head of the state executive service.

IV. THE RESPONSIBILITY FOR DODGING THE FULFILLMENT OF THE EUROPEAN COURT DECISIONS

Article 12. The responsibility of the Cabinet of Ministers of Ukraine for the breaking the terms of the fulfillment of the European court decisions.

If the Cabinet of Ministers breaks the term of the fulfillment of the European court decision determined by this Law, then a fine is paid to the claimant from the sums given from the state budget to sustain the Cabinet of Ministers; the fine may reach 25% of total recompense.

The decision about the fine is taken by the state executor and is approved by the head of the state executive service.

The fine is paid tot he claimant according to the procedure described in Article 7 of this Law.

Article 13. The responsibility of state officials for dodging the fulfillment of the European court decisions.

If the European court decision is not fulfilled or the deadlines are broken because of the lax execution of their service duties by the state officials, then the guilty officials bear disciplinary, administrative, civil and criminal responsibility stipulated by the Ukrainian laws.

Article 14. The responsibility for the deliberate non-fulfillment of the European court decisions.

Persons guilty of the deliberate non-fulfillment of the European court decisions bear the responsibility stipulated by part 2 of Article 176-4 of the Criminal Code of Ukraine.

V. FINAL CONCLUSIONS

The sums that had to be paid to plaintiffs during 1999 are paid from the Reserve fund of the Cabinet of Ministers of Ukraine.

Later in the Ukrainian Law on the state budget proper sums in the budget must be determined. The calculations of the expected sums are given to the Ministry of Finances by the officer in charge of the Convention and approved by the Minister of justice in the process planning the state budget of Ukraine.

This Law becomes operating since the day of its publication.

A Lugansk dweller Vladimir Tarasiuk stayed for fifty days in a surgical and lung departments of a hospital after one day of staying in the Artiomovsk district militia precinct of Lugansk.

Three plain-clothed cops came to Tarasiuk’s home and proposed him to come to the precinct for a talk. Tarasiuk, who did not feel that he was guilty in anything, quietly agreed. But the first question that he heard in the precinct was: ’Why have you killed the doll?’

He was explained that they accused him of murdering a woman that had been committed in spring in his neighborhood. Tarasiuk naturally affirmed that he did not know either the place or the time of the murder and had nothing in common with it.

The militiamen decided that the talk was fruitless and began to draw the confession by more ’reliable’ methods. Beside bare fists they used a gas mask and a steel bar. They switched on music to jam the sound of blows and screams of the tortured victim. They were beating the victim from morning till night and threatened to take him to the park of culture and rest and finish him there. In the evening Tarasiuk was put facedown and was lifted by the wrists handcuffed on the back (it was called rack in the old times); at the same time he was beaten on the ribcage. Being afraid that they would beat him to death, Tarasiuk agreed to confess the crime of which he was not guilty. His torturers were kind enough to give him the opportunity to write the voluntarily confession and that he had come to militia on his own will. They said to him that this would facilitate his lot.

While Tarasiuk was writing the confession, supporting his right hand with his left one because he could not hold the pen, he was given a sandwich and a pack of cigarettes. They said: ’We are not beasts. Have the sandwich’. The rest of the night the arrested spent in a cell.

He was lucky in the morning. V. Konstantinov, a deputy of the Artiomovsk district prosecutor, to whom Tarasiuk was taken with his ’confession’ and with the report on the interrogation, having seen his state, called for a motor ambulance. Here is the excerpt of the medical conclusion No. 5029 given by doctors of the 3rd town hospital: ’… diagnosis: the closed trauma of the thorax. Simple fractures of six ribs on the right. Closed double fractures of 6, 7, 8, 9 ribs on the left. Hypodermic emphysema. Contusion of the front abdominal wall. Contusion of the right kidney. Paresis of the right radial nerve. Multiple bruises on the chest and face. Posttraumatic exudative pleurisy’.

According to doctors, such traumas as double fracture of ribs happen during the road accidents, but usually not as a result of beating. I recollected the case when a man was battered to death in Antratsit militia – he had his chest smashed. Is it a result of special training? I am sure that potential militiamen must be tested for cruelty, and the positive test must mean the professional inability.

By now the militiamen, who beat Tarasiuk, have been dismissed, and a criminal case is started for inflicting injuries of ’medium gravity’ according to Article 166 of the Criminal Code (misuse of power). According to the prosecutor, the former militiamen would also be accused of illegal detainment and illegal holding in custody. The reason is that no evidence at all exists that Tarasiuk had anything in common with the murder. On the contrary Tarasiuk is a quiet man with higher education, who is characterized by all as a respectable law-abiding man. The exception is made by his neighbors, who have a conflict with Tarasiuk, since he persecutes them at court.

This fact intimidated me because I am an initiator of some court affairs, while not all murders are disclosed in Severodonetsk, and by ’intelligent’s’ ribs would hardly stand a third-degree interrogation.

We are glad for Tarasiuk. He was lucky: he remained alive and even will not be condemned for the crime he never committed. But many people in our country were not so fortunate.

Perhaps the word AMNESTY is the most beautiful word for all the incarcerated. Several years ago three amnesties per year were conducted in Ukraine. Now, after the adoption of the corresponding law, it happens like birthday – once a year.

At a first glance, an amnesty is undoubtedly a positive event. However, if one considers the reasons and consequences of an amnesty, then it looks not so positive.

The words about humane state look rather cynical, if one tries to answer the question: why and to whom an amnesty is applied. Pre-term releases from punishment get those, who committed petty crimes. From the viewpoint of the incarcerated this means that an amnesty is applied to those, who could be convicted alternatively, without incarceration.

But the state (a humane state!) in the person of the judge decided to imprison the criminal. It separated him from the family and sent him to the company of criminals much more hardened than himself, to the conditions, where food is inadequate, where TB and other dangerous diseases reign without the opposition of the proper medical aid, where the cells are always overcrowded. Yet, every summer our country that wasted significant sums to upkeep the incarcerated is overwhelmed with humanism. And the state releases tens of thousands people. They all lost something essential: a family, job, and many of them acquired AIDS, TB and criminal habits and skills. An original humanism!

We remind, that about 80 thousand people are condemned to incarceration every year in Ukraine; about 59% (50 thousand) are get terms not larger than three years, that is they are incarcerated for petty crimes. This very category of offenders is mainly amnestied.

The amnesty statistics for recent years looks as follows.

In 1998 according to the amnesty 38500 persons were released from penitentiaries, next year the figure was about 19 thousand.

In 2000 the amnesty was conducted from 1 June to 31 August. According to the data of the State Penitentiary Directorate, cases of 38988 people were considered during this period. In particular, by court decisions:

the number of the released was 11944,

among them 942 women (the total number of the incarcerated women is 10 thousand);

2192 people got shortened terms of imprisonment;

lift of the punishment not connected with incarceration 23420 people, among them 7831 women;

the amnesty was not applied to 1432 brazen breakers of discipline.

According to the Law on the amnesty, the number of the released consisted of the following groups:

173 minors (the total number of incarcerated minors is about 3000),

494 persons having minor or handicapped children,

36 persons, who have parents older than 70 or parents-invalids of the 1st group, who need care,

55 old-age persons,

60 invalids of 1st and 2nd groups,

19 war veterans,

33 rescuers of the Chernobyl catastrophe,

755 ill with active form TB.

The Penitentiary Directorate developed and applied some procedures to facilitate finding jobs for the released. Local authorities were informed about every amnestied person for granting aid in getting residence and job.

As a result of these efforts, by the state of 1 September 2000, 6.7 thousand of the amnestied got propiska (residence permission), 3.4 thousand got jobs, among them 423 got jobs through labor registry offices. It is not difficult to count the opposite: the number of jobless and having no propiska. Where are they? What are they doing? How do they find food? It can be only guessed.

The amnesty of 2000 did not affect much the overcrowdness of penitentiaries. The number of the incarcerated by the end of the amnesty grew by 5%. Certainly, the overcrowdness would be even greater without the amnesty.

It is obvious from long ago that to diminish the load of the penitentiaries is possible only after the cardinal change in the punishment policy. First of all, it is necessary to increase the number of verdicts not related with the incarceration: fines, conditional incarceration, public works. The society will benefit from it, and the penitentiary personnel will terminate to be hostages of the archaic court practices.

Interview of Evhen Sverstiuk given to the correspondent of the weekly ’Dzerkalo nedeli’ Taras Marysik

An award was given to Evhen Sverstiuk, the president of the Ukrainian PEN-club, the editor-in-chief of the newspaper ’Nasha vira’, for his book ’Na sviati nadiy’ (’At the celebration of hopes’). This award of the UNESCO for the countries of Central and Eastern Europe was given in the capital of Romania. This prize bears the name of the outstanding Romanian dissident Corneliu Kolosu ’For interethnic and interconfessional tolerance’.

-- Mr. Sverstiuk! First of all I want to congratulate you with winning this award. It would be interesting to learn, how you came to contact with the UNESCO?

E. S.: The information about the award ’For interethnic and interconfessional tolerance’ named after Corneliu Kolosu is spread through the national commissions of the UNESCO for the countries of Central and Eastern Europe. The letter with the proposition to Ukrainian authors to take part in the competition for this award came to the Ministry of Foreign Affairs of Ukraine. The workers of the ministry should be praised – they did not forget about the letter and sent it to the proper addresses’. Their task was facilitated by the condition that they should find a work not merely on a religious topic, but those works of a Ukrainian author that were translated into English or French. The circle of the candidates became much narrower. In this way I got the questionnaire. I filled it in, formally and briefly. This was the way, in which I , using your phrase, came to contact with the UNESCO.

-- Which works did you send to the organizing committee of the award?

E. S.: I sent to the organizing committee my book ’At the celebration of hopes’ and I appended part of this book printed by Harvard University translated to English by Yuri Lutskiy. I also appended a French translation of my essay about Vasyl Stus, as well as my speech ’Ukrainian sources of the Russian religious philosophy’ delivered in la Sorbonne. By the way, I keep the letter, which in the 70s the Ukrainian community in France sent to the UNESCO with the petition to release from a colony the Ukrainian author Evhen Sverstiuk incarcerated for literary activities.

— What is Korneliu Kolosu, with whose name the award is called?

E. S.: Corneliu Kolosu is a well-known figure, almost a saint, who has a limitless moral authority in Romania. He was an activist of People’s agricultural party in Romania. After the so-called ’liberation’ in 1947 he was incarcerated. He spent 17 years in communist prisons and then on coercive toil. A very known biography for us. Corneliu Kolosu after his release did not stop his political activities. He applied efforts for the Renaissance of the civil society in Romania, with his words and deeds he fought for the tolerance, solidarity and moral principles.

— What is your attitude to the interethnic and interconfessional problems, in particular in the former USSR?

E. S.: These are Augean stables that have never been cleaned. I would even say that this is a permanently throbbing volcano, under which dark forces blow out the fire of enmity for ages. These problems were always exploited for kindling ’class struggle’. Interethnic problems were used more frequently. And although the proletarian revolution of 1917 proclaimed that it put an end to interethnic conflicts, actually, in places, where national feelings were suppressed, the Russian chauvinism showed its horns. And where the end was put to religious prejudices, the regime started to use the tamed domestic church in the struggle against other beliefs, in the struggle against so-called sects. After the disintegration of the USSR the both problems, in the wild and painful state, became actual again. That is why the problem of tolerance is, in fact, the passage from violence to the peaceful dialog, it is the passage to understanding each other and cooperating with each other. Healing of these age-old wounds is a very important problem. That is why the Blessing Commandments say: ’Blessed are peace bearers, for they are called God’s sons’.

— Do you see in the modern Ukraine any opportunities for the compromise to make the interethnic and interconfessional relations more tolerant?

E. S.: I believe that the disease of the society, in which we were born and bred, lay in its ideologically cyclic character. Directives were sent from the top. The authors of these directives did not think and did not consult with other people, they were sure that they new the only correct answer. In fact, any dialog was prohibited. I mean not a banal exchange of questions and answers, I mean an argument of ideologies, a discussion about some meaningful problems. I am sure, that ’dialogic’ form is very important for 20th and 21st centuries. Beforehand it was believed that the dignified opponent was absent: those, who opposed were bourgeois fry. Now the opponents are also despised: they are backers of the communist regime. In reality, there are many respected people in our society, who need serious debates and meditations about the past. This king of the atmosphere must be healing for people with their impenetrable stereotypes.

— For a long time a democratic tradition exists in Ukraine. It is known, for example, that Ukrainian villagers respectfully treated foreign gods and relics and did not know xenophobia.

E. S.: They used to say: ’The person must be good and its nation is immaterial’. I believe that in Ukraine it would be difficult to fan the fire of interreligious clashes. But the generations bred under socialism are different. Their deformed attitudes must be corrected now. In Russia intolerance was cultivated under czars. Russians always experienced a great suspicion to foreigners, westerners and catholics. Masses even did not think them to be Christians. On the contrary, it was not wonderful to see at that time in a Ukrainian small town an Orthodox Church, a Roman-Catholic church, a synagogue and sometimes a mosque. People did not spit upon alien relics. Certainly in some folk songs one may find words about pagan beliefs, but that was a mild reaction to being called a giaour.

I recollect that in concentration camps a clash between a catholic and an orthodox Christian would be unthinkable. We did our best to get Holy Scriptures, to hide it, to read and discuss it. Interconfessional problems were so insignificant that everyone, who returned from the concentration camps, became quite immune to these problems.

-- It is interesting that the award was given to you for interethnic and interconfessional tolerance. Yet, the people, who communicated with you before and communicate now, consider you one of the persons least prone to compromises in the modern Ukraine, when it concerns principles.

E. S.: However, I recollect an episode at the celebration of Pavlo Tuchyna’s centenary. Pavlo Zagrebelny chaired the celebration. He was afraid to give me the floor, since he suspected that I would spread Tuchyna on the wall. And when I was finally given the floor, the chairman was astonished that I spoke about Tuchyna as about a great poet. But there is nothing to wonder at, since one must speak about the greats basing on their best works, while their weak spots and worse creations is the task of assistant professors or psychologists of the Freudian school.

Tolerance to Soviet classics was worked out not in our country (here they would be smashed in less than no time by finding verses about Stalin, Lenin and the party). The first, who learned to read them properly were our literary critics abroad – Barka, Koshelivets, Sheveliov. Say, Barka wrote a touching obituary to Pavlo Tuchyna, as if the he had never praised the party. Koshelivets published a brilliant monograph on Oleksandr Dovzhenko, as if he had never been a Stalin prize winner. Sheveliov always made a fine distinction between literature and conjuncture noise. Yet, at the same time, no one of them sacrificed his principles. If a literary critic has no principal approach to the search of truth, then such criticism, either angry of kind, is worthless.

-- Do not you think that, on the ground of tolerance, you may be reproached with your acute speech at the readings dedicated to 15th anniversary of Vasyl Stus’ death, in particular, about the role of advocate V. Medvedchuk at Stus’ last trial?

E. S.: I believe that these are different things. The intolerance to ideas is one thing. And the intolerance to the absence of moral principles, when a man does not reform his position, but declares that he had no such principles at all and that he never served faithfully to the totalitarian party – that is quite another thing. My speech did not reduce only to Medvedchuk. Criticism is just a form to shape clear and distinct categories, typical, by the way, for European countries. There the situation when a person gets to the top of power and tries to conceal some secrets from the public, certainly secrets not concerning everyday things, cannot last too long. The Western democratic public discloses truth without mercy. Some people here confuse it with intolerance. Some weak people reckon: let sleeping dogs lie. As if what had been had disappeared. Every thing alive must purify and fight with rot. Stern laws act in the biological and social life, and the God’s justice does not stand falsehoods. That everyone must know from babyhood.