war crimes in Ukraine

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Politics and human rights

The independent legal comment of the Kharkov Group for human rights protection on the constitutional aspects of the criminal case against the President of Ukraine started by judge Yu. Vasilenko and on some following statements of Ukraine state officials

The Kharkov Group for human rights protection calls the attention of the „Prava ludyny“ readers to two comments concerning the constitutional and criminal-procedural aspects of the criminal proceedings against President of Ukraine Leonid Kuchma instituted by Yu. Vasilenko, a judge of the appeal court of Kyiv. The first comment is a response to the polemics in Ukrainian and foreign (see: „President seen likely to avoid probe“, „Clarifying an article on Ukraine“ – Washington Times, October 26, 31, 2002) mass media. This polemics concerns the question whether the actions of judge Vasilenko violate the guarantees of immunity of the President stipulated by Articles 105 and 11 of the Ukrainian Constitution. The first comment does not touch on the particular professional (criminal-procedural) aspects of judge Vasilenko’s actions, which were expounded in the decision of the Supreme Court of Ukraine of 27 December 2002 (Ухвала Верховного Суду України від 27 грудня 2002 р. // „Юридичний вісник України“, Nos. 1-2, 4-17 January 2003). These aspects are considered in the second comment. We also present the text of the Supreme Court resolution.

„PL“ editorial board

The independent legal comment of the Kharkov Group for human rights protection on the constitutional aspects of the criminal case against the President of Ukraine started by judge Yu. Vasilenko and on some following statements of Ukraine state officials[The text of the comment was prepared by V. Rechitskiy, the constitutional expert of the Kharkov Group for human rights protection.]

1. The short essence of the juridical position of the Kharkov Group for human rights protection on the affair of judge Vasilenko is the following: although only MPs have the right to initiate the procedure of impeachment if the President commits the high treason or other crimes, the institution of a criminal case, as a separate judicial action, does not correlate with the impeachment procedure. The matter is that, according to the Ukrainian laws, the question about recognizing an action as a crime is not a political one and may not be solved by MPs, this question is more narrow and special.

This means that before initiating the impeachment MPs must have the professionally stated „knowledge about the crime“, since expressing the suspicion that somebody (maybe even the President) committed a crime is unconditionally related by the Ukrainian criminal-procedural laws to the questions of special competence (the empowered state officials are listed in the Civil-Procedural Code (CPC)).

Judge Yu. Vasilenko tried to solve namely this problem: the problem of the professionally expressed suspicion. Besides, it seems to be obvious that the legal concept of „immunity“ in the Ukrainian Constitution is common, i.e. this special concept (term) is applied equally to MPs, judges and, according to Article 105 of the Constitution, to the President of Ukraine.

So, if starting a criminal case against an MP does not violate his immunity (recently the Procurator General’s office started the criminal case against Yu. Timoshenko without any violations of her immunity), then the similar actions against the President must be interpreted in the same manner.

2. The accusation of judge Vasilenko of the „certainly illegal decisions“ may not be based on the demands of Articles 105 and 111 of the Ukrainian Constitution, since a judge of an appeal court have no right to solve questions concerning the concordance of laws with the provisions of the Constitution. In Ukraine (the country with the continental legal system) this question is beyond his competence.

That is why judge Vasilenko might and had to act in the framework of the usual combination of the laws (the Criminal Code (CC) and CPC) and the text of the Constitution. Yet, these laws not only permit to start a criminal case (if there are sufficient arguments) but also oblige the empowered officials (including judges) to do this.

Under other conditions judge Vasilenko might be blamed for using the law obviously contradicting the Constitution. Yet, this reproach should be appropriate only if the constitutional formulas in Article 105 and 111 were distinct or if the official interpretation of these articles existed prohibiting to start a criminal case against the President before obtaining the official results of parliamentary voting on the impeachment (at that the majority of MPs must vote „place it“).

However, the known circumstances of the case confirm that judge Yu. Vasilenko believed and continues to believe that the CPC and Constitution of Ukraine do not contradict to each other. Such position is his professional right and is a part of his standard judicial authorities.

3. The assessment of the facts and proofs, on which Yu. Vasilenko grounded the decision, is very important in this case. Yet, every Ukrainian judge has the right for his own assessment. At the same time, the question whether the CPC, which permits to start a criminal case against the President, contradicts to the Constitution may not be solved even by the Supreme Court (the Supreme Court has the right to doubt as to this and to introduce the corresponding application to the Constitutional Court), not to mention the Supreme Council of Justice. In other words, if the Supreme Court and/or Procurator General’s office think, that some articles of the CPC contradict the Constitution of Ukraine, this does not mean that this contradiction really exists.

As it is known, item 2 of the resolution of the Plenum of the Supreme Court of Ukraine of 1 November 1996 „On applying the Constitution of Ukraine for the implementation of justice“ reads that „judges must consider the contents of any law from the viewpoint of its concordance with the Constitution and, if needed, to apply the Constitution as an act of direct operation“. However, this thesis does not mean that any concrete opinion of the Supreme Court of Ukraine or the Supreme Council of justice on the agreement or disagreement of some articles of the CPC with the Constitution has the pre-judicial significance for a judge or other authorized officials starting a criminal case against the President. Such opinion only obliges the Supreme Court to readdress its doubts to the Constitutional Court of Ukraine and to wait for the decision. According to the Ukrainian legislation, the grounded judgment about the concordance of the laws to the Constitution is an exclusive prerogative of the Constitutional Court.

So, until the Constitutional Court takes the decision on the interpretation of Articles 105 and 111 of the Constitution or on the question of the agreement of the CC and CPC norms to Articles 105 and 111 of the Constitution of Ukraine, the opinions of any other state organs concerning the assessment of the juridical actions of judge Vasilenko as violating the immunity of the President will remain the mere exchange of viewpoints.

Moreover, as it follows from the structural principles of the Ukrainian legal and judicial system, the Supreme Court of Ukraine has no right to cancel a court decision because of the discrepancy between the law, on which the decision was based, and the Constitution, since the Supreme Court cannot know about this discrepancy before the decision of the Constitutional Court. This means that the Supreme Court can solve such legal conflict only if it is sure that the law (normative legal act) agrees with the Constitution. If the Supreme Court is sure that the laws do not agree the Constitution, it must request the Constitutional Court. Thus, the Supreme Court may not establish the fact of such disagreement independently, so it may not ground its decisions on this assumption. These arguments are also true regarding the position of the Procurator General.

Thus, the Supreme Court had the right to cancel the decision of judge Yu. Vasilenko by these motives only if this decision was based on the assurance of judge Vasilenko of the contradiction (disagreement) between the CPC and the Constitution of Ukraine. Yet, judging from the circumstances of the case, Yu. Vasilenko was sure of the contrary.

4. It is declared by the Ukrainian legislation and confirmed by the law-applying practices that any decision of the Supreme Court of Ukraine may not be regarded as a precedent and, strictly speaking, may not be a legal source. So, any reaction of the Supreme Court concerning the resolution of judge Vasilenko in the part estimating the constitutionality of some articles of the CPC will not (and may not) solve any problems.

That is why MPs or other authorized persons ought to hand to the Supreme Court the statement on the interpretation of the norms of Articles 105 and 111 basing on the circumstances of the case of Yu. Vasilenko. Then, perhaps, the Constitutional Court would be forced to recognize that the interpretation of the concept of immunity in the Ukrainian Constitution is too wide.

5. Judge Yu. Vasilenko is right also according to „the rule of contraries“. The procedure, after which a judge or every other official having the corresponding authorities must wait for MP’s decision on the beginning of the impeachment and then necessarily start the case, is an obvious violation of the CPC. Ukrainian legislation does not permit a judge or other official to start a case as a result of the voting in the Supreme Rada, but not according to his convictions.

Of course, it is possible and necessary to envisage the special procedure in the special law. Yet, constitutional norms are the norms of direct action; they work independently of the presence or absence of the concretizing law.

6. Besides, the KhG regards that any really legal system in any condition (perfect or not quite perfect) must, first of all, guarantee the protection of citizens from criminal encroachments. This is the root of every genuine national and sometimes public international law. That is why any crime must be stopped by all existing legal means. It seems, judge Yu. Vasilenko tried to do just this. The above argument follows from the universal understanding of the law as a system of equal and guaranteed protection of citizens.

We believe that, under the conditions of the procedural competition between the constitutional norms guaranteeing President’s immunity and the guarantees of the protection of citizens from the criminal encroachments, one must remember that President is a top official, that is a servant (and not a master) of the people. That is why, if the President commits a crime, it is population that must be protected in the first place, but not the President’s immunity. After all, the immunity is the form of protecting President from probable criminal infringements, but not the universal pardon of his probable criminal abuses.

In other words, it is most important to emphasize the legal sense (legal goal) of the constitutional institute of impeachment. The fact that the decision of judge Vasilenko did not take away the procedural guarantees of Article 111 of the Constitution, but presumed them, is also significant.

7. The argument of the opponents of this position (including S. Piskun, the Procurator General of Ukraine -- „Washington Times“, 26 October 2002), who contend that the criminal prosecution of the President of Ukraine, according to Article 105 of the Constitution, may be started only after his dismissal, is ungrounded since Article 111 of the Constitution reads that the only possible reason for the dismissal of the President according to this article is „the perpetration by him of high treason or another crime“.

The latter condition (that is the recognition that some action of the President is a crime) may be established by court only. This means that the initialization and investigation of a criminal case, as well as issuing the verdict, must be realized in the framework of the impeachment, since, according to the Ukrainian laws, the juridical fact of the participation in a crime may not be established without court verdict (the presumption of innocence is stipulated by the Constitution).

8. Some opponents of the position stated in this commentary regard that starting a criminal case against the Ukrainian President by a judge of an appeal court is not valid, since institution of a criminal case against an MP (whose political and legal status is lower than that of the President) is a prerogative of the Procurator General of Ukraine.

Individual critics reckon that, since the status of the Ukrainian President is much higher than the status of a usual MP, only the Procurator General have the right to start a criminal case against the President.

This position contradicts to the logic of the Constitution, according to which the Constitution is the fundamental tool for limiting the state power and the main guarantor against any usurpation of the power.

That is why the Constitution may not determine the procedure of bringing the President to responsibility as dependent on one state official directly assigned by the President (the Procurator General, in this case). The very essence of the separation of powers and of the constitutionalism as a whole is to structure, but not to consolidate of the institutes of state power. In this sense the Constitution is the main guarantor against any criminal plot (collusion) of the top authorities of the country.

Besides, taking into account the peculiarities of the nature of legal and political status of MPs, their activity (passivity) has mainly the local (regional) character. So, the initial criminal-legal assessment of their activity (passivity) is ascribed, by the rule of the structural balance of the power, to the competence of the Procurator General.

As to the actions of the President of Ukraine, they, from the viewpoint of the guarantees of constitutional protection, mainly have the character of the top power actions. Thus, according to the rule of realizing the mechanisms and counterbalances of the power, the right to assess the actions of the President on the local (regional) level looks legally and politically valid.

9. The probable subsidiary (political) motives of the professional activities of judge Yu. Vasilenko may be disregarded in this case, since they have no juridical significance. The essence is that he regarded the norms of the CPC and the Constitution as consistent. Here judge Vasilenko followed the court ethics, which must be taken into account by the Supreme Council of justice first of all.

Although some experts and state officials in Ukraine think otherwise, as we see, their opinions and their acts are not of great importance until the Constitutional Court issues the direct and unambiguous decision on this problem. And what is more, for judge Vasilenko these acts and opinions must be inessential even after taking such decision, since the new juridical reality will emerge (if any) only after this decision would become operable and this will not have the retroactive effect (including the effect on the professional life of judge Vasilenko).

On the discussion about the probable military operation against Iraq

Recently the chain campaign was conducted by the e-mail for collecting signatures against the war with Iraq. It is interesting that some of our respected colleagues, the activists of civil movement, refused to support this campaign. They motivate their unwillingness by the danger to become victims of the avalanche of computer viruses and the so-called spam. Such chain campaigns, they allege, are provoked by hackers for obtaining the great quantity of operating electronic addresses to use them for their future pastimes… I will not argue, maybe this is so. Yet, fortunately, neither my life nor life of my children are endangered by the spam or the Internet viruses. In contrast to the „humanitarian bombs“ and „intellectual cruise missiles“, which are just about to begin to fall on the heads of the people, whose only guilt is that they were born in a country with the odious political regime (by the way, there are several dozens of such countries throughout the world) and in the region alluring for other countries because of the Great Petroleum. So, independently of the fact whether it will result in the virus attack or no, I want to help these people at least by something! I am very disappointed with the „prudence“ of my colleagues, and most of all by the cynicism of V. Bukovskiy. I mean his remarks in the current issue of „PL“… I agree with almost all ideas expressed by E. Zakharov and I. Sukhorukova. However, there remains no time for reforming the UNO. I believe that everybody, who has any concern with the human rights protection movement, must utter their opinions as soon as possible. It should be well to discuss (VERY URGENTLY!!!) this problem in the electronic format, but the time is extremely limited.

I think that it would be reasonable to concentrate the attention on 2-3 basic concrete theses. For example:

The war endangers human rights in the region and in the whole world; it will become the development of the shameful futile Afghan military adventure of 2001.

Nobody has the right to risk the lives of peaceful population.

Military force may not be a universal method for solving international conflicts; there are other, more efficient, ways.

International agreements and the UNO authorities must respect all countries, and above all – the democratic ones.

ON THE PROBABLE WAR IN IRAQ: The opinions of human rights protectors

Vladimir Bukovskiy

I am not going to protest against war in Iraq. Why? Briefly:

•  Of course, we all prefer to end Saddam’s regime peacefully, but this is not going to happen. The West (unlike the former Soviet Union) has no means of changing foreign regimes. Therefore, in dealing with oppressive regimes, they consider only two options: either a war or a "peaceful coexistence". I personally spent hours persuading Mrs. Thatcher and Ronald Reagan that the Soviet system can be defeated peacefully (and not only I alone but many of our friends). It was very difficult, but we finally succeeded. So, in reality, the options today with Iraq are: either war or peaceful coexistence (which means cooperation). Would you prefer the latter?

•  The war in Iraq is not going to be as bloody as you think. Of course, any innocent life loss is horrible, but it will be numbered in hundreds, not in hundred thousands. Saddam is universally hated by most of his people, particularly by Kurds in the North and Shiites in the South. In general, the population is tired of his regime and will not be united in his defense. Many expressed their disappointment in 1991 that the Western allies did not finish him off.

•  There will be no World War as a result of attack on Iraq because most of the neighboring states hate Saddam. They might publicly protest showing Arab solidarity, but privately they will be happy. This is exactly what they do right now: protest publicly but privately encourage Americans to go ahead.

•  What are the consequences of NOT removing Saddam right now? It is reliably known that within 2 years he will have nuclear weapons. He already has chemical and biological weapons (thanks to Russia, Ukraine and Belarus). As soon as he has the nuclear weapons, all attempts at removing him from power will stop. The West will never risk a nuclear war, believe me. So, the West will engage in "appeasement" policy, like they did with Hitler and the Soviets. Would you like it?

•  Meanwhile, Saddam will blackmail the West with a threat of destroying Israel all the time, and will get whatever he wants. He will also blackmail Saudi Arabia into fixing the oil prices, or he will take over Kuwait again. Russia will benefit from this situation enormously (high oil prices are in the interests of both Russia and Saddam; Russia sells weapons to Saddam on a huge scale). Would you like this, too?

Thus, in my firm belief, a war with Iraq right now is a lesser evil by far. You may think I became too cynical after living in the West for 25 years. It may be so, but I do know the West far better than anyone in Russia. And my advice to you is not to protest against this war.

Inna Sukhorukova, the Kharkov Group for human rights protection

I believe that human rights protectors must publicly express their opinion on the possible military operation in Iraq. First, it endangers human rights and, secondly, it is a part of the global humanitarian problem, for the solution of which the mankind is not ready yet, as the last 10-15 years have proved.

The following aspects of the situation around Iraq seem to be the most disturbing.

a) The danger of the totalitarian regime of Saddam Hussein was obvious from the very beginning, but it became absolutely clear after Iraq invaded to Kuwait. Why Hussein was not dismissed from his post during the operation „Storm in the desert“? What political standards did not allow to do it? Why the USA brought up the question about the danger of the terrorist regimes only after the events of 11 September?

b) Why the discussion concerns all the time the violations of the UNO resolution by Iraq, and not the most important question: the obvious potential peril of the regimes similar to the regime of Hussein or of the talibs in Afghanistan? It is evident that anti-democratic regimes can violate the international agreements and common norms at any time. The closeness of these countries, absence of any freedoms and legal opposition mean unambiguously that the countries like Iraq are the delayed-action mines. In this situation the use of force for liquidating the totalitarian regime is justified, but the decision about this must be taken by the UNO, but not by USA only. Yet, the Security Council of the UNO continues to work according to the former situation, when the world was bipolar and the main task of the mankind was to prevent the third world war.

c) Iraq is not the only country that is potentially dangerous. Other countries with nontransparent economy, internal and foreign policy, where the fundamental freedoms are permanently abused, may be also related to this risk group. From this viewpoint the attack at the parliamentarism and opposition in Ukraine or the suppression of the freedom of speech in Russia (not to mention the war in Chechnya) must worry the world community not less (and, taking into account the geopolitical role of our countries, even more) than the situation in Iraq. However, one can observe no reaction to these phenomena neither on the side of the USA nor on the side of the European Union.

It is noteworthy that in case of the war in Iraq, as well as during the military operation of the USA in Afghanistan, the peaceful population will be the main victim. There is a way to avoid this. The UNO should take the decision obliging all countries being members of this organization to terminate all economic and political relations with the dictatorial regime, and the UNO (NATO) troops should block the country-offender with the concrete demands – to change the character and form of the power. And only if the country ignores these demands, it would be reasonable to apply force.

The dictatorship of Hussein snuffed out the lives of a number of Iraq citizens, and this is a sufficient reason for the overthrow of the dictator.

The fundamental changes of the UNO structures are needed, since the old structures are already ineffective in the modern world. Nowadays the UNO has no instruments for solving such questions. That is why the USA must assume the decisions. Such situation is dangerous, since this country can become accustomed to using force methods and taking decisions regardless of the world community. That is why I am sure that reforming the UNO structures, creating the mechanisms for fighting the violations of fundamental human rights is the only way out from the dead end, where we have get.

So, let us sum up: the existing UNO structures, methods and principles developed for observing human rights in separate countries are obsolete, and this makes the USA to take upon themselves the unpleasant role of world peacemaker. The USA may do this without a resolution of the UNO Security Council only if they prove that the actions of that or another country threatens the safety of the USA. The inefficiency of the UNO allows the totalitarian regimes to exist during dozens of years, and the weak democracies slip into the totalitarianism, which threatens the entire world community.

I think that it should be advisable to compile the appeal to the UNO from the human rights protection organizations, which support this point of view.

Evhen Zakharov, the Kharkov group for human rights protection, „Memorial“

I reckon that that it is necessary to make public the attitude of human rights protectors to the possible military operation by USA in Iraq. Firstly, this operation threatens human rights not only in Iraq. Secondly, this is an element of the old general problem: whether force methods may be used for realizing good intentions? When it is admissible to apply the so-called humanitarian interference in the affairs of a sovereign state? There were many examples. In 1827 the Great Britain, France and Russia interfered in the internal affairs of the Ottoman Empire to protect the rights of Greek population. This conflict described by Byron resulted in the restoration of the independence of Greece. In 1860 the group of European countries tried to prevent the genocide of Christians in Syria. In 1878 Russia participated in the Balkan war to save the non-Moslem population of Balkans from Turks. And nobody rendered the assistance to Armenians in 1913.

Thus, if to regard the principle of obeying individual rights as primary, then the interference in the internal affairs is admissible and righteous in the cases of brutal mass violations of human rights, such, for instance, as ethnic or religious purges. Yet, this interference must not evoke the greater violence. It must be directed only against the source of the violations and must not concern the peaceful population and civil objects.

Here many questions appear at once: who and how will decide whether the interference is needed, according to which procedure this decision will be taken and, at last, who and how will realize this interference? Even a fleeting glance at the events of recent years proves that the thesis on the humanitarian interference for the protection from the most brutal violations of human rights is not always applied; this depends, first of all, on the political situation.

In 1999 the countries of the NATO bombarded Serbia to save the Kosovo Albanians from ethnic purges. Yet, they wink at the genocide of Kurds by Turks, since Turkey is a member of the NATO. Russia wages the war against the Chechen people, but the West almost does not react to this struggle with terrorism in the Russian style, especially after the events of 11 September. Western governments also do not pay attention to the brutal violations of human rights in Tibet: China is too great and powerful. And Uganda, for example, is merely uninteresting for the Western politicians. Such policy of double standards undermines the confidence in the Western world and the very idea of human rights as the basic value.

It seems obvious that there are no unambiguous norms in the international legislation that would allow to draw the conclusion about the necessity of humanitarian interference. There are also no intergovernmental organs, which could consider such problems impartially and to issue the corresponding decisions.

The bombardments of Serbia were endorsed by the Western public, who regard Miloshevich as modern Hitler. At the same time, many political figures, including the Russian ones, blamed the NATO for the violations of the international right, and these reproaches were true. Yet, as Sergey Kovalev correctly said, right is not an end in itself and not a religious dogma, but it is a tool for achieving justice and safety, and the legal norms of right are worth something only if they guarantee human rights, freedoms and dignity. Yet, the legal vacuum is very dangerous here. It is necessary to design the criteria defining whether the domestic policy of a state is criminal, and whether international sanctions, up to military intervention, are needed. So, the new intergovernmental organ is needed able to consider such problems impartially and to issue the decisions that will be executed. Unfortunately, the UNO Security Council, as well as its other organs, cannot fulfill these functions. And the executive structure must be created at last that will be able to execute these decisions, and this structure must be more powerful than national armed forces. In other words, the international rights require the considerable renovation.

Let us try to apply the above-stated logic. To approve the military operation of the USA against Iraq either the resolution of the UNO Security Council is necessary or the very convincing proofs confirming that the passivity will result in the mass brutal violations of human rights. In my opinion, this question is still open. Yes, it seems that the crimes of the regime of Hussein justify the military operation. But I have some doubts, since the opinion of the American public on this question is not unanimous, and all my acquaintances, which live in the USA, protest against the application of the military sanctions against Iraq.

The impression is formed that we have not enough information to take the decision whether to endorse the military operation or to protest against it. Was the connection established between the terrorist acts of 11 September and Hussein’s regime? Are the violations of the UNO resolutions by Iraq serious enough? May one hope for the positive changes of Hussein’s regime? Here are many other questions having no evident answers.

In the current situation I should not hurry to express my opinion, I want to get the answers before.

There may not be the common opinion concerning this problem, so it is senseless to try to formulate such opinion. Yet, it should be advisable to express the doubts openly and to put the necessary questions. The efforts are needed directed at the development of the criteria of the permissibility of military interference.

Freedom of expression

A partner of the publishing house „Taki spravy“ is still staying behind the bars

On 21 December the judicial chamber in charge of criminal cases of the Appeal court of Kyiv considered the complaint of advocates Bogdan Ferents and Valeriy Kornilov against the verdict of the Solomenski court of Kyiv concerning Valentin Romanov, a partner of the publishing house „Taki spravy“. The court satisfied the complaint partly. „We are not contented with the decision of the Appeal court“, said V. Kornilov, „and we are going to lodge the cassation. In our appeal complaint we asked to change the verdict by closing the criminal persecution of V. Romanov according to Articles 27 part 5, 212 part 3, 336 part 2 and 205 part 1 of the Criminal Code of Ukraine because of the absence of corpus delicti“. The court decided that Romanov’s actions were committed after the preliminary agreement with a responsible representative of the publishing house „Taki spravy“. „This is an absurd. This court decision will be the basis for the retrial“, V. Kornilov stated.

V. Romanov was condemned to six and a half years of incarceration. His advocates believe that the verdict of the district court contradicts the demands of Article 323 of the Criminal-Procedural Code, is illegal and groundless. It happened because of the narrowness and imperfection of the investigation, discrepancy between the actual context of the case and the conclusions of the court, serious violations of the criminal-procedural laws, incorrect use of the criminal legislation, disproportion between the gravity of the offence and the imposed penalty.

22 January 2003

The fund „Opened society“ intends to turn to the Supreme Rada in the connection with making secret the information about the attendance of MPs at their working place

The fund „Opened society“, which conducted the analysis of the work of MPs in 2002, could not obtain the information how the people’s representatives attend their working place – the session hall.

Oksana Griaznova, the president of the fund, told at the press conference in Kyiv that this information had been blocked since December 2002 and removed from the official site of the Supreme Rada.

The correspondent of the center „LIGA“ communicates that the administration of the fund are going to turn to the Parliament with the request about the reasons of making this information secret.

28 January 2003

Prohibition of discrimination

New protest actions in Odessa

On 27 December the activists of opposition political parties and organizations again went into the Odessa streets. They protested against the recent increase of the tariffs for communal services. Today the special session of the city council was held in the building of the Palace of sailors. The session was guarded by militia cordons and a correspondent of radio „Liberty“ had many problems trying to get to the session. It appeared that journalist’s ID is not regarded as documents by militiamen. They obeyed only one law – the order of an official from the oblast executive committee…

The picket was organized by such public organizations as „Ukrainske bratstvo“, „Gromadskiy kontrol“, party „Batkivshchina“ and Ukrainian Republican party „Sobor“. They distributed the appeal among the deputies of the city council, in which they demanded to cancel the decision about the increase of the payments. One of the participants of the picket, Natalya Chaychuk, a deputy head of the oblast organization of the party „Reformy i poriadok“ , said: „Nobody proved that the tariffs for the communal services must be such. And the fact that the anti-monopoly committee lodged the request concerning this decision means that the decision of the local power was unauthorized. My reaction will be simple – I will not pay. My flat is privatized, and it will be curious to observe how Ruslan Bodelian will move people from their own flats. The policy of the local authorities does not meet the interests of the city dwellers“.

The picketers carried the slogans: „Odessa city administration is an enemy of people“, „Bodelian, why the fares in Odessa are higher than in other Ukrainian towns?“, „The Odessa city council is the vanguard of the genocide against the Ukrainian people“… Meanwhile, the deputies of MPs Eduard Gurvits and Andrey Shkil, with scandal and problems, managed to seep to the session. But in vain. The deputies of the city council did not cancel their resolution. Well, it was a quite original New Year present to the city dwellers!


The Minister of Interior dismissed the head of the preliminary prison of Simferopol

Communication of the clipping service of the Ombudsperson

On the application of the ombudsperson Nina Karpacheva concerning the protection of constitutional rights of the detained and arrested in the Crimean Autonomous Republic, the Ministry of Interior of Ukraine undertakes the measures the improvement of the situation.

In November 2002 the ombudsperson conducted the revision of the observance of human rights and freedoms of the detained and arrested in the Simferopol preliminary prison and cells in the Kyivskiy and Central district precincts of Simferopol.

During the visit to these establishments it appeared that the upkeep conditions did not meet the elementary sanitary norms. The detained kept in the precincts were not nourished at all, and those, who stayed in the preliminary prison, got the food 1-2 times a day.

The relatives of the detained were not informed in proper time, and the parcels were regarded by I. Shpotenko, the head of the prison, as superfluous trouble.

The inspectors also revealed the cases of cruel treatment of the detained and of impeding the detained to meet their advocates. In particular, cruelty and humiliation were applied to Evpatoria journalist Volodymir Lutyev who stayed in the preliminary prison at that time.

In spite of the fact that Lutyev is an invalid of the second group, he was placed to one of the worst cells, he did not obtain any medical aid, and on the day, when he was transferred to the prison, his hear was cut against his will (at that the hair was cut very inaccurately and the skin was damaged).

At the parliamentary hearings on the problems of the freedom of speech in Ukraine, which were conducted at the beginning of December 2002, ombudsperson Nina Karpacheva drew the attention to these facts of humiliating the human dignity. She regarded such treatment of the journalist as a new method of the suppression of the freedom of speech, which is one of the basic constitutional freedoms.

All in all, Nina Karpacheva reckons that the conditions of the upkeep of the detained and arrested violate not only the national legislation, but also the UNO Convention against torture and other cruel, inhumane or humiliating treatment and punishment ratified by Ukraine on 26 January 1987, as well as the European Convention on the protection of human rights and fundamental freedoms ratified by our state on 17 July 1997.

Therefore ombudsperson turned to Minister of Interior Yuri Smirnov with the application demanding to tale appropriate steps for liquidating the discovered violations. The demands of the ombudsperson completely agree with the recommendations of the European Committee against torture, the representatives of which visited Ukraine at the end of last year. The representatives of the committee checked the conditions in some penitentiary establishments, where the detained, arrested and incarcerated persons are kept.

In its respond to the application of the ombudsperson the administration of the Ministry of Interior of Ukraine informed that four top militia officers were brought to disciplinary responsibility for the shortcomings in fulfilling their duties. In particular, major I. Shpotenko, the head of the preliminary prison was dismissed from his post, lieutenant colonel L. Kirichenko, the head of the department of administrative service of militia, was downgraded, colonel A. Protsenko, the head of the Simferopol militia directorate, was severely reprimand, lieutenant colonel M. Buyko, the acting head of the Crimean department for guarding public order, got the warning about the imperfect service compliance.

The main directorate of the Ministry of Interior in the Crimea takes the appropriate measures for bringing the preliminary prison into accord with the prescribed demands and standards. The metallic shields placed on the inside of the cell windows are dismantled, the reconstruction has begun for equipping the cells with the individual bunks, the convicts obtain three meals a day at the expense of the off-budget funds. It is also planned to reconstruct the cells in the Kyivskiy and Central district precincts of Simferopol during this year.

Taking into account the fact that the cells in the precincts are often used not properly, the Ministry of Interior directed the orders to all regions of Ukraine, including the Crimea, categorically prohibiting to use these cells for the preliminary incarceration. The ombudsperson more than once drew the attention of law-enforcing organs to these violations, pointing out that it is illegally to keep the detained in the precinct cells for more than three hours. Such practices violate the Ukrainian laws and the international standards, since such cells are not fit for longer stay. The above order of the Minister, Nina Karpacheva believes, evidences that since now militia will strictly observe the national legislation on these questions.

Taking into consideration the lack of the budget financing assigned for the reconstruction of the special militia establishments, Minister of Interior Yuri Smirnov turned to Prime-Minister Viktor Yanukovich with the request about the assistance in obtaining the financial aid from the local organs of state power for the improvement of the upkeep conditions in the special establishments and the precinct cells. In this connection, on 24 December 2002 the Prime-Minister of Ukraine recommended to the Council of Ministers of the Crimea, to regional administrations, as well as to Kyiv and Sevastopol ones, to render such aid up to 1 March 2003.

The top officers of the Ministry of Interior of Ukraine expressed the gratitude to the ombudsperson for the attention devoted to the urgent problems of the Ministry. They pointed out that such not indifferent attitude to the problems promotes the creation of the really democratic society in Ukraine.

. On 14 January the sitting of the collegium of the Main directorate of the Ministry of Interior in the Crimean was hold. The participants of the sitting discussed the problems arisen in the application of the ombudsperson. Meanwhile Nina Karpacheva continues the plan revision of the observance of the rights of the detained and arrested in the Crimean Autonomy.

Deported peoples

Sergiy Naboka…

In the early hours of the morning of 18 January in Vinnitsa our friend and colleague Sergiy Naboka died. And now only in our memory we will be able to see his smile, to hear his exact and profound estimations of the events, to feel his hand on the shoulder and to hear his energetic „Yes!“. He was a very tolerant person – absolutely different people gathered at his funeral. Yet, it was very different for him to coexist with the today’s contempt to people and their freedom, with the disdain to everything Ukrainian. Sometimes he lost his temper, and in such moments he was ready to take a gun to his hands. The burden of the negative information was too heavy for him. Maybe, this was the reason why his heart failed – the heart of a poet, through which all crack of the world passed…

I know that he should reproach me for this „lofty style“. But this is a truth.

Evhen Zakharov

Journalist, poet, dissident, organizer of the Kyiv democratic club and the Ukrainian culturological club Sergiy Naboka was born on 26 April 1966 in the town of Tula in the family of journalists. Later his family moved to Kyiv.

Sergiy began to read freely since he was five years old. When he was 13-14, he read the work by Lenin „State and revolution“, after which he became a staunch anti-Soviet and anti-communist. Afterwards he read the textbook „History of the UkrSSR“. This textbook generated many questions, to solve which he had to read other open and „recommended literature“. In these books Sergiy disclosed „a tremendous deposits of brazen lie“.

Sergiy was strongly impressed by the arrests of the people, who came to Taras Shevchenko’s monument on 22 May 1972. In general, Sergiy lived like other young people of this time, but he also listened to the foreign radio and participated in the political discussions. Maybe this was the reason why Naboka was enlisted to the army, although he was not-able-bodied. He served in a building unit in different places.

After the demobilization Sergiy Naboka was a student of the faculty of journalism of the Kyiv University (1976-81). He worked as a literary editor in the publishing house „Mystetstvo“. The general atmosphere in the country was depressing, this was the bloom of the zastoy(depression) period. Sergiy met his former schoolmates, he felt the necessity to undertake some activities. In 1979 Naboka became a co-founder of the Kyiv democratic club, where they organized philosophic and religious seminars, interchange of books and the literary discussions.

As Sergiy himself told, the kernel of the club consisted of those, who wanted to do something, the second layer – of those, who wanted to be present, and the third level – of those, who did not want to act and were afraid of everything, but who were curious about the club activities. All in all, the club gathered 40 or 50 persons.

The members of the club were certainly tailed. When five club members, on the eve of the day of Ukrainian political prisoners, tried to distribute the leaflets that read „Compatriots! 12 January is the day of Ukrainian political prisoners. Let us support them!“, the arrests began. All in all, four persons were arrested for this.

On 11 January 1981 Sergiy Naboka was arrested too. Along with the distribution of the leaflets he was accused of writing „slanderous“ verses and articles, participation in compiling the manifest on the internal policy of the USSR and the text „Perspectives of infilling the spiritual vacuum of the Soviet society“. According to Article 187-1 of the Criminal Code of the UkrSSR S. Naboka was condemned to 3 years of incarceration. He served the sentence in the criminal camp No. 78 (the village of Raykivtsy, the Khmelnitska oblast).

After the release in 1984 Naboka returned to Kyiv and started the religious activities. For a year he worked as a janitor in the Kyivo-Pecherska Lavra, then as a librarian and loader. During the perestroyka he took part in the restoration of the Ukrainian Autocephalic Orthodox Church (UAOC). Sergiy was proud that the UAOC community organized by him and his associates was the first in Ukraine.

In 1987-1989 Sergiy Naboka was the organizer and head of the Ukrainian culturological club. Later the club joined the Ukrainian Helsinki Group (UHG).

In 1989 Sergiy edited the independent newspaper „Golos vidrodzhennia“ („The voice of renaissance“. Although it was advertised that this was a newspaper of the UHG, the UHG practically did not participate in the edition. Sergiy and his wife made up the newspaper, printed at their own expense in the Baltic republics and distributed in the downtown of Kyiv.

Since 1989 Naboka worked as the commentator at the radio „Liberty“. He also was a co-founder, co-owner and the general manager of the Ukrainian independent information agency „Respublika“ („Republic“). Since 1994 Naboka was the President of the Ukrainian media club and the main editor of the press-center „Gariacha liniya“ („Hotline“). For some time Sergiy Naboka was a presenter of the night broadcasting of the TV company „Era“.

In memory of Sergiy Naboka

The eve of the Epiphany was darkened by the grief news: Ukraine lost Sergiy Naboka…

I was not acquainted with Sergiy Naboka personally, I knew him by his publications and appearances by radio and TV. In spite of this I was painfully stricken by his untimely decease. I do not like the stilted speeches, but today I want to say: we lost an extraordinary man, the model of professionalism and civil consciousness.

Journalist Naboka seemed to repeat the worlds of poet Irina Ratushinska: „No, my Ukraine is not dead! Do not bury her!“. He gave exact, sarcastic and sometimes even mocking definitions of the events and personage of the modern Ukraine, every his word was permeated with the remarkable intellect, dignity and respect to everybody, with the calm confidence in the victory of common sense. And he was not afraid! He was not afraid to be a Ukrainian, to call a spade a spade, to declare openly that he understood all „petty ruses“ of the politicians. Sergiy behaved as a free person in free country, and urged us to follow his example.

Sergiy Naboka left us, but I trust: his Ukraine remained in the hearts and souls of his numerous readers and listeners. And this is the moral ideal, from which the noble and humanistic Ukrainian National idea will spring up.

Viktor Dzereviago, an engineer

“Prava Ludiny” (human rights) monthly bulletin, 2003, #01