“Prava Ludiny” (human rights) monthly bulletin, 2003, #11

Taking into account the character and the probable consequences of the political declarations, actions and events in Ukraine, which took place lately in the context of the official and social-political initiatives, the Kharkov group for human rights protection (KhG) considers necessary to comment the current political situation in the country.

The KhG reckons that the campaign of the intensive political support of the constitutional reform has been the most important recent political action of the Ukrainian state power. Regarding the reform and separate forms and methods, which are used by the governmental structures of Ukraine for the popularization of the reform, the KhG wants to declare the following.

The constitutional reform, in its present form, does not correspond with the real interests of the Ukrainian people either from the viewpoint of the present time or the abstract perspectives of state politics. The reform is inconsequent from the angle of the organizational methods, insincere from the angle of moral and political substance, thoughtless from the angle the normative-legal qualities and not predictable from the angle of the potential social and political consequences.

In fact, the attempts of the power to break the Constitution of Ukraine began in 2000, when the all-Ukrainian referendum “after public initiative” was organized. Then, as everybody knows, the reform was directed at the abrupt and rough strengthening of the authoritarian principles in the state government and the consolidation of the political system of the country, which, by the way, had been already too centralized.

This attempt appeared to be politically shortsighted, legally raw and morally adventurous. So, it is not surprising that the assessment of this attempt by European political structures and experts was extremely negative, and the power could not convince the Ukrainian population of the advisability of the proposed changes.

Thus, the referendum of 2000 was directed at the illegitimate strengthening of the Presidential branch in the country, it envisaged the contraction of the constitutional principles and democratic institutes, it violated the guarantees of social stability and was aimed at the destruction of the traditional structures of Ukrainian parliamentarism. The conduction of the referendum was accompanied with the mass application of administrative coercion, intimidation of people, neglect of the political, and sometimes also personal, rights and freedoms of citizens.

Therefore, the parliamentary failure of the referendum-2000 was a positive democratic phenomenon, which should become a serious political warning for the power. At the same time, this failure proved that any aggressive authoritarian ambitions are unacceptable in Ukraine.

However, the process of extermination of the political monopolism in Ukraine is very difficult and slow, and the time is inexorable. Soon after the failure the institutes of state power noticed the lack of public support and other symptoms of the degradation of their moral and political image. The rate of the discredit of the inconsequent and insincere state politics in Ukraine was more rapid than the authorities could imagine.

The criticism of the activities of the power by the political opposition was very acute, and the social-economic and financial situation in the country did not improve essentially. Mass media irritated the authorities with the publications about their errors, so, earlier or later, the officials resorted to rudeness, violent actions and the attempts of the open political engagement of law-enforcing organs.

The necessity of real political reform became obvious, the reform directed at the essential rotation in the political and economic elites of the country, or, maybe, even at the replacement of the government. The energetic crisis and the menace of the total financial-economic collapse of the country resulted in the unpopular stuff surgery and the financial readjustment in the sphere, which had been inviolable earlier.

As a result, Yu. Timoshenko and V. Yushchenko, who had been invited to the government as “political rescuers”, were dismissed from their posts. The situation also deteriorated because of the mass corruption and bureaucracy at all vertical and horizontal lines of the power. This deterioration became especially obvious during the “cassette scandal”.

Somehow or other, the truth about the murder of journalist G. Gongadze, as well as the contradictory facts and evidences connected with this crime, were concealed from public. This fact symbolized the impunity of the power and, according to the rules of political grotesque, became the stimulus for open administrative arbitrariness both in the center and in province.

The dismissals of prime-ministers and general prosecutors became usual in Ukraine and, finally, the people stopped to take these dismissals seriously. The separation of the Parliament to the “constructive” majority and “hostile” opposition evidenced not only about the moral perturbation in the souls of national leaders, but also about the total crisis of the political management in the country. Moral pillars began to swing.

 At last, the officials understood that it was impossible to break directly the constitutional mechanisms of democracy including the principle of commutation of the basic institutes and the election principle. Just then, we believe, the government acknowledged the idea of the referendum to be inefficient, so it was replaced with the idea of the parliamentary constitutional reform.

At that time the political power felt itself somewhat injured, but still administratively strong, so the constitutional innovations increased the authority of the President again. The new model of the constitutional redistribution of the top competences should be more centralized than the power structure of 1996, but the factual widening of the Presidential authority was masked with the representation of regions, two-chamber structure of Parliament and democratization.

However, two German students published in the Internet and in human rights protecting press the legal analysis of the legal ruses, and this analysis debunked and ruined the juridical casuistry of the Ukrainian academicians of law. At the same time, one should recognize that President’s version of the changes to the Basic Law was intended for more politically considered and procedurally careful type of the conservation of the top political elite, in comparison with the previous initiatives, in particular referendum-2000.

In order to impart the likeness to legitimacy to the constitutional reform, public meetings and discussions were coercively organized, as well as the collection of the propositions of the population in trains and other public conveyances. Besides, we also want to mention the theoretical consecration of the two-chamber system and factual restriction of the principle of independence of court power branch on the scientific level.

Yet, neither the reports from the public meetings nor the support of the morally raped science of law could save the constitutional idea, which was effectively represented, but was tottering in essence. In spite of its spectacular image, the campaign of the scientific support became another failure of the national doctors of law in the opinion of the Ukrainian society, Ukrainian diaspora and Eastern experts in law. Finally, even the President himself acknowledged that this idea was unsuccessful and recalled his draft from the Constitutional Court.

The hopeless initiative was   buried by its authors, and another, absolutely new, idea of “Ukrainian oprichnina” was entered to the agenda. Just as Ivan IV the Terrible, being “aggrieved” with the lack of political understanding, resorted to the pretended self-expulsion, Leonid Kuchma broke off his constitutional “conditions”.

The internal logic of this political trick is evident and consists, in our opinion, in the recognition by state officials of new political and economic realities: the summer shortage of grain and the forced devaluation of hryvna. Since the presidential election will be conducted rather soon, and the brutality of the political pressure on the opposition deprives the power of the hopes for pardon, the third model of the way out from the dead-end appeared almost automatically.

In other words, the top authorities realized that the opposition might win at the future election, so they decided to transform the constitutional post of the President of Ukraine to the political and juridical fiction. So, if they would have to cede the post to the opposition, they would try before to turn this post into nothing.

So, if the first versions of the constitutional reforms were grounded on the wish of the top officials to increase and prolong their political influence, then the last model of the Ukrainian political reform appeared to be just another attempt to save the sinecures by means of degradation of the subjects of competence of the strongest political institute of the country. We mean, naturally, the competence of the President of Ukraine, the competence that should be used for the conduction of the radical and efficient changes.

At the same time, there were some exceptions, which confirmed the rule. We mean the constitutional request of 53 MPs about the official interpretation by the Constitutional Court of part 3, Article 103 of the Ukrainian Constitution, in which the election of Kuchma for the third term is debated on the top legal level. The Ukrainian science, which is already intimidated by previous initiatives, has been invited again for the legalization of this juridical absurd. The scientists of the Academy of Law managed to repulse the first attempt of justification of this legal nonsense. Yet, the KhG knows that the Academy gave up on the second stage of the “competition”.

To the credit of Leonid Kuchma it should be said that he did not endorse this initiative. Yet, the political claqueurs are irrepressible. It is difficult to predict, what decision the Constitutional Court will make.  In 2000 the Constitutional Court demonstrated the instinct of self-preservation, but since then the composition of the Court has partly changed, and the judges got some additional stimuli in their work. It seems that this time the judges would have to take some decision.

However, the prognosis shows that if the Constitutional Court would support the idea of the election of the President for the third term, and the Academy of Law would endorse the Court legally, then, some time later, the opposition would have to disband both the Constitutional Court and the Academy of Law.

Yet, today the question on the reform is much more serious, since the matter concerns the radical change of the Ukrainian constitutional system as a whole. At that it is unimportant whether this will happen because of the political motives or because of the pathological fear of the top authorities before the opposition. Even a slight anxiety of the government about the opportunity of passing the power to the “bad hands” can result in the political uncontrollability and the administrative destruction of the entire society.

It is obvious that, without a competent President, Ukraine would be diplomatically helpless both before her Western and Eastern neighbors. Ukraine has no stable parliamentary traditions, so she can get to the situation, when not a single political decision would be taken because of the inconsequence of the parliamentary debates. Thus, in order to give no real authorities to their successors, the top officials risk with the political balance in the country.

Ukraine has not passed through a “velvety” revolution yet, and the political disturbances, which took place in the “Ukrainian House” under the direction of V. Medvedchuk, did not resemble the “frank denunciation of lie and balancing the accounts of the previous work” (D. Merezhkovski”).

Yet, in spite of a number of political falsifications and juridical fictions that occurred during the years of independence, Ukraine preserved the ability to reform and develop without blood and victims. For more than 10 years we managed to adhere to the evolutional strategy of development.

For example, the Ukrainian people are realizing more and more the real scope of the famine of 1932-33. Positive changes can be also observed in the moral and political assessment of the national liberation movement in Ukraine, events of the Ukrainian history during and after the WW2 by the population of the Eastern Ukraine. Yet, all these mental and humanistic achievements may be lost soon, if the power would continue the irresponsible detriment of the principles of national constitutionalism.

Now, in order to prevent the access of the opposition to the power, the authorities began to block even traditional political and personal rights. Some strangers in the uniform of special services use to restrict the freedom of MPs. At the same time, legal demands of the MPs are regularly ignored by the local militia.

According to the political orders from the top, representatives of state power, MPs, are divided to “correct” and “incorrect” ones. The cases are frequent, where the Ukrainian constitutional and administrative right stops to function as a juridical regulator. Not only MPs, rectors of higher education establishments and businessmen are divided after the political principle, but the society as a whole.

The policy of censorship and informal use of “temniks” are practiced in mass media and at TV. The main TV channels are silent not only about the political actions of the opposition, but also about the actions and critical speeches of the ombudsperson.

On this background the political games (connected with the constitutional reform) for preserving the economic and political influence, seem to be not only extremely immoral, but also dangerous for the nation. We reckon that the ruling circles are ready to destabilize the country only because some persons do not want to lose their influence and privileges. With this aim the authorities artificially organized recently the “public forum” in Kharkov. By their intention, this gathering had to become the evidence of the nation-wide support of the idea of reshaping the Constitution, the auxiliary way of legitimating the anti-constitutional shady activities.

It is noteworthy that the composition of the “public forum” was appointed by power structures beforehand, and the participants were selected among the persons, who were directly dependent of the power because of their posts or other reasons. The adherents of the reform were recruited after the principle of belonging to the “bureaucratic class” (M. Weber). At that, it was unimportant whether the speakers knew the essence of the matter. The date of the forum and the list of the participants were not published beforehand. As far as we know, the speeches of the participants were pre-arranged and predictable.

The Ukrainian population is not informed about new versions of the constitutional changes and amendments, so all information is got from the expressive speeches of S. Gavrish, the mouthpiece of the constitutional reform. His speeches are very florid, but the ideas presented by him are extremely politically and legally flippant.

Taking into account all above-mentioned facts, the KhG wants to express the moral and political warning to the power. Ukraine is a young democratic country with very contradictory political history. The political development of Ukraine in the 20^th century was, as everybody knows, tragic. The country survived several revolutions, the civil war, national liberation movement, series of the constitutional epochs and political regimes. The achievements of the Central Rada were “corrected” by Hetman regime, and the government of P. Skoropaski – by the Directory. After this Bolsheviks conducted the mass repressions, the echo of which is still heard in the Transcarpathian regions. According to T. Gunchak, the proportion of the Ukrainians, who perished in the 20^th century, is the greatest in Europe, except Poland.

So, the relative political stability is an accidental and fragile gift of Providence, which is possessed by two, or maybe three, generations of Ukrainians. And this stability is now undermined with the fear, short-sightedness, self-conceit and egotism of the power.

On the “first wave” (S. Gantingtone) of the post-war European democratization, Ukraine more or less accepted and adapted to her conditions the values of the world liberal-democratic constitutionalism. Although the Constitution of 1996 was adopted on the wave of civil enthusiasm and appeared to be rather naive and sentimental, its humanistic and legal resources are far from exhaustion yet.

Certainly, our Basic Law must be improved. In particular, the President should be not only a politically competent person, but also a person legally responsible for the actions of the government headed by him. The quotas of voting at the impeachment procedure should be decreased, and the social-economic rights should be corrected towards the real guarantees, etc.

Yet, the conception of the constitutional reform, which is proposed today by the operating power (election of the President by Parliament, essential narrowing of President’s authorities concerning the government, etc.), does not improve, but deteriorates the Basic Law. This conception restricts the political controllability of the country, “infects” the executive branch with the parliamentary dissensions. The reform is equally insincere from the moral-political viewpoint, since, on the background of the declarations about democratization, it decreases twice the possibility of free expression of citizens’ will.

The draft of the constitutional changes not only decreases the amount of the election rights of the Ukrainian citizens, but also contradicts the principle of direct election, which is stipulated by Article 71, Section III of the Constitution of Ukraine. Yet, the provisions of this section serve as the juridical guarantee against the usurpation of citizens’ right to determine and change the constitutional order, these provisions directly protect the inviolability of state sovereignty.

The fact that the Constitutional Court of Ukraine ignores the anti-constitutionality of the suggested reform is the most dangerous moment from the political and legal points of view. In fact, the Court gave its blessing to the power. Thus, the Constitutional Court deliberately disregarded the demands of Articles 71 and 157 of the Constitution; this fact proves that the level of the political hypocrisy in our country reached the critical limit again.

The further movement in this direction will provoke the uncontrolled political processes in Ukraine. Just such situations resulted in “velvety” revolutions in Eastern and Western Europe. If something similar would happen in Ukraine, then the power would not have either time or energy to swagger about its wisdom and achievements. Some time ago W. Jaruzelski introduced the state of emergency in Poland in order to save his clique and the communist regime as a whole. Now such attempt is made in Georgia. The Ukrainian power wants to conduct the constitutional reform, but the goals are similar. Everybody knows, what was the result of the “rescue operation” of Jaruzelski: the ring-buoy appeared to be leaden, so the ship went down even faster. Yet, who now recalls W. Jaruzelski?

On 4 November 2003 the Kharkov group for human rights protection turned to law-enforcing organs with the demand to stop the brutal violations of fundamental human rights in the case of O. Nechaev, who was detained on 14 October 2003 in Simferopol. The KhG asked all its regional partners in the project “Campaign against torture and cruel treatment in Ukraine” to endorse this appeal.

To the Ministry of Justice of Ukraine

To the Ministry of Interior of Ukraine

To the prosecutor’s office of Ukraine

To ombudsperson of Ukraine

The Kharkov group for human rights protection has the information that on 14 October 2003 Aleksey Nechaev was detained in Simferopol on the basis of the permission issued by the Pecherskiy district court of Kyiv according to part 4 Article 165-2 of the Criminal-Procedural Code of Ukraine.

According to our data, Nechaev is still kept in the Simferopol preliminary prison. He was not taken to a judge for the check of the legality of the detention. Nechaev’s relatives were not informed either about his detention or about the place, where he was kept. The advocate was not admitted to him during four days.

We also learned that the detention of O. Nechaev interrupted his treatment in the Alushta town hospital. The treatment was connected with chronic diseases of internal, and in custody Nechaev cannot get the adequate medical aid.

The Kharkov group for human rights protection is extremely alarmed with the complex of brutal violations of the Ukrainian Constitution and the Convention on the protection of human rights and fundamental freedoms connected with Nechaev’s detention.

Article 29 of the Constitution of Ukraine stipulates that the legality of a detention must be verified by court within 72 hours. By today the term of the detention of Nechaev lasts more than 21 days. This situation not only violates the Constitution, but also breaks Article 5 of the Convention on the protection of human rights and fundamental freedoms, which states that any person, which was detained because of the suspicion of some crime, must stand before a judge for the check of the legality of the detention. Article 29 of the Constitution, which reads that relatives must be informed about the detention and the further lot of the suspected, was also violated.

Deprivation of the detained of the legal aid during four days not only violates the criminal-procedural legislation of Ukraine, but also contradicts a number of international documents and the common principles of just legal procedure.

Holding in custody of a person, who has serious health problems, without adequate medical aid may be regarded as inhumane treatment, which transgresses Article 28 of the Ukrainian Constitution, Article 3 of the Convention on the protection of human rights and fundamental freedoms and other international documents.

The Kharkov group for human rights protection turns to you with the request to apply all your authorities to put an end to the flagrant violations of O. Nechaev’s fundamental rights that are guaranteed by the Constitution of Ukraine and international documents concerning human rights protection.

Sincerely yours,
Evhen Zakharov

“Prava ludyny” commentary: similar letters were sent by four more human rights protecting organizations. Owing to the professional aid rendered by advocate Lisovoy and the interference of human rights protecting organizations, Nechaev was released after the had given a written undertaking not to leave a place.

How to evade the demand of Article 29 of the Constitution, which reads that the legality of a detention must be verified by court during 72 hours after the detention, and to avoid the accusation of the illegal detention? This is not very difficult: one should only read the Criminal-Procedural Code attentively. Our criminal-procedural legislation, in spite of the obvious influence of the international standards on the protection of the right for freedom, still contains too many gaps that allow the law-enforcing organs to manipulate with such efficient tool as “detention”.

Alushta mayor Aleksey Nechaev stays in the preliminary prison for 21 days, and the legality of his detention has not been checked yet.

On 14 October 2003 the Pecherskiy district court of Kyiv issued the warrant for the detention of Aleksey Nechaev and for convoying him to court. On the same day, at 14:15, Nechaev was detained. By the way, Nechaev was detained for “convoying to court” in the building of the Central district court of Simferopol, where he was waiting for the beginning of the consideration of the case about his arrest on the basis of the appeal of the Crimean prosecutor!

It appeared that the prosecutor’s appeal had been withdrawn from the Central district court and passed to the Pecherskiy district court. It is difficult to understand why the question about the detention was solved not in Simferopol, but in Kyiv. However, Nechaev was detained in the very moment, when he was going to present to the Central district court of Simferopol the arguments against his detention. Nechaev was detained on the basis of the resolution of the Pecherskiy district court, to where he had not been summoned and, so, had not been given the opportunity to contend against the arguments of his opponents. Willy-nilly the doubts appear about the consistency of the arguments of the General Prosecutor’s office, if it preferred to apply such trick for obtaining the permission for the detention instead of solving this question in the open competition with the adversary.

Since that day Nechaev stays in the preliminary prison. His relatives were not informed about the detention. During four day Nechaev’s advocate was not admitted to him. Nechaev insists that he does not get any medical aid, although the officials know that at the time of the detention he underwent medical treatment in the Alushta town hospital.

The great number of the violations in this case is not very surprising: unfortunately, the violation of the rights of the detained is a common practice in modern legal proceedings in Ukraine. We are surprising at the carelessness of those, who initiated these violations: the officers of the General Prosecutor’s office of Ukraine. The officers of this agency are investigating the case of Nechaev now, they handed the appeal to the Pecherskiy court and they detained Nechaev and had to convoy him to court for settling the question about his arrest or release.

However, in fact, it is the administration of the Simferopol preliminary prison, who is directly violating Nechaev’s right for freedom, since he is kept there without proper court decision, although Article 106 of the CPC reads: “If the head of the establishment for preliminary incarceration did not get, within the term stipulated by law, the resolution of a judge about the preventive measure in the form of keeping in custody or the resolution about the release of the detained person, then the head of the establishment for preliminary incarceration must release the detained, compile the protocol about the release and send the notification to the official or organ that detained the person”.

Somebody would say that this provision concerns only the detention according to Article 106, which detention is realized without a court decision. Yes, strictly speaking, it is so. Nechaev was detained on the basis of part 4 Article 165(2) of the CPC. And the calmness of the agencies connected with this scandalous violation of Nechaev’s constitutional rights is caused by the fact that they are acting “under the banner of law”, or, to be more precise, according to this odious legal norm. We will quote the complete text of part 4 of Article 165(2) of the CPC:

“If the appeal of a prosecutor concerns the question about taking into custody of a person, who stays at large, then a judge has the right to issue the resolution about the detention of the suspected person and convoying this person to the court. The detention may not last longer than 72 hours, and, in the cases, where the person stays outside the settlement, where the court works, -- not longer than 48 hours since the moment of transporting the detained to this settlement”.

The right of a court to issue the arrest warrant in the presence of the sufficient reasons seems to be rather logical. Moreover, such procedure of the preliminary check of the reasons for the arrest serves as an additional guarantee of the rights of the person, who is suspected by law-enforcing organs. This procedure meets the demands of Article 29 of the Ukrainian Constitution, which permits the detention without court warrant only if “it is urgently necessary for preventing a crime”. If there is no such “urgent necessity”, then a law-enforcing organ must turn to court for the preliminary check of the reasons for the arrest.

The second part of Article 165(2), reading that “the detention may not last … in the cases, where the person stays outside the settlement, where the court works… not longer that 48 hours since the moment of transporting the detained to this settlement”, is somewhat problematic.

As a matter of fact, from the grammatical point of view, the phrase “may not last … not longer that 48 hours” means “must last longer than 48 hours”. Yet, we understand that the legislators did not want to establish the minimal term of the detention, this is merely an error caused by elementary illiteracy.

However, the legislators are responsible for giving the legal opportunity to keep a person in custody for the unlimited term without taking to court, since the law does not stipulate the time, during which a detained must be taken to the “settlement, where the court works”. The determination of the moment, from which the 48-hour term is beginning, fully depends on the law-enforcing organ, which realizes the detention.

In the case of Aleksey Nechaev, the General Prosecutor’s office needed more than three weeks for taking the detained from the Crimea to Kyiv. And, obviously, this is not the maximal term, and Nechaev is not the only person, who has suffered from the slow transportation.

Every man of sense understands that a detained must be transported to court as soon as possible. Yet, everyone, who has any experience in the sphere of legal proceedings, knows how often the law-enforcing organs neglect the references to the Constitution, say nothing of such “vague” concepts as “meaning of law” and “common sense”. Taking into account this approach of the fighters with crime, the future of Nechaev seems to be rather obscure: the law does not stipulate that he must be transported to this “settlement” at all.

Evidently, the officers of the General Prosecutor’s office know about this provision and believe that, since they acted according to the permission of the Pecherskiy court, they must not obey part 3 Article 29 of the Constitution, which obliges to conduct the court check within 72 hours.

However, the preliminary court check realized by a judge, who issues the permission for the detention in the accordance with Article 165(2) of the CPC, does not cancel the duty to take the detained to court for verifying the legality of this detention. Although the clauses of Article 29 of the Constitution are formulated not quite accurately and can raise some doubts, but the provision of Article 5 §3 of the Convention on the protection of human rights and fundamental freedoms is absolutely indubitable: “every detained… must be immediately taken to a judge or another official person, who have a judicial power”. The term “immediately” may be interpreted in different ways, but it is clear that 21-day term does not correspond to it.

Even smaller terms of detention were regarded by the European Court as violating the demand of “immediacy”. For example, in the case of Sakik the Court resolved: “Even if to suppose that the activities, of which the appellants have been accused, are connected with the menace of terrorism, the Court cannot agree that it was necessary to keep them in custody during 12 or 14 days without court interference” (ECHR, Sakik and Others v. Turkey, 26.11.1997, § 45)». As far as we know, the case of Nechaev is not connected with terrorism. How then the Ukrainian government would justify three weeks of the detention without taking the accused to court, if Nechaev turns to the European Court?

Another problem is that the draft of new Criminal-Procedural Code, adopted by the Supreme Rada in the first reading, still consists the provision about the immunity, which is so useful for law-enforcing organs. I will repeat my own words about this norm of the draft: “This provision provides the unlimited opportunities to militia for the misuses, since the militia determines the time, when the detained would be transported to the “settlement, where the court works”, thus determining the beginning of the term of detention. It is easy to imagine diverse forms of the cooperation of law-enforcing organs of various “settlements” for “justifying” the illegal and, theoretically, unlimited deprivation of liberty”.

Unfortunately, this assumption will be confirmed soon. And, alas, this would be only the first step in the application by law-enforcers of part 4 Article 165(2) of the CPC, owing to which they, in spite of de iure deprivation of the right to keep the detained and suspected in custody without any control, got the opportunity to restore this right de facto. Thus, the statement that only a court may permit to detain a person and establish the term of the detention turns into fiction, since the time when the court would have the opportunity to interfere depends on law-enforcing organs only.

200 inhabitants of the Zapadnodonbasskiy district turned to tax inspection with the appeal. The appealers stated that they refused to get the identification codes because of the religious views.

According to the amendment to the law “On state register of physical persons – payers of taxes and other obligatory payments” (1999), the exception is made for the believers, who may not get the identification code because this action contradicts their religious views. According to the amendment, this procedure is not obligatory for such persons.

However, the experts believe that the believers, who may not get the identification code because of their religious views, but carry on the commercial activities, must accept the demands of the state.

There are no alternatives of the identification code.

Today the passport services refuse to put some marks to passports. There have been several cases, where court issued positive decisions on this question. For example, a dweller of Donetsk won her case: the court acknowledged the actions of tax inspection to be illegal.

7 November 2003

To President Leonid Kuchma
APPEAL
Respected President!

We are turning to you in the connection with the approval of the Law of Ukraine “On telecommunications” by the Supreme Rada of Ukraine. The human rights protecting organizations reckon that this law endangers the rights of Ukrainian citizens, contradicts the interests of the society and the Ukrainian state as a whole. We have to state that, unfortunately, neither the representatives of parliamentary majority nor the representatives of opposition were guided by the interests of the society during the consideration of the draft.

The Law of Ukraine “On telecommunications”, which was approved by the Supreme Rada, contains the norm that obliges the operators of telecommunications to install at their expense the equipment, which would allow the law-enforcing organs to collect the information from the communication channels. We understand that law-enforcing organs must resort to such measures for protecting the national security and guaranteeing the public order, but we also reckon that this norm will have the consequences negative for the Ukrainian society.

First, coming into force of this law in the present version means the monopolization of the market of telecommunication services by several great companies; this will hamper the development of the market and competition, will impede the development of the Internet in small settlements.

Secondly, even the USS officers admit that they does not know how much the installation of the monitoring equipment will cost to the providers of the telecommunication services (and, ultimately, to the users). We are surprised by the willingness of the members of the Ukrainian Parliament to burden the Ukrainian citizens with the expenses, which amount is even unknown yet.

Thirdly, the measures for guaranteeing the state security and public order are taken in interests of all Ukrainian society, so they must be financed by all tax payers, but not only the users of telecommunications.

Fourthly, coming into effect of this law will result in the increase of the tariffs for the telecommunication services. As a result, the majority of the Ukrainian citizens will not be able to pay for these services.

Fifthly, as the Supreme Rada Main scientific and expert bureau correctly pointed out in its conclusion, the idea to install the equipment for collecting the information from the communication channels at the expense of telecommunications providers contradicts to the norms of the operating Law of Ukraine “On entrepreneurial activities” (parts 2-3 Article 12 and part 2 Article 13), in particular in the part concerning the guarantees of property rights of businessmen.

Sixthly, the Supreme Rada of Ukraine has not considered yet the law draft “On monitoring of telecommunications”, which envisages the procedure of collecting the information from the communication channels. So, we think that the introduction of the norms about the installation of the monitoring equipment must be postponed until the legislation would regulate the questions of adequate protection of the constitutional right of citizens for the privacy of correspondence, the extent of the authorities of law-enforcing organs and the procedure of carrying out the monitoring.

Seventhly, the attempts of the Security Service of Ukraine to introduce its control over the access to the Internet, distribution of information, access to informational resources and domain names are realized in the drafts, prepared with the participation of the USS, such as “On telecommunications”, “On monitoring of telecommunications”, “On the activities in the sphere of informatization”, and these drafts have already evoked the negative reaction of many international organizations.

We hope for your sincere intentions to promote the development of informatization in Ukraine and the access of the Ukrainian citizens to the Internet, which intentions are reflected in Edict No. 928 “On the measures for the development of the national component of the global informational network Internet and guaranteeing the broad access to this network in Ukraine” of 31 July 2000. Thus, we are asking you to use your constitutional authorities and to return the Law of Ukraine “On telecommunications” to the Supreme Rada with the proposition to introduce the proper changes.

Secretariat of the Council of Ukrainian human rights protecting organizations
Sevastopol human rights protecting group
Kharkov group for human rights protection
Podilsk center of human rights
Center of juridical and political research “SIM”
Public committee of national security of Ukraine

The Supreme Rada of Ukraine adopted in the third reading the Law “On telecommunications”. Along with the cancellation of the rule about free incoming calls, which is very important for the customers, this law stipulates the opportunity for the permanent monitoring of the Internet.

In particular, Article 39 of the Law “on telecommunications” reads: “4. Operators of telecommunications must (at their own expense) install on their telecommunication networks the equipment for realizing the ODA by competent organs, guarantee the proper work of this equipment, assist in the ODA and the measures for preventing the divulgence of the organizational and tactical methods of these activities. The operators also must guarantee the protection of the equipment from the unauthorized access”.

We believe that this provision will become a legal ground for the USS to make all providers of telecommunications to install the monitoring equipment, owing to which the security service would be able to control every user, including his electronic correspondence.

Thus, from the moment when the President will sign this law, every user should know that his every step in the Internet and all electronic messages will be permanently traced by special services.

The providers, in their turn, will suffer essential losses (tens of thousands dollars, according to the preliminary assessment), which will inevitably result in the growth of cost of their services.

So, in fact, the special services will spy on us at our own expense for, allegedly, our own safety. Well, this is a real Soviet logic!

The law was adopted almost unanimously: 296 MPs voted for this law and nobody voted against.

Some time before the MPs adopted in the first reading the draft of the law “On the activities in the sphere of informatization”, which regulates the Internet and other similar systems. 269 MPs took part in the voting, all of them supported the draft. So we see that no right for privacy exists for the MPs…

Secretariat of the Council of Ukrainian human rights protecting organizations

On 6 November Sergey Tarutin, a judge of the Vasylkivskiy district court, was dismissed from his post by order of Valentin Sholokh, the head of this court. S. Tarutin became notorious after his scandalous verdict on the faked case of human rights protection activist Leonid Kovalchuk.

After the Supreme Rada of Ukraine, owing to the activity of opposition MPs, did not approve the appointment of Tarutin as a life judge, two Presidential orders were issued about his dismissal (on 10 July and 22 September 2003), but Tarutin refused to execute the orders.

Yet, the success has been achieved at last.

For the time present it is the first essential victory of democracy in the struggle for unbiased and independent justice.

The company “Hotmaster”, Ltd. appealed against the decision of the Kyiv economic court, which, in the beginning of October, had rejected the claim of the company against the Cabinet of Ministers with the demand to acknowledge as invalid the governmental Decree “On administration of the domain .UA”. This information was communicated by Boris Mostovoy, the head of “Hotmaster”. According to him, “Hotmaster” handed the appeal to the Kyiv appeal court. On the basis of the Decree of the Cabinet of Ministers (No. 447-p, of 22 July 2003) “On administration of the domain .UA”, the government sustained the proposition of the State committee of communication and informatization about the creation of the association of enterprises “Ukrainian network informational center” for the purpose of management of the address space of the Ukrainian segment of the Internet, maintenance and administration of the system register and the domain names of the in the domain .UA. In particular, the State committee of communication, jointly with the participants of the Internet market and the interested central organs of state power, got the errand to realize the organizational measures for the creation and registration of such association, as well as to guarantee the membership in the association of the enterprises, which were subordinated to them.

The company “Hotmaster” handed the claim to the Kyiv economic court in the end of July 2003. The claim states that the above-mentioned Edict groundlessly deprived “Hotmaster” of the right to administer the domain, and that is a violation of the Ukrainian legislation. The claim also reads that the operating laws of Ukraine do not contain any regulations on such kind of entrepreneurial activities as the administration of the domain .UA.

Since 1992 the administration of the address space of the Ukrainian segment of the Internet is realized by physical persons Dmytro Kokhmaniuk and Igor Sviridov. The company “Hotmaster” carries out the technical maintenance.

At last the day came, for which the millions of Ukrainians were waiting. The Ukrainians, who were born or survived by a miracle during the terrible famine of 1932-33.

Only those people are alive now, who were children or youths at that time. The then adults have already died. Yet, their awful recollections remained… Unfortunately, they did not live up to the day, when almost all world community and, what is the most important, the country acknowledged that the famine of 1932-33 was a genocide. It is dreadful, when people are murdered because of their nationality, and such cases occurred, especially in the 20^th century. This happened with Armenians, Gypsies and Jews. How many catastrophes happened in this horrible century!

It is dreadful, when the crowds of maimed and oppressed innocent people are driven to the camps of death. But it is not less dreadful, when your own house, your village, your land is turned into the permanent hell. And you are left in this hell, and the only choice is either somebody will eat you or you will eat somebody. And your land perishes not only physically, but also spiritually and morally. And people stop to be people, they transform into the inhabitants of this hell, the inhabitants deprived of the right for the soul and morals…

The famine of 1932-33 was not only a mass murder of innocent people, it was also an attempt at their souls. The senior priest of the John the Divine Temple in Kharkov told to his congregation that somebody turned to him asking to pray for the soul of a woman, who had died from starvation, but had not eaten her children. So, one can imagine how frequent the cases of cannibalism were. And that happened in a Christian country! So, it is not surprising that even after Ukraine became independent, she cannot solve its problems. As a matter of fact, the life of our country is the life after death. The life of the country, one part of the population of which survived by miracle, the second part survived because they eat other people, and the third part encouraged the cannibalism.

Once, in an overcrowded bus, an elderly woman told loudly: “They say: famine, famine… I lived in Kharkov and I know: there was no famine at all! Yet, we have the famine now!” Her voice was sonorous, her Russian language was correct, and her exterior proved that she really had not seen the famine. As always, some people were in the bus, who either survived this catastrophe by themselves, or knew about it from relatives, since 8 millions of the perished is a rather great proportion. The brawl began… I was silent. Firstly, if the woman does not understand the sufferings of her people, then she does not belong to this people spiritually, and, secondly, my throat was squeezed with hate. I was silent, otherwise I would shout at this fat and foolish woman. Vivid pictures flashed before my eyes. Here is my grandfather, who worked as a zootechnician in 1932-33 and visited various villages. He, mildly speaking, disliked the Soviet power, but he did not think at first that the famine was artificial. His mind refused to believe that. He was sure that Bolsheviks were idiots and understood nothing in agriculture, so the famine was caused by the disorder and stupidity. Yet, for some reasons (maybe by intuition) my grandfather advised the head of a small cooperative in Oposhnia, a village in the Poltava oblast, where the famous ceramics was made, to register himself as a worker, not a peasant, and to enlist all dwellers of the village to the cooperative. The villagers followed the advice. They enlisted even those, who came to them from other villages. And the result was striking: the seed grain was not taken away from the members of the cooperative! That does not mean that they did not starve, but their situation was better than in other Poltava villages and the town of Poltava. My grandmother told that the cooperators showed their gratitude to grandfather and brought him two great ceramic vases made by them, and these vases were kept in our house until the WW2.

The grandfather understood that the famine was created artificially only when his sister told him that there was no famine in Moscow, where she lived, and that she sent the food parcels to them, but the parcels were not delivered. In Kharkov it was also possible to buy some expensive bread. And his father was standing in queues to buy this bread, in order to make zwiebacks and take them to his granddaughters to Poltava. Then the grandfather understood the scale of the crime committed against the Ukrainian people. The older generation of our family did not conceal their attitude to the Soviet power. I subconsciously hated this power and the Soviet Union as a whole since my childhood. In the 30s the grandfather was a member of “The union of hunters and fishers”, he had a riffle, with which he hunted for the black crows. My grandmother and great-grandmother cooked these crows and shared this food with neighbors. My mother, who had been 10 years old then, told that such behavior was very uncommon at that time. Yet, they were starving too, and both she, who was born in 1922, and my aunt, who was 10 years younger, had very poor health. Their successors: my sister and me, also are not too healthy. However, we are pure in the eyes of our compatriots: not a single member of our family ate or harmed anybody. My great-grandfather perished in a bread queue: the crowd pushed him from the sidewalk, and he was knocked down by a car.

So, I knew all this from childhood. Yet, I was surprised all the same, when I visited the grandmother of my playmate in the village of Kachalivka. There we went to forest and saw the square clearings with some strange knolls. In spite of grass and bushes, these clearings seemed to be artificial. The old woman told: “Here Kachalivka was situated before the famine. The dwellers had died and the forest advanced”.

Several days later one of the neighbors in Kachalivka told us about the famine: “Special commissioners used to visit our village. They were very angry. If they saw smoke from a chimney, they understood that something was cooked. Then they rushed into the house and threw tobacco in the pot”. I believe, that almost everybody will agree with me: spoiling the food, maybe the last one, looking at the famished children, is an “infernal” deed, as Dostoyevsky said. Any human creature and ethnic group is programmed for the continuation of the family and of the entire ethnos.

If the empire, and later the communist power, drove the people to such state, which cannot be called humane even in biological sense, then what could be said about our today’s cruelty and fear that have not left the society until now? For how many centuries the citizens of the Christian country would have to ramble in desert, the citizens, who were forced to eat each other?

There was a house in Kachalivka, where cannibals lived during these terrible years. They caught and ate children. When I was in the village, a distant relative of these cannibals still lived in the house, but nobody communicated with her.

Another grandmother resided very far from Kachalivka, in opposite direction from Kharkov. This settlement, Russkaya Lozovaya, is situated close to Kharkov, and the majority of its citizens work at the plants in the city. This grandmother told that there had been no real famine in their settlement. The seed grain was not confiscated. Yet, the inhabitants were afraid to leave their homes in evening, since there was a great sandpit at the outskirts. At nights or at the early hours of morning, people, who had died from starvation (and sometimes even those, who were alive yet), were transported there and thrown to the pit. The people were collected in Kharkov streets. The local inhabitants, who lived near the pit, heard groans and cries at night. Once the number of those dead and alive people was so large than one of them, an invalid without hands and legs, scrambled out from the pile of bodies and crept along the street knocking at the doors. He asked for food and water. Later he settled in some hayloft, people continued to feed him, and he survived.

Yet, how many people died in this pit? And how many such pits exist in Ukraine?

I am sure that this outrageous damage, which was injured to our souls, is now influencing our life and will influence it for a long time, since the people, who managed to get out from other world, do not know how to live in this world. They are doomed to wander about like the lost souls, because they are the successors of those, who experienced cruelty, super-meanness and super-hypocrisy.

Stalin, “the Father and Teacher“, eclipsed the deeds of Assyrian chars, who caused death of many people. Yet, these people were not made to eat each other. The communist leaders destroyed our souls, and now we are allowing some people to march at the demonstrations with Stalin’s portraits and to agitate about the uniting to one more empire. Yet, empires are criminal structures by definition.

So, who are we? The people, who get out the realm of the dead. What do we want? We do not know what to do and where to go: to Europe or to Asia, since we do not know our own history yet. Not only children, but also adults, do not know about the genocide experienced by our people. Ask Armenians, Jews or Gypsies: they know what happened with their nations. Only we are still hoping for something: either for good President or for a miracle that would be made by the opposition. Yet, the people, who are shadows on their own land, cannot hope for anything.

They must become real people. They must find themselves and their country. Otherwise, they would never have their own state.

M. Dzhemilev was born in a family of villagers. Mustafa’s father had owned a vineyard; he was banished from the Crimea as a kulak, but escaped from the exile and secretly returned to the native land.

On 18 May 1944 Dzhemilev’s family was deported to the Andizhan oblast of Uzbekistan. After Stalin’s death and abolition of some restrictions the family moved to the town of Angren, later – to the town of Mizarchul, where Dzhemilev graduated from the secondary school in 1959. He tried to enter the Eastern faculty of the Middle-Asian state university in Tashkent, but Crimean Tatars were not admitted to this faculty. During two years he worked as a turner and fitter at the Mizarchul repair-mechanical plant. After this he worked at the Tashkent aircraft plant.

In the end of 1961 Dzhemilev took part in the creation of the youth underground organization “The union of young Crimean Tatars”, where he headed the “historical department”. After the destruction of the organization and the arrest of its leaders Dzhemilev had to leave his job “on his own will”.

In 1962 Mustafa Dzhemilev entered the ameliorative faculty of the Tashkent institute of irrigation and mechanization of agriculture, but was expelled from the institute in the third year. The reason was the article “Brief historical review of the Turkic culture in the 13^th-18^th centuries” written by Dzhemilev and spread by him among the students.

In May 1966 Dzhemilev was condemned by the people’s court of the Leninskiy district of Tashkent to 18 months of incarceration for the refusal to serve in the armed forces.

In his final plea Dzhemilev stated: “The KGB officers are angry because we are collecting the statistical data about the mortality rate in the placed, to where the Crimean Tatars were deported, the materials against the sadists-commandants, who humiliated the people in the Stalin’s time and who… must be tried for the crimes again humanity”. Not long before the end of his term Dzhemilev was transferred to the penalty cell for the “anti-Soviet” propaganda among the prisoners. The state security officers came to the camp. They tried to force Dzhemilev to refuse from the participation in the Crimean Tatars’ national movement threatening him with new sentence. The threats stopped only after he went on hunger-strike.

After the release Dzhemilev got into contact with the activists of human rights protection movement. He signed the petitions for the protection of dissidents, protested against the occupation of Czechoslovakia by the Soviet troops, took part in the struggle for the observance of personal rights. He got acquainted with Western correspondents, who were accredited in Moscow, and was doing his best for informing the world community about the problems of Crimean Tatars deprived of the opportunity to live in the Crimea. “Mustafa was only 20, when he began to tell his fellow countrymen that the isolated national movement of such not numerous people as Crimean Tatars would not succeed. Being an incredibly strong-willed man, an excellent public speaker with the remarkable intellect and extraordinary capacity for work, Mustafa, in spite of his young age, played one of the leading roles in the national movement and occupied the significant place among the Moscow human rights protectors”, recollected P. Grigorenko.

In May 1969, after the arrest of Grigorenko, Dzhemilev joined the initiative group for the protection of human rights in the USSR; he signed the first documents addressed by this organization to the UNO.

In September 1969 Dzhemilev was arrested for the second time. His case was started after Article 191(4) of the Criminal Code of Uzbekistan (which corresponded to Article 190(1) of the Criminal Code of the Russian Federative Republic) and was united with the cases of P. Grigorenko and Illya Gabay. On 19 January 1970 the Tashkent city court condemned Dzhemilev and Gabay to three years of imprisonment.

As well as during the previous trial, Dzhemilev expressed in the courtroom his views concerning the problem of Crimean Tatars, the questions of democracy in the USSR and the events in Czechoslovakia. “Motherland or death!” said Dzhemilev finishing his final plea. Later P. Grigorenko recollected: “Mustafa’s speech was so impressive that the judge forgot about his duty to impede the speech”. Dzhemilev also announced the 30-day political hunger-strike in protest against the brutal violations of human rights in the USSR. He spent these 30 days in the Tashkent preliminary prison.

After the hunger-strike Dzhemilev and Gabay were transported to Moscow, to the KGB preliminary prison, where they were accused of the reproduction and distribution of a secret instruction of the VChK “on the information, work at the cases and agents”, which had been found during the search in Gabay’s flat. Yet, after four months the case was closed, and Dzhemilev was sent to Uzbekistan, where he served his sentence.

After the release he settled in the town of Gulistan (Uzbekistan), worked as an engineer in a sovkhoz.

Dzhemilev was arrested for the third time on 19 July 1974. The Gulistan district court condemned him to one year of incarceration for evading the military training (Article 199-1 of the Criminal Code of Uzbekistan). One of the reasons of the arrest was the “operative information” obtained by the KGB about his intention to go to Moscow for handing the petition of Crimean Tatars to USA President R. Nixon, who visited the USSR then.

M. Dzhemilev served his term in a concentration camp in the Omsk oblast. On 19 June 1975, three days before the end of the term, another criminal case was instituted against Dzhemilev for compiling the documents, which disgraced the Soviet state and social system, and spreading the “slanderous” information among convicts. Dzhemilev went on a protest hunger-strike, which lasted for more than 300 days, and was feed coercively.

On 15 April 1976 the Omsk oblast court condemned him after Article 190(1) of the Criminal Code of Russian Federation to 2.5 years of incarceration in concentration camps.

The camp was situated at the Far East, the Primorskiy Territory. One month before Dzhemilev’s release the camp administration tried to concoct new criminal case against him. After the 15-day hunger-strike he was transported by air to Tashkent, where he was released in December 1977. Dzhemilev stayed under the administrative surveillance.

Both during the incarceration and at large Dzhemilev insisted on his right to live in the Crimea; he sent protests to Soviet and international organizations, which protests were distributed in samizdat. More than once he was detained during the attempts to visit his native land.

In February 1979 he was arrested and accused of the “persistent infringement of the rules of administrative surveillance”. On 6 March 1979 the people’s court of the Oktiabrskiy district of Tashkent sentenced him to four years of exile. Dzhemilev refused to take part in the trial, since the advocate, whom he chose, was not admitted to defend him.

Dzhemilev served his exile in Yakutia, in the village of Zyrianka. In July 1982, after the expiration of the exile term, he went to the Crimea together with his wife and child. Yet, three days later the family was evicted from the Crimea and sent under the administrative surveillance to Yangiul, the Tashkent oblast. There he worked as a fitter and a general worker.

In November 1983 Dzhemilev was arrested again and sentenced by the Tashkent oblast court after Article 191(4) of the CC of Uzbekistan to three years of deprivation of liberty. He was accused of the “compilation and distribution of the documents disgracing the Soviet state and political system”, correspondence with his acquaintances abroad, audio-recording of the transmissions of foreign radio stations, the letter to the Japanese radio corporation NHK containing the approval of the position of Japan in the territorial conflict with the USSR and the organization of public disorders during the attempt to bury his father in the Crimea. He was sent to a camp in the Magadan oblast (Russia).

In November 1986 another criminal case (the seventh one) was instituted against Dzhemilev “for persistent insubordination to the demands of the administration of the camp”. His friends and relatives declared that if new verdict would be issued, they would go on the relay hunger-strike (every of them would hunger one day per month) until the end of the term. At first the power wanted to issue a very severe verdict: the prosecution accused Dzhemilev of several tens of criminal episodes and a great number of witnesses were interrogated. However, on 16 December 1986 the assize court, which was conducted in the village of Upter (the Magadan oblast), acknowledged Dzhemilev to be guilty after Article 188(3) of the CC of Russian Federation and condemned him to the suspended sentence. Such light punishment was caused by the change of political situation: the campaign for the release of political prisoners had been started in the USSR in the framework of perestroika.

In April 1987, at the first All-Union Congress of the activists of Crimean Tatars’ movement, Dzhemilev was elected to the Central Initiative Group. He became an editor of the monthly “Vestnik Natsionalnogo Dvizhenija Krymskikh Tatar” (“The Herald of the National Movement of Crimean Tatars”). In May 1989 the Organization of the National Movement of Crimean Tatars was founded at the regular All-Union Congress of the activists, and Dzhemilev became the head of the Central Council of this organization. The same year he, together with his family, moved to the Crimea and settled in Bakhchisaray.

In June 1991 the National congress of representatives of Crimean Tatars was held for the first time after 1917, which was called the second kurultay. At this congress Dzhemilev was elected to the post of the head of Medjlis – the supreme representative organ of Crimean Tatars. In 1996, at the third kurultay, he was again elected the head of the Medjlis for another 5-year term. In March 1998 Dzhemilev became a deputy of the Supreme Rada of Ukraine after the party list of the People’s Rukh. He is a member of the Supreme Rada committee in charge of human rights, national minorities and interethnic relations.

Human rights protection and political activities of Dzhemilev was rewarded with numerous awards and honorary titles. He got the title of honorable Doctor of Science of the Seldjuk University (Turkey, 1996) and the Higher Technological institute of the town of Gebze (1998). In 1995-1996 Dzhemilev became an honorable citizen of several Turkish towns, the municipality of the town of Izmir gave him the international premium in the sphere of human rights. A park and several streets in Ankara and other towns were named after Mustafa Dzhemilev, as well as a lecture-room in the Seldjuk University and the library of the Kirikkale University.

In 1998 Dzhemilev got the annual F. Nansen prize of the UNO Supreme Commissariat in charge of refugees.

***

We are sincerely congratulating respected Mustafa Dzhemilev on his jubilee! We wish him health, creative inspiration and success!