“Prava Ludiny” (human rights) monthly bulletin, 2004, #11
Project «Monitoring of the election process-2004 at special election stations in penitentiary establishments» Appeal of the Lugansk regional branch of the VCU on the results of the run-off presidential election in the Lugansk region Deputies of the Ternopil regional council reacted to interference of state administration in their activities and the attempts to falsify the results of the election Authorities did everything for falsification of the election Constitutional and legal analysis of the Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region» Constitutional and legal analysis of the political situation in Ukraine (On 25 November 2004) Statement by the Kharkiv Human Rights Protection Group concerning the political events in Ukraine (as of 23 November 2004) Statement of the Kharkiv human rights protection group on the run-off presidential election in Ukraine Will we struggle for our liberty? The number of people, who voted in the Kharkiv region, is more than the quantity of permanent population Odessa opposition does not believe in promises of the power to liquidate drawbacks Election in Nikopol Commentary to the events during Presidential election in the Ternopil region Violations observed in the course of the election in the Chernigiv region Punishment for work Militia kidnaps the observers It was ordered to spoil bulletins during the run-off election Whether the authorities exerted pressure on the election in Kharkiv? Commentary by the Kharkiv human rights protection group on election-2004 Politics and human rights
Open letter on non-transparent and criminal activities of power The right to liberty and security
Militia colonel has found another victim?
Project «Monitoring of the election process-2004 at special election stations in penitentiary establishments»
The International association of human rights -- Ukrainian section (IAHR-US), with the financial support of embassies of Canada, the USA and Great Britain, realizes the project «Monitoring of the election process-2004 at special election stations in penitentiary establishments».
One of the elements of the project is the collection, analysis, systematization and publication of the information about the voting by the people, who are held in custody (establishments of criminal-executive system of the Department of Penitentiaries of Ukraine, special establishments of the Ministry of Interior of Ukraine, guardhouses and disciplinary battalions of the Armed Forces of Ukraine).
The mentioned collection of information was realized by involvement of more than hundred persons (official observers and representatives of mass media) to the activities in the framework of the project throughout Ukraine.
In accordance with the plan of realization of the project, the information, collected by the workers of the Project on 31 October, after the calculation of votes, was urgently passed to the Kyiv office of the IAHR-US with the purpose of its immediate publication.
However, the process of urgent receiving of this information was complicated with unforeseen phone calls to the Kyiv office of the IAHR-US (the phone number 235-34-35). These calls were not addressed to the IAHR-US or to any of its workers, but concerned the questions not connected with the activities of the organization. More often the persons, who called, tried to learn about the preliminary results of the election of the President of Ukraine. Sometimes they insisted that the number, by which they phoned, belonged to some department of the Central election commission.
There were other calls that also concerned the election: the callers did not try to learn about the results of the election, but stated that the workers of the IAHR «falsified the bulletins».
Some calls were abstract: somebody wanted to speak with Roman, to order pizza or merely to learn who was lifting the receiver by this phone number. The phone calls were heard every 2-3 seconds, so the line was completely blocked for the calls connected with the project activities.
The described phone «conversations» began about 11 p.m. and stopped after 1 a.m.
One of the callers informed that he had found this number on the site http://politikantrop.com.ua. Really, there was the number of the Kyiv office of the IAHR-US on the first page of this site. We will quote the message published on the site: «ATTENTION! URGENTLY! In the connection with probability of falsification of the election results we ask you to block the channel for communication of the «exacted protocols». Phone: 235-34-35. Call, do not give the opportunity to open the channel for falsifications!!!»
About 1 a.m. this appeal disappeared from the site «Politikantrop».
It should be noted that, in spite of everything, the IAHR-US managed to get the information planned by the project.
Appeal of the Lugansk regional branch of the VCU on the results of the run-off presidential election in the Lugansk region
The Lugansk regional branch of the Voters committee of Ukraine has summed up the results of supervision over the run-off presidential election in the region and reckons that the announced results of the election do not represent the facts.
Without doubt, Viktor Yanukovich has absolute advantage in the Lugansk region: this agrees with our observations concerning the electoral sympathies of voters. Yet, we believe that the quantitative data on the number of citizens, who took part in the voting, and on the number of votes given for Viktor Yanukovich and Viktor Yushchenko, were falsified. This conclusion can be drawn from the following facts fixed during our observation.
1. The lists of voters for the run-off election were compiled with brutal violations of operating law. For example, in territorial election circuit No. 114 the compilation of lists and their verification began on 6-7 November, before the adoption of the CEC decision on the conduction of the second tour of the election. These lists contained names of the voters, which had not been in the lists on 31 October, and no election commissions and courts took the decisions about their inclusion in the lists. This is a violation of the order envisaged by the second part of Article 36 and parts 6 and 8 of Article 34 of the Law «On election of the President of Ukraine»
2. Opening of the envelopes with the lists of voters, carried out on 11 November 2004 at the sitting of the TEC of election circuit No. 113 in Severodonetsk, was purely decorative, and these lists were not used for compilation of the lists for the run-off election. So, the lists of voters were not opened at all at election stations Nos. 3, 62 and 63, about which the proper documents were composed and the claim was handed to the Lugansk appeal court. As a result, a great number of voters were illegally inscribed into the lists for the second tour of election, which, in accordance to part 1 of Article 80 of the Law, may be a ground for acknowledgement of the election as invalid.
3. Even before the day of voting the Lugansk regional branch of the VCU received the information about the «plan» given to the commissions, who had to guarantee the attendance of not less than 90% of voters. The commissions fulfilled the order with brutal violations of laws. In the course of voting the VCU observers fixed the facts, when the members of commissions phoned to voters and persuaded them to come to the election stations and when the members of commissions passed the lists of voters, who did not vote, to other persons. Such actions of election commissions had a mass character. The commissions exceeded their authorities, stipulated by Article 27 of the Law «On election of the President of Ukraine», and directly violated the demands of Article 5 of the Law, which prohibits pressure on voters. Besides, at the stations (or near them) representatives of power organs, establishments and enterprises stayed, registering their workers, who came to the election.
4. Another «plan task» given by the local power organs to the district commissions was the provision of not less than 15% of voting at the place of residence of voters. By the data of the VCU, this task was not fulfilled, but the proportion of «home voting» increased, in comparison with 31 October, from 4.2% to 8.7%. At that the mass violations of the procedure of such voting, stipulated by parts 1 and 3 of Article 77 of the Law, were observed: the lists for voting at the place of residence included not only those, who could not come to election stations because of poor health, but other persons too. The greater part of the applications about the voting at home, handed to the district election commissions, were made on copying equipment and signed by voters. In many cases the lists were not checked and were not approved by election commissions. The complaints were handed in connection with these facts, but these complaints were either rejected or not considered.
5. The voting at the place of residence of voters was carried out with violation of the procedure envisaged by parts 4 and 6 of Article 77 of the Law. Heads of the commissions did not inform about voting at home, the members of the commissions from V. Yushchenko were not included to the groups that conducted such voting, even if they insisted on this. At the same time the commission of the Stanichno-Luganskiy district took the decision that the voting at home would be realized not by three, but by two members of the commission, and a member of DEC 114/4 went with the ballot-box alone. Besides, the VCU observers fixed the cases, where the members of district election commissions, which came to voters homes, agitated for Viktor Yanukovich.
6. The VCU observers fixed various violations of the voting procedure, which had the mass character:
- repeated voting of one voter at the same station;
- giving to a voter of more than one bulletin for voting, throwing in of the batches of bulletins;
- movement of voters with off-list tickets from one station to another. So, buses with voters from Enakievo and Alchevsk accompanied by militia moved around the territory of the Antratsitovskiy district. A group of students was disclosed in Severodonetsk, who voted with the off-list tickets at election station 113/33, and then did the same at station 113/30. The complaint handed to the territorial election commission in the connection with this fact was not considered – the commission refused to include this question into the agenda. Similar situation was with the complaint handed, when about 600 bulletins, not signed by members of the commission, were acknowledged to be valid.
At a number of election stations the facts were fixed, when the members of the commissions purposely spoiled the bulletins given for Viktor Yushchenko. Some members of DEC 116/2, after the disclosure of falsification of bulletins, refused to sign the protocol of calculation of votes. After this several persons of criminal appearance armed with bats, drew them to a room and kept there for some time. At station 112/118 an observer of the VCU voted (with the off-list ticket) against both candidates, but number «0» was written in the column «against all» of the protocol.
7. There were many violations of the procedure of filling of the protocols stipulated by Article 79 of the Law: some district commissions of election circuits Nos. 111, 112 and 115, where representatives of the VCU were present during the calculation of votes, did not fill the protocols, but went to the territorial commissions with blank protocols signed by members of the commissions.
8. The conditions were created in the Lugansk region, which rendered impossible the efficient observation over the legality of work of the election commissions. So, the territorial commission of circuit 115 adopted resolution No. 129, which limited the place of location of observers with the area situated in 20 meters from the place, where the commission was working. There were mass facts of non-admittance of representatives of mass media and observers (including the international observers) to the rooms, where the voting took place. Under such conditions there are no grounds to say about the transparency of the election, on which the CEC insists.
9. At the same time, practically at all election stations of the Lugansk region (in the rooms for voting) there were persons, who had no right to be present there in compliance with part 10 of Article 28 of the Law. Militia officers were present almost everywhere, and the TEC of circuit No. 113 took the special decision about invitation of militiamen to the election stations. A claim was handed against this decision, but the Lugansk appeal court recognized that the decision was lawful.
10. The practice of consideration of the complaints against the violations of the Law of Ukraine «On election of the President of Ukraine», which had formed in the Lugansk region, made impossible or inefficient the appeals against the illegal actions of election commissions. At that, the Lugansk courts, considering the complaints against the violations of election laws, acted with partiality in interests of candidate to Presidents post Viktor Yanukovich. After midday of 22 November the territorial commissions finished their work and were closed, which made impossible the appeals against the results of the voting. For instance, in Stakhanov an empowered person of Viktor Yushchenko could not hand 18 complaints prepared after the facts of violations, since there was nobody in TEC 116. The situation did not improve also after the appeal to the CEC.
The results of the observation evidence on the enormous number of violations of election laws, which noticeably influenced the results of the voting. Taking into account the fact that about 300 inhabitants of the region, especially in the «depressive» mining districts, where the attendance was maximal, in reality worked abroad, but were inscribed into the lists, one can say that the numbers published in the protocols mean that much more than 100% of voters took part in the election in the region.
Under such conditions the Lugansk regional branch of the VCU reckons that the results of election in the Lugansk region were falsified and proposes to the CEC to recalculate the votes and to verify the lists for the repeated voting in election circuits Nos. 105-116.
Approved by the board of the Lugansk regional branch of the VCU on 23 November 2004
Sent by fax to the CEC
Lugansk branch of the VCU
Deputies of the Ternopil regional council reacted to interference of state administration in their activities and the attempts to falsify the results of the election
As it was predicted, the session was sabotaged by the state administration. It was sabotaged according to the well-known scenario: the «recommendations» about non-appearance were given to the deputies, who worked in state establishments. Thus, there was no quorum at the session. In this situation forty deputies of the regional council, mainly representatives of the fraction «Our Ukraine» and Y. Timoshenkos bloc, conducted their own sitting.
At this sitting the deputies of the Ternopil regional council approved the resolution about the distrust to M. Tsymbaliuk, the head of the regional state administration, «in the connection with mass facts of violation by top officials of the Ternopil regional administration, law-enforcing, tax and other state organs of the Ukrainian Constitution and the Law «On election of the President of Ukraine» aimed at disfranchisement of their workers and attempts of certain criminal-oligarchic forces to falsify the results of the presidential election of 21 November 2004 in favor of the pro-power candidate, and taking into account the fact of sabotage of the work of the session of the regional council on 18 November because of ungrounded non-appearance of deputies-representatives of power structures of the region».
Two collective appeals were approved: one -- to the workers of law-enforcing, tax and other state structures, and another -- to all inhabitants of the Chernigiv region.
Authorities did everything for falsification of the election
The Ukrainian Helsinki Union of human rights, in cooperation with organizations-partners, realized the permanent monitoring of observance of human rights during the election campaign-2004 in Ukraine. We fixed brutal violations of human rights and election laws, serious both by scale and by consequences. The election was carried out in the atmosphere of pressure on voters exerted by the state power. The practice of political persecution of public activists has been restored in our country, for the first time during the years of independence international human rights protecting organizations have acknowledged the existence of prisoners of consciousness in Ukraine.
Under such conditions the election, which has been conducted in Ukraine, cannot be regarded either as free, or as honest, or as transparent.
On the day of the run-off, 21 November 2004, noticeable violations of election rights of citizens were observed.
The mass phenomena during the second tour of the election of the President of Ukraine was the misuse of power and impediment to the expression of citizens will by means of using the «off-list tickets» (certificates authorizing a person to vote off the precinct, where he or she is registered). In Western regions of Ukraine the organs of state power and heads of state enterprises forced their workers to take such tickets at district election stations and pass the tickets to their chiefs. So, the workers of the Mykolayivska interregional state tax administration of the Lviv region turned to the local court with the complaint against such actions of their manager. The actions of the STA head were acknowledged to be illegal. There were hundreds of such complaints handed to election commissions, law-enforcing organs, election headquarters of candidates and mass media. Most of these actions did not get any legal assessment, and the guilty were not brought to juridical responsibility envisaged by law.
In many regions of Ukraine, in particular, in the Kherson and Sumy regions and in the Crimean Autonomous Republic, the facts were fixed of voting with the off-list tickets by the same persons on the territory of different election circuits.
For instance, Crimean dweller Anatoliy Shaydur got several off-list tickets in district election commission No. 60 of territorial election circuit No. 10. He used ticket No. 057417 for voting at election station No. 66 and ticket No. 057402 – at station No. 67. Besides, he was included into the list and voted at election station No. 63.
In Severodonetsk a group of students was disclosed, who voted with the off-list tickets at election station No. 33 of TEC No. 113, and then did the same at station No. 30 of the same circuit. The complaint handed to the territorial election commission in the connection with this fact was not considered – the commission refused to include this question into the agenda.
Such tricks had the mass character in Southern and Eastern regions of Ukraine, owing to which the attendance of voters was essentially «increased».
The human rights protecting organizations permanently obtained the information that the organs of state power obliged the district commissions to fulfill the «plan»: to guarantee the attendance of not less than 90% of voters in the Lugansk and Donetsk regions, and the commissions fulfilled the order with brutal violations of law. During the voting the great number of facts was fixed, when the members of commissions and other persons, to whom, contrary to law, the lists of electors, who did not vote, were passed in the Crimea and in Lugansk and Donetsk regions, phoned to these people and persuaded them to come to the election stations. Such actions of election commissions may be regarded as misuse of powers given to district election commissions by Article 27 of the Law «On election of the President of Ukraine» and direct violation of the demands of Article 5 of this Law, which prohibits exertion of pressure on voters. Besides, at the stations (or near them) representatives of power organs, establishments and enterprises stayed, registering their workers, who came to the election.
In the Lugansk, Nikolayev and Donetsk regions, in the Crimean Autonomous Republic and in Sevastopol City the lists for voting at the place of residence included not only those, who could not come to election stations because of poor health, but also other persons.
The district election stations acted so because they were obliged by representatives of the organs of state power to increase the attendance of voters.
The election commissions in the Sumy, Lugansk and Donetsk regions impeded the work of observers and representatives of mass media. Journalists and observers, who made video records on the day of voting, faced most negative reaction. So, Oleksiy Svetikov, an activist of local human rights protecting organization and a journalist of the newspaper «Tretiy sektor» in the Lugansk region, was beaten by strangers near the entrance to election station No. 27 of TEC No. 113. Video camera and the cassette with the materials recorded at the election station were taken away from him. We insist that all data on application of violence against persons, who took part in the election process, must be immediately considered by law-enforcing organs and the guilty must be found and brought to criminal responsibility. The persons, who impeded the free expression of citizens will, must be also punished in accordance with law.
We have to state that the organs of state power of Ukraine took the active part in the election process, using various illegal methods creating obstacles for conduction of the election campaign by representatives of the political opposition and, contrary to laws, supporting the candidate from power. The local state administration fulfilled the noticeable amount of work in favor of candidate to Presidents post V. Yanukovich.
Contrary to laws, the entire process of election and its separate stages, in particular, forming of election commissions, pre-election agitation, calculation of votes and establishment of the results of voting were completely controlled by the organs of state and executive power, both in the center and in province.
The results of our monitoring in many regions of Ukraine, in particular, in the Lugansk region and the Crimean Autonomous Republic, evidence on the great number of violations of election laws, which had the essential influence on the results of the election.
The law-enforcing organs of Ukraine could not guarantee the safety of voters, which was confirmed by the facts of violent actions against the voters and observers in the Sumy, Cherkasy and Lugansk regions. We are especially worried by the messages about mass persecutions of the persons, who took part in the activities in favor of political opposition in the Lugansk and Donetsk regions.
So, we reckon that the Central Election Commission should not only fulfill the function of arithmetic calculation of votes, given for candidates according to protocols of election commissions, but also take into account the circumstances, under which the voting and calculation of votes at election stations were carried out.
The decision of the CEC about the results of the election of the President of Ukraine, announced on 24 November 2004, evidences that, instead of the unbiased attitude to all participants of the election process and thorough study of all circumstances, which might cause the falsification of the results of the voting, this organ did not fulfill its main function of an organizer of the election process in Ukraine, but legitimated the will of the persons, who embodied the state power in our country.
The project of video supervision over the observance of human rights during the election of the President of Ukraine was realized by the Chernigiv public committee of human rights protection with financial support of the International Foundation «Vidrodjennia».
Participants of the project:
1. Vinnitsa human rights protecting group
2. Public committee for the protection of constitutional rights and freedoms of citizens (Lugansk)
3. Lugansk regional branch of the Voters committee of Ukraine
4. Institute of economic-social problems «Respublika» (Kyiv)
5. Sevastopol human rights protecting group
6. Institute of implementation of innovations (Zhytomir)
7. Institute of social research (Simferopol)
8. Kharkiv group for human rights protection
9. Kherson town association of journalists «Pivden»
10. Kherson regional organization of the Voters committee of Ukraine
11. Center of study of regional politics (Sumy)
12. Chernigiv public committee of human rights protection
13. Sumy commission of human rights protection
14. Christian-peoples union of Transcarpathian area (Uzhgorod)
Constitutional and legal analysis of the Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region»
We, the undersigned – the qualified experts in the fields of Ukrainian constitutional law, national and local governments, and other fields of law have carried out a constitutional and legal analysis of the Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region» and have come to the following conclusions:
The Decision by the Kharkiv regional council of 26 November 2004 «On the measures to stabilize socio-political situation in the region» does not correspond to the Ukraines Constitution and laws.
According to Article 19 (Part 2) of the Ukraines Constitution «local governments, their officials are obliged to act only on the basis of, within the competence of, and in the way described in the Ukraines Constitution and laws.»
The analysis of the Ukraines Constitution and laws testifies that the current legislation of Ukraine does not provide regional and district councils with competences for making this kind of decisions.
The Kharkiv regional council, by making the decision –
«2. To set up executive committees of the regional council and district councils.
4. To elect E. Kushnaryov, Head of the [Kharkiv] regional council, a head of the Executive Committee of the [Kharkiv] regional council.
5. To order the Executive Committee of the [Kharkiv] regional council to establish structure, staffing of the executive committee, divisions and departments, as well as the councils administration.
6. To advise the district councils to immediately hold extraordinary sessions and establish staffs of the executive committees of district councils approved by the Executive Committee of the [Kharkiv] regional council.»
– violated a number of provisions or the Ukraines Constitution (Articles 7, 8, 19 (Part 2), as well as virtually all provisions of the Ukraines Law on Local Governments in Ukraine that define status and competence of regional and district councils.)
The substantive analysis of the paragraphs above testifies that they aim to turn a system of relations between various governmental authorities at the local level to the Soviet times – when district councils acted not in the interest of the public, but rather followed through management decisions made by their superior regional council in the first place.
In particular, the Decision by the Kharkiv regional Council regarding the creation of executive committees of district councils is unlawful, because, according to the Ukraines Law on Local Governments in Ukraine such a decision can be made only by district councils themselves. The legal decision on the creation of executive committees of district councils cannot be considered as a necessary legal basis for decisions by respective district councils.
Para 3 of the aforementioned Decision «To grant them (executive committees of the regional council and district councils) the competence of the state executive authorities and local governments» also does not correspond to the Ukraines Constitution and laws. According to Article 143, Part 3 of the Ukraines Constitution, local governments can be authorized by law with some competences of the executive authorities. So, that decision of the Kharkiv regional council is a rude interference in the competence of the state executive authorities, violates Articles 6, 19 (Part 2), 92 (Part 1, Para 12), 118, and 119 of the Ukraines Constitution, the Ukraines Law on Local State Administrations and other Ukrainian laws describing competences of local executive authorities.
According to Article 118 of the Ukraines Constitution the executive authority in regions and districts is carried out by local state administrations. The organization and competence of the executive authorities are regulated exclusively by laws of Ukraine (Article 92 (Part 1, Para 12) of the Ukraines Constitution).
Taking decision –
7. To oblige the Ukraines State Treasury Department in the Kharkiv region (R. Yeremchuk) and Ukrainian National Bank Department in the Kharkiv region (V. Kachuk) to stop transferring funds to the state budget, starting 27 November 2004.
– the Kharkiv regional council also substantially overstepped its competence.
This decision contradicts Articles 19 (Part 2), 92 (Part 2, Para 1), and 95 of the Ukraines Constitution, Article 24 of the Ukraines Law on Local Governments in Ukraine, Article 7, 47 to 50 of the Ukraines Budget Code and Law on the State Budget of Ukraine for 2004, Law on the National Bank of Ukraine.
The Ukraines State Treasury Department in the Kharkiv region and Ukrainian National Bank Department in the Kharkiv region are obliged to act in accordance with the Ukraines Constitution and laws.
Para 8 of the Decision –
...in order to maintain law and order, protection of rights, freedoms and legitimate interests, and security of residents of the Kharkiv region, to subordinate the Ministry of Interior Department in the Kharkiv region, the Ministry of Interior Department at the Pivdenna (Southern) Railway and Ministry of Emergency Main Department in the Kharkiv region along with their units to the Executive Committee of the [Kharkiv] regional council
– also does not correspond to Article 19 (Part 2) of the Ukrainian Constitution and Articles 3, 4 , and 7 of the Law of Ukraine on Police, other laws, decrees by the Ukrainian President and Cabinet of Ministers.
According to Article 43 (paragraphs 33 & 34) of the Law of Ukraine on the Local Governments in Ukraine, plenary sessions of district and regional councils deal with the following issues:
33) creation of local police, with approval of respective main departments, the Ministry of Interior departments in the Autonomous Republic of Crimea, regions, Cities of Kyiv and Sevastopol; approval of designations and resignations of local police chiefs and heads of its structural units and district police officers, filing propositions with respect to their recruitment or punishment;
34) hearing of the reports by departments of interiors chiefs on the current crime control, as well as local police chiefs on the current public security and protection of public order in the respective territory, initiating before the competent authorities issues with respect to firing those chiefs, when their work be considered unsatisfactory.
According to Article 26 of the Ukraines Law on Police the oversight for police activity is carried out by the Ukraines Cabinet of Ministers, Ministry of Interior, and, within their competences, [local] councils. The councils, while carrying out their oversight, do not interfere in its operative, criminal, procedural, and administrative activity.
An unlawful decision and that, which substantially overstep its competence, is the decision according to Para 11 – «To subordinate the Kharkiv TV & Radio Company and Kharkiv Radio & TV Transmitting Center»– because the fundamental principles of transfers of legal entities in the state property to municipal property of local communities, or to joint property of local communities of villages, townships, towns, or transfers of legal entities in the municipal property to state property are regulated by the Ukraines Law on Transfer of Legal Entities in the State and Municipal Property.
The decision to temporary cancel broadcasting by TV companies «Era,» «5 Kanal,» and «7 Kanal» in the Kharkiv region for their repeated calls to destroy the constitutional order in Ukraine (Para 12) does not correspond to the Ukraines standing legislation.
According to Article 6 of the Ukraines Law on TV and Radio Broadcasting, interference of authorities of the national, local, and regional governments, their officials, groups of citizens, individual citizens in the creative work of TV & radio organizations, as well as censorship as control over the ideological contents of the broadcasts are prohibited; only contents of the information, which is protected by the law, is controlled.
According to Article 28 (Part 5) of the Ukraines Law on TV and Radio Broadcasting, work of TV & radio organizations can be temporarily cancelled by courts decision, in cases, which are described in the election law.
The Ukrainian mass media, according to the Ukrainian legislation, are entitled to cover all aspects of activity on the part of national and local authorities. National and local authorities are obliged to provide the mass media with full information about their activity through respective informational services of the national and local authorities, to provide journalists with free access to it, with the exception of cases, described in the Ukraines Law on State Secrets, not to press them in any way, and not to interfere in their working process. The mass media can carry out their own investigations and analysis of the national and local authorities and their officials activities, assess and comment them. (Article 2 of the Ukraines Law on the Manner of Covering the Work of the National and Local Authorities by the mass media in Ukraine).
According to the Ukraines Constitution and Law on Local State Administrations, regional state administrations enjoy, probably, the widest range of authority at the local level, which allows them to effectively maintain human and citizen rights and freedoms in the Kharkiv region. However, the analysis of the decision by the Kharkiv regional council testifies that the leadership of the Kharkiv regional State Administration, after initiating its adoption, is intending to substantially change the system of public authority at the local level.
We believe that such actions could be accounted for by the intentions on the part of the Kharkiv regional State Administration to withdraw from the direct subordination to the higher and central state authorities, while practically securing all the powers both pertinent to local state authorities and local governments.
Such decisions by the local governments, merged with the unconstitutional calls for change in the territorial organization of public authority and territorial organization of Ukraine eventually could lead to breach of the territorial integrity and state sovereignty of Ukraine.
In this situation, the absolute inaction on the part of all Ukrainian law-enforcement agencies looks stunning. In turn, it becomes a stimulus to adopting even more unconstitutional and illegal decisions made by the national and local authorities and violations of the law by individual citizens of Ukraine.
In the same time, we would like to call attention of the local governments at all levels that the court rulings regarding actions or inaction by the legislative branch of the local governments is a credible legal basis for early cancellations of their authorities and setting a date of early elections by the Ukrainian Parliament.
P. Lyubchenko, Candidate of Law, Lecturer at the Department of National and Local Government, the National Law Academy named Yaroslav Mudry
F. Venislavskiy, Candidate of Law, Lecturer at the Department of Constitutional Law, the National Law Academy named Yaroslav Mudry
V. Kolisnyk, Doctor of Law, Professor at the Department of Constitutional Law, the National Law Academy named Yaroslav Mudry
M. Buromenskiy, Doctor of Law, Professor at the Department of International Law, the National Law Academy named Yaroslav Mudry
Constitutional and legal analysis of the political situation in Ukraine (On 25 November 2004)
We, the undersigned – the professional experts in the field of Ukrainian Constitutional Law and other fields of law - declare that our constitutional and legal analysis of the political situation in Ukraine after the 2004 presidential election has been finished and its results has been officially announced comes to the following conclusions:
1. Most stages of the election process were accompanied by rude violations and blunt abuse of the fundamental constitutional principles in the application of election law, which are provided for in Article 71 of the Ukraines Constitution, and principles of election law, provided for in Articles 1, 2, 3, 5, 6, 8, 11, 13 of the Ukraines Law on Election of the President of Ukraine.
First, the stage of compiling voter lists was accompanied by numerous mistakes in spelling of full names, dates of birth, omissions of names of many voters, who are legal residents within the limits of their precincts, as well as presence in the lists of those citizens, who died or left their precincts. As a result, tens of thousands of Ukrainian citizens, who have right to vote, were prevented from affecting their constitutional right to freely elect the President of Ukraine. Unusually high number of such mistakes, comparing to those at the previous presidential elections and the latest parliamentary election, during which those mistakes were extremely rare, convincingly evidences about the rude violation of the fundamental principle of the election process – the universal suffrage.
Second, during the stage of election campaigning, there was open abuse of the constitutional principles of equal suffrage and free election, provided for in Article 71 of the Ukraines Constitution and Articles 3 and 6 of the Ukraines Law on Election of the President of Ukraine, as well as principles of lawfulness and prohibition of anyones unlawful intrusion in the election process; equality of all presidential candidates; freedom of election campaigning, equal opportunities for all presidential candidates in their access to the mass media; unbiased attitude toward the presidential candidates on the part of the central and local governmental agencies, businesses, offices and organizations, their top managers, other officials, which is provided for in Article 11 of the Ukraines Law on Election of the President of Ukraine.
There is convincing evidence of mass violations by all national audio and visual mass media of the fundamental principles of information activity: guarantee of the right to information; openness of, access to information, and freedom of its exchange; objectivity, plausibility of information; completeness and accuracy of information, which are provided for in Article 5 of the Ukraines Law on Information.
The presidential candidate opposing to the current authorities was practically in the informational blockade arranged by the state. He was not only deprived of the opportunity to present basic points of his election program, but he was also deprived of the right to openly disprove the false information spread by any national audio or visual mass media. Moreover, during the election process, court rulings were not executed, according to which the courts obliged specific TV channels to provide live broadcast for the presidential candidate to disprove false and openly insulting information about him. In the same time, other presidential candidate, who represented the current authorities, enjoyed a most favorable regime in all national and regional mass media. As a result, voters were not provided with the conditions conducive to their free forming of their future vote.
Besides, despite the direct legislative prohibition of election campaigning in support of one of the presidential candidates, overwhelming majority of top managers and other officials of central and local governmental agencies, top managers of businesses and offices partly owned by the state, openly took part in the election campaigning, thereby openly violating the principle of objectivity toward the presidential candidates on the part of executive power, local governmental agencies, businesses, offices, and organizations, their managers and other officials.
Third, during the stage of voting, there were mass violations of principles of citizens free-will participation in elections, individual and secret vote. The prime evidences of it are the facts of organized mass voting off the precincts to which voters were registered, thereby the corresponding norm of the Ukraines Law on Election of the President of Ukraine was compromised. We consider that the voting off the registered precincts by organized groups of voters is a direct evidence of open abuse of the law. The prearranged movements of great numbers of voters were caused not by an objective need of those people to leave their places of permanent residence, but by will of the organizers of those movements. Therefore, we consider that this right was used not in order to provide for subjective voting right, but as a way to influence the free will of certain groups of voters, and, as a result, in order to compromise the actual will of citizens during the election.
Besides, the mass violations of principles of free elections, secret direct vote, publicity and openness of the election process are evidenced by the facts of arbitrary and unlawful deprivation of right to be present at a polling station during the vote and during the vote count to members of the mass media, official observers of one of the presidential candidates, official observers from international organizations. The official observers in the Kharkiv region, the Kharkiv Human Rights Protection Group, possess the documented evidence of the above.
2. The Law of Ukraine on Election of the President of Ukraine directly prohibits election campaigning by means of providing voters with money, goods, services, or help for free or on favorable terms, etc. Meanwhile, one of the presidential candidates, who held a position of Ukraines Prime Minister, used as one of the methods of his election campaigning the increase in social cash payoffs – pensions, scholarships, individual social benefits – at the expense of the state. To that measure, as to an advantage of this presidential candidates election program, managers of the current Prime Minister election campaign drove the primary attention.
We consider that, although these actions are not directly prohibited by the Ukraines Constitution and Law on Election of the President of Ukraine, they undoubtedly contradict the spirit of the Law and international standards of free and democratic elections, as they rudely violate principles of free elections and equal suffrage. Moreover, those cash payoffs were not included in the Ukraines Law on State Budget for 2004, therefore that decision on the part of the Ukraines Cabinet of Ministers was motivated solely by politics. Neither presidential candidate is entitled to use state funds for his own election campaigning.
3. According to generally accepted international standards of democracy, its substance is constituted by the close adherence to legal procedure. Democracy is a complete certainty of the procedure along with the uncertainty of the results. Therefore, the mass violations of democratic principles during the preparation and conduct of the 2004 Ukraines presidential election almost completely deprive their outcome from their legal content. Simply speaking, elections with substantial violations of the required legal procedure cannot be considered elections as such.
In the view of the aforesaid, we consider that the mass violations of the fundamental principles of election process during the Ukraines presidential election make it impossible to establish an outcome of the actual will of Ukraines citizens. It violates fundamental Article 5 of the Ukraines constitution, according to which «the people is an undertaker of the sovereignty and source of the power in Ukraine,» and Article 3, according to which «rights and freedoms and their guarantees define the content and direction of the states activity.»
Therefore, we consider that the Supreme Court of Ukraine has a necessary legal basis to declare the decision on validation of the run-off election results made by the Central Election Commission of Ukraine (CVK) unlawful, cancel it, oblige the CVK to make a new decision according to the Ukraines Law on the Central Election Commission and Law on the Election of President of Ukraine, and declare invalid the voting results at those polling stations throughout Ukraine, where the mass violations of the fundamental principles of election law have been recorded.
Yuriy Baulin, Doctor of Law Sciences
Viktor Kolisnik, Doctor of Law Sciences
Volodymyr Bogutsky, Candidate of Law Sciences
Fedir Venislavskiy, Candidate of Law Sciences
Viktor Kichun, Candidate of Law Sciences
Oleksandr Kushnirenko, Candidate of Law Sciences
Boris Olkhovskiy, Candidate of Law Sciences
Stanislav Pogrebnyak, Candidate of Law Sciences
Vsevolod Rechitskiy, Candidate of Law Sciences
Mykhaylo Sibilyov, Candidate of Law Sciences
Tetyana Slinko, Candidate of Law Sciences
Yuriy Tkachenko, Candidate of Law Sciences
Robert Khorolskiy, Candidate of Law Sciences
Olena Shostko, Candidate of Law Sciences
This constitutional and legal analysis is open for signing by other experts in the field of law also.
Statement by the Kharkiv Human Rights Protection Group concerning the political events in Ukraine (as of 23 November 2004)
In view of the way the political situation in Ukraine is developing, the Kharkiv Human Rights Protection Group (KhPG) feels obliged to state the following:
We have the reliable information about an unusually high number of violations of the election law in the Kharkiv region and other regions of the country during the run-off presidential election. We will present a detailed list and analysis of those violations later, according to the law. Nevertheless, we already can testify that supporters of the candidate backed by the authorities carried out the overwhelming majority of the actions.
The violations of the election law were bluntly cynical and undisguised. They were accompanied with the pressure over members of election commissions, independent monitors, members of the press and TV. Unfortunately, we cannot consider those violations occasional or isolated. We have an impression that all of them were foreseen beforehand as a part of the authorities strategic plan providing for mass fraud over the results of the presidential election – in effect, the constitutional detat.
We believe, during the run-off, the technologies used were in substance and form criminal acts, directly regulated by the Ukraines Criminal Code. Those violations in no way correspond with the international law, European standards of human rights and democracy, expressed in such documents as the 1950 European Convention on Human Rights and Fundamental Freedoms, Document of the Copenhagen Meeting of the Conference on the 1990 Human Dimension at the CSCE, 1990 Paris Chart for New Europe, etc.
We claim that in Ukraine «rights and freedoms and their guarantees define the content and direction of the states activity. The state is responsible for its actions before a person. The main responsibility of the state is establishment and provision of human rights and freedoms» (Article 3 of the Ukraines Constitution).
Reminder: according to the Ukraines Constitution, «the people is an undertaker of the sovereignty and source of the power in Ukraine,» which «performs the power directly and through agencies of state authorities and agencies of local government» (Article 5).
In this special political moment for Ukraine we also assert that the protection of fundamental civil rights can be as well carried out by the use of democratic uprising, which is an extreme, but entirely legitimate element of the world constitutional culture.
It is widely known that the democratic uprising is provided for in the 1949 Germans Constitution, which secures the right of German citizens to resist anyone, who would venture to encroach on their democratic way of life, in case when other means could not be used.
Article 23 of the 1992 Czech Constitution says that citizens have right to resist encroachments on the democratic principles of human rights and fundamental freedoms, in case when work of the constitutional bodies or active use of legal norms would become impossible in the country.
The legitimacy of the democratic uprising aiming at the protection of citizens rights and freedoms is also mentioned in Article 120 of the 1975 Greeces Constitution, Article 32 of the 1991 Slovakias Constitution, Article 54 of the 1992 Estonias Constitution, Article 3 of the 1992 Lithuanias Constitution, etc.
The Kharkiv Human Rights Protection Group once again stresses that the highest value of the constitutionalism and rule of law state is political freedom of the people. The freedom of the peoples will constitutes the main content of the 1996 Ukraines Constitution.
We declare our full support of the actions on the part of the Ukrainian citizens on the Independence Square in Kyiv.
We believe that leaders of the opposition will prove their wisdom and the people will restore truth and freedom in the near future and without intolerable sacrifices by the both sides.
We believe in the reason of the Ukraines Parliament – the Verkhovna Rada of Ukraine – and express our hope that in this crucial time for Ukraine it will find adequate legal measures ad hoc and manage to settle the conflict by legislative means.
We also believe in the adequate humane reaction to the events by the Guarantor of the Ukraines Constitution – the President of Ukraine.
We stress that the restriction of freedom of movement for the Ukrainian citizens, which takes place these days and hours around the Ukraines capital of Kyiv is illegal. It can be used exclusively in the state of emergency, which is announced by a decree of the President of Ukraine and informed to the UN and is legitimate only when it is confirmed by the Verkhovna Rada of Ukraine.
We believe that the political freedom of the Ukrainian people will be restored in the near future by the legal means, and truth, therefore, will prevail.
Kharkiv Human Rights Protection Group
23 November 2004
Statement of the Kharkiv human rights protection group on the run-off presidential election in Ukraine
The preliminary results of the run-off on November 21, which were announced by the Central Election Commission (CVK), evidence a large-scale falsification of the election in some regions of Ukraine.
According to the CVK data, on October 31, 27 897 559 people voted, at the run-off, on November 21, 30 511 289 people voted. So, 2 613 730 more people took part in the voting. We claim that one of the sources of the increase in votes for presidential candidate Viktor Yanukovich was the use of these additional 2.6 million votes by means of rude and cynical violations of the election law. How has it happened?
First, voter lists for the run-off election in some regions were compiled with violations of the standing law. The sharp increase in the number of voters, what is, according to Article 80 (Part 1, Para 1) of the Law on Election of the President of Ukraine can be a basis for declaring the election invalid. For instance, according to international observers of the ENEMO (European network of public organizations monitoring elections) from Russia, Belarus, and Azerbaijan, voter lists in the Donetsk region were inexplicably increased comparing to those for the first round.
Second, in many areas, polling station commissions (DVK) received «plans» for providing turnout of voters during the second tour of election. There are records evidencing that in the period between the first and second round those people, who did not vote at the first round, were forced to vote for Yanukovich. In order to achieve that, there were used such unlawful actions as mass rounds of residences by strangers, who were not members of DVKs, though were in possession of voter lists with marks showing who did not vote on October 31. Those individuals tried by any means to find out the reason of residents nonparticipation in the voting (the relevant facts are captured on video). Later those residents were subject to administrative pressure. For instance, a rector of the Kharkiv Polytechnic University called those instructors, who did not come to vote at polling station 12 of territorial district (precinct) 172, for «brain-washing.» On the voting day, DVK members recorded those, who did not vote, as well as they phoned the voters or passed their personal data to other people, who one way or another forced the voters to come to the polling station. That was particularly the case for polling stations located in schools, where teachers went to parents of their students, hospitals, where doctors approached their patients. Such actions are beyond the competence of DVKs, described in Article 27 of the Law, and directly violate its Article 5.
Third, there were mass voting by the same people with several «off-list tickets» (certificates authorizing a person to vote off the precinct, where he or she is registered), reported by observers in all regions of the East, Center, and South of the country. That added tens of thousands of votes to the coffer of falsification and became an example of undisguised and cynical abuse of the law. So, the election results at such polling stations must be cancelled by courts.
The pressure to vote for Yanukovich was used also by forcing students of some universities and cadets of police academies, who were forced to vote on the premises of their school under the supervision of schools administrations. For instance, students of the Kharkiv Agricultural Academy were told to take off-list tickets and vote on the premises of the Academy, and 300 cadets of the National University of Interior were just moved out to the town of Valki (the Kharkiv region).
A lot of violations were recorded on the voting day. They include unusually high number of voting off polling stations, accompanied by numerous violations (at some polling stations in Donetsk, voting off polling stations made up from 20 to 30%, along with the significantly lower number of applications to vote at home); unfounded removals of official observers representing Viktor Yuschenko at many polling stations, especially during vote counts; so called «merry-go-rounds,» when designated individuals voted for those in the list, who were unable to vote and in the end for those, who did not come; injecting ballots into ballot boxes; violating of vote count procedure, etc.
The falsification at the polling stations, where Yanukovichs victory was expected, was merged with the violence at the polling stations, where Yuschenkos victory in the first round was «unplanned.» For instance, there were numerous assaults by, in some cases, armed strangers wearing civilian clothes on election commissions and observers aiming to disrupt voting or vote counts. In the Sumy region, several people, while defending the ballots, sustained bodily injuries. Against this background, prohibitions to film, mass denials of access to members of the media to observe vote counts looks like rather minor offences.
The mass, systemic nature of those falsifications shows that they were preplanned as integral parts of the authorities strategic plan to obtain a necessary percentage of votes for presidential candidate Viktor Yanukovich – in fact, a constitutional coup detat.
To sum up the above, we believe that during the run-off election the technologies used, in their substance and form, have criminal content, and, then, fall under the provisions of the Ukraines Criminal Code. These violations in no way correspond to international law, European standards of human rights and democracy. Obviously, these actions on the part of the authorities aroused anger in millions of people, who went into the streets of Kyiv, Lviv, Kharkiv, Sumy, Vinnitsa, and many other cities and towns of Ukraine. The only legitimate way to break the impasse is the review of the election results at those polling stations and precincts, where substantial or mass violations of the law have been recorded. We demand from the CVK to, at last, perform its duties in diligent way and impartially review the election results.
On the results of the run-off election in the Kharkiv region
According to the parallel vote count as it was made from the original reports by 23:00 of November 22, voters in Kharkiv and the Kharkiv region gave Viktor Yushchenko 24.34% of votes (28% in Kharkiv), Viktor Yanukovich – 69.89% (65% in Kharkiv), 4.1% of them voted against both candidates. A number of people who voted increased in the city by 10.5%, in the region – by 6.5%. In our opinion, that was the result of a rude violation of the Law on Elections in the form of forcing people to vote and mass voting with off-list tickets, both in the city and region. On the whole, there were compiled about 2,000 reports about violations of the Law.
For instance, there are records about LAZ buses (license plates 6424 Р7 and 7551 Р1) with cadets of the Air Force Institute, who voted in the village of Gorodne, Krasnokut District (polling station 101 ТОВ 183) and other villages. All in all, 4 buses with cadets of this institute traveled back and forth in the area. Firemen cadets came to polling stations 26 and 27 in the village of Oleksiyivka to vote with off-list tickets (Ikarus bus, 3431 ХА), they also visited the village of Vodyane. In the Zachepilovka District, at several polling stations in the villages of Berdyanka, Mazharove, and others, passengers of deep-blue Volkswagen minibus (25393 ХВ) voted with off-list tickets. Military personnel voted with off-list tickets in the town of Lozova (School No. 1) and Kupyansk (polling stations 80 and 81). A white Gazel minibus (4367) with 19 passengers, accompanied by a Volga car (100-02-ХФ) rode around District No. 184, where they voted at various polling stations. Employees of the Kharkiv regional State Administration (regional health, housing and other departments), in 5 buses left the citys central square, likely, to vote in the districts of the region. Their departure was filmed by Volodymyr Mukhin, a representative of the Ukrainian Ombudsperson and Kostyntyn Sytnyk, a member of the Ukrainian Parliament.
MP Yaroslav Dzhordzhik found that at polling station 168 of precinct 179 in the village of Mospanovo (Chuguiev District) 439 people voted with off-list tickets (in total, the voter list there included 1,200 people). In the same village, a «merry-go-round» was filmed also. In two cars with Russian license plates, strangers gave away ballots, marked for Yanukovich, and paid UAH100 ($19) for clean ballots. The polling stations head prevented Dzhordzhik to enter the station, claiming that his MPs certificate was forged. Later, when Dzhordzhik returned to the village, a column of cars without license plates blocked his car, strangers forced him to get off the car, took away his mobile phone, and drove him to polling station 168.
In Kharkiv, buses and cars rode between polling stations, while their passengers voted with off-list tickets. For instance, students of the Road Transport Academy voted at the Institute of Medical Radiology (polling station 174 of precinct 172). At the territory of precinct 176 (Kominternivskiy and Chervonozavodskiy Districts), a LAZ bus with Kharkiv license plate toured over polling stations 22, 24, and 26. There was recorded a ride between polling stations of a Ford minibus (921 52 ХК) and a gray Volga car (1523 ВК). The Volga car drove four women from one polling station to another in the Dzerzhinskiy District, witnesses saw them holding 10 to 20 off-list tickets. They were seen, in particular, near polling stations 72 and 58. In the Frunzenskiy District, there was seen a PAZ bus (215-09 ХА). Its 10 passengers voted, at least, at three polling stations.
There are records of numerous facts of forcing observers representing Yuschenko and even violence. For instance, in the Izum District, in precinct 180, Andriy Propotilov, a deputy head of «Our Ukraine» district headquarters, was assaulted. On the road between villages of Mykhailivka and Kapytolivka, his car was stopped by a car, from which two strangers got off. They broke a windshield of Propotilovs car and damaged his video camera.
A lot of violations deal with the voting off polling stations. At precinct 183 (Valki District), lists for voting at home were separated in several pages, which were sent for voting in several cars. In those cars there were «no» room for observers representing Yuschenko: DVK members were accompanied with a police officer, so the observer was not needed. Mass rides with boxes for home voting without Yuschenkos representatives were noticed in the Vilikiy Burluk District and others. In the lists for home voting, there were included people, who did not applied for it, their applications were written after the voting was finished by one hand (polling station 117, precinct 182). At polling stations 73 and 85 of this precinct, the DVK members disappeared with the ballot boxes and were not found. At polling station 3, precinct 183, voters were unable to vote because somebody wrote in their name applications for home voting.
At polling station 12, precinct 181, 100 people voted in the open field. There are records of many facts, when people voted twice at different polling stations.
At some polling stations, members of law-enforcement agencies and local state administrations intruded in the work of TVKs (precinct commissions). There were a few facts of campaigning in the day of voting and preparation of clean reports with signatures of DVK members.
In most polling stations in the city and region, members of the press (newspapers Razom, Skhid-Zakhid, Pryvatna Sprava, Pravo Znaty, bulletin Prava Ludyny, etc.) were not allowed to film and be present during vote counts. A TVK of precinct 171 (Dzerzhinskiy district) even adopted a special order on the matter on November 21, which said that only those journalists were allowed, who had certificates and pictures. It unfoundedly narrowed the provisions of the Law prescribing that meetings of election commissions and premises of polling stations can be attended by «members of the media (no more than two from one entity). «
25 November 2004
Information materials of Media-Group «OBJEKTIV,» Agency Television News, Kharkiv Branch of the Committee of Voters of Ukraine, Kharkiv regional headquarters of V. Yuschenko, Kharkiv Human Rights Protection Group were used in this statement.
Will we struggle for our liberty?
We got the information from a small village of Bilka of the Radomyshl district (the Zhytomir region): an incident occurred during the calculation of votes at the election station. Head of the district land department Oleksiy Shkabara, an observer from the Party of Regions, hided behind two women and made marks for V. Yushchenko in 30 bulletins. Other members of the commission noticed this offence and raised a clamor, but the district boss swore at them, intimidated the members of the commission (mainly women) and said that they would prove nothing, and, if they would not rewrite the protocol, this would be done on the way, in the forest. He forced them to open the already sealed envelope with five bulletins, which had been acknowledged as invalid, and to add there 30 more bulletins spoiled by him.
Several days later representatives of Viktor Yushchenkos district headquarters came to Bilka and tried to persuade the members of the commission to hand the complaints against the criminal actions of O. Shkabara. Yet, nobody dared to write such complaint: they were afraid of the revenge.
Well, is it possible to help the people, who do not want to struggle?
I understand well that the fears of the village women are not ungrounded. They would be braver, if the Law acted inevitably, if the criminal case was started immediately against O. Shkabara and the accomplices of the crime (Article 158 envisages incarceration for the term from 3 to 8 years for «forgery of election documents»). Otherwise it is difficult to prove to them that everyone must do his best for our liberty, or we will never be free.
The number of people, who voted in the Kharkiv region, is more than the quantity of permanent population
The observers believe that about 10 thousands of false bulletins were thrown to ballot boxes in election circuit No. 183 of the Zmiyov district.
The facts in favor of this hypothesis:
- the number of people, who voted in the district, is 10 thousand more than the quantity of permanent population of the district;
- all in all, 12 thousand persons in the region could not take part in the voting because of errors in the lists of voters.
The «throwing in» of the false bulletins was realized by the members of the commissions. A bulletin, which is fold in four and thrown into a box, means that there are one or two bulletins «for Yanukovich» inside this folded bulletin.
As a rule, every district election commission in the district included one or two members from V. Yushchenko. According to the law, a protocol can be acknowledged as valid even if one or two members of the commission did not sign it. So, the heads of DEC presented the prepared beforehand protocols without signatures of the commissions members from V. Yushchenko.
Now, by the order of the district state administration, the heads of village councils conduct the monitoring of the cases of non-appearance of villagers to the election with the aim to learn the needed quantity of bulletins «for Yanukovich».
Odessa opposition does not believe in promises of the power to liquidate drawbacks
On 3 November a press conference of Volodymir Lemza, the manager of the executive committee of the Odessa city council, was held in Odessa. The press conference was devoted to the first tour of presidential election and the drawbacks revealed during it. The power assured that the second tour would be more perfect. Opposition does not believe in this.
One of the most significant drawbacks, which were revealed in Ukraine, in particular in Odessa, during the conduction of the presidential election, was the existence of voters that had not been included into the lists, stated V. Lemza at the press conference. The Odessa voters came across such problems rather frequently.
It became known to journalists that the special commission had been created in Odessa, which would clear up the reasons of disappearance of some voters from the lists.
By the words of Volodymir Lemza, one of the reasons of the mentioned problems was the improper fulfillment of their duties by the workers of dwelling-communal services, passport clerks and the officials, who had to control this work.
In several days the heads of district state administrations will organize the visits to voters with the aim to make the lists for the second tour of the election more exact and deliver the invitations to election stations. The district and city power will apologize to the citizens, who could not realize their constitutional right to give their votes for one of the candidates during the first tour because of their absence in the lists of voters.
By the information of the press service of the city council, such problems almost did not arise before, since the absent names were inscribed in the lists on the day of voting. Now, in the connection with modification of the law, this procedure has been complicated. Surname of a voter may not be entered to the list at an election station – this may be done only after corresponding decision of territorial election commission or court.
At the same time, Odessa mayor Ruslan Bodelian has already signed the order about the creation of the commission for check of the facts of non-inclusion of citizens to the lists for voting.
According to this order, the information must be rendered to the mayor about the check of the facts of violations committed by executive organs of the Odessa city council during the preparation to the election of the President of Ukraine, as well as the propositions about bringing to responsibility of the authorities guilty of these violations.
However, the Odessa headquarters of Viktor Yushchenko does not believe in sincerity of the city power. Representative of the headquarters Andriy Ishchenko is sure that «the city power is interested in the drawbacks connected with the lists of voters, because this makes possible falsification of the results of the election. The power is not able to solve these problems».
MP of Ukraine Yuri Karmazin reckons that falsifications of the enormous scale took place during the first tour of the presidential election in Odessa.
Yuri Karmazin: «In circuit 137, at election station 80, which includes the Juridical Academy and which is headed by Sergiy Kivalov, the head of the CEC, who had given buses for the meeting with Yanukovich and who had sent his students to this meeting, even there 600 voters out of 1200 were in the additional lists. So, what can be said about the agreement and verification of the lists?… No new houses have been built on the territory of this circuit. I know every house there. Similar situation was observed everywhere in Odessa».
The city power took part in the falsifications. First of all, the activists of the Party of regions and city administrations proposed the so-called «technical candidates» to the election commissions. They were the persons, who had figured in the case connected with investigation of the criminal case on falsification of the parliamentary election-2002 and the election of Odessa mayor.
We disclosed the facts, when the members of election stations got 400 hryvnias for provision of the needed results. MP Yu. Karmazin, the leader of the party of defenders of Motherland, believes: «The mayor must apologize to the Odessa dwellers for such humiliation of the members of election commissions, who worked in unadapted rooms. In particular, there were no windows in some rooms, where about 50 observers stayed during the whole day. This caused discontent of the people. I say nothing about the so-called «closed» stations, where noticeable falsifications were revealed».
3 November 2004
Election in Nikopol
During the recent election I have been the head of district election commission No. 19 in notorious election circuit No. 35, where, during the last parliamentary election, the competition between O. Zhir and head of the criminal militia of Dnepropetrovsk Mr. Drachevskiy, a protégé of Mr. Pinchuk, took place. K. Lishchenko, an empowered person of V. Yushchenko, turned to me with the entreaty to occupy this post, when my predecessor got to a hospital with infarct after the first sitting of the district election commission.
The power made everything to guarantee the places in the election process to the cadres that took part in the last parliamentary election: Mr. Shvets, the head of the TEC, came from Kyiv, his deputy Lopatko appeared too, and in the district commission, where I came, the complete composition of «professionals» of the previous convocation were sitting under the placards of the pro-power candidates. So, the secretary of the commission became a representative of Kozak, the deputy – of Baziluik, and so on. As early as at the first sitting they had occupied all paid posts, so I became the head-volunteer with the frank wish to serve the truth.
It was not easy to establish order in the commission, but I acted firmly and spent the greatest part of my time for that. It appeared that in fact the commission was ruled not only by curator from the town executive committee, but also from the regional educational department, since the commission worked in the building of the technical lyceum (a former vocational school). I had to prohibit categorically to the paid members of the DEC to fulfill any orders of those, who illegally meddled into the election process.
The lists of voters were the main problem, as well as throughout Ukraine. I directed three petitions on this problem to the TEC and the organs of local self-government.
During the work of the commission, before the voting, we considered and satisfied the complaints of more than 300 voters (out of 2156 registered in the lists), who found various mistakes in surnames, etc. Yet, about 40 persons, who had not come to the election station for checking of the lists, could not vote on the day of election. Some of them -- 17 persons went, after long suasion, to the TEC and the local court, and then returned and voted. Others did not do that, since, by words of the TEC head Mr. Shvets, on this day more than 3000 voters stood in queues in court and the TEC in Nikopol.
On the eve of the election we got the information that four carriages with persons with the off-list tickets arrived to the town. We were waiting for them and thought how to oppose this crowd, but nobody came except 12 persons.
1434 voters (65%) voted at our election station. There were no complaints from observers, except the act from a representative of candidate Boyko, who wrote that an observer from Yushchenko had a bag with the slogan «TAK!» («YES!», the slogan of V. Yushchenko – Translators note) thus carrying out the agitation for Viktor Yushchenko.
Yanukovich got 45% of votes, Yushchenko – 28%. These numbers are typical for the entire region. Yet, I am glad that I personally rejected 20 bulletins, which were classified by a teller-member of the commission as votes for Yanukovich, although there were different marks on these bulletins.
Commentary to the events during Presidential election in the Ternopil region
The problems began to arise as early as several weeks before the election. So, the Chortkiv district election commission got the consignment of small ballot boxes… without bottoms. On the eve of the election it became known that some election stations in the Zbarazskiy and Zborivskiy districts were not provided with ballot boxes at all, and the commissions had to take the «emergency measures» for the conduction of voting at these stations. Because of carelessness of district commissions in the Shumskiy, Kremenetskiy, Berezhanskiy and Terebovlianskiy district the changes were introduced into voting papers, which changes were not agreed with the Central election commission.
Yet, the greatest number of problems arose, like in other regions, on the day of election. These problems were connected with the mistakes in the lists of voters. Some apartment houses and even parts of streets were «lost» in some election districts. Names, surnames and dates of birth of voters were distorted. At previous presidential and parliamentary election the district commissions had the right to correct such mistakes, but now the voters have to turn to court or territorial election commission in order to defend their right to participation in the election.
I was a witness of the situation, when an elderly married couple came to the Chortkiv circuit commission from the village of Zalissya satiated at a distance of 30 kilometers from the district center. These people, and they are about 80-years-old, lived in this village during all their life. So, they could not understand, why they had not been included into the voting lists, and they had to go to the town. Yet, naturally, not all voters were able to struggle for their franchise. The majority of people, «missing» in the lists or registered in the lists with mistakes, could not vote, especially in rural area. The situation in towns was somewhat better, but even there not everyone could stay in the long queues in order to hand the applications about their inclusion to the lists… The Chortkiv district election commission satisfied 480 complaints of voters concerning their non-presence in the lists, and, at the same time, the number of such complaints handed to the Ternopil town commission was about 1500.
The role of local courts in the protection of rights of voters is a separate painful problem. Some judges, for instance in the Zbarazskiy, Pidvolochiskiy, Lanivetskiy, Borshchivskiy and Gusiatinskiy district courts, worked industriously and considered scores of voters complaints every day, but the position of other judges may be regarded only as sabotage. So, judge of the Chortkiv district court L. Kviatkovska did not consider any complaints of voters on the day of election. The people, who turned to the court on this day for the protection of their franchise, confronted with absurd and illegal condition: to pay the legal expenses and to compile the complaint in presence of an advocate…
It appeared in the course of calculation of votes that not only some election commission were not ready to the election, but also some voters, who, because of ignorance of laws, filled the bulletins incorrectly. As a result, the district commissions of the region acknowledged as invalid 14 thousands of bulletins. I reckon that those, who actively agitated for one candidate, but did not care about enlightenment of voters, should meditate on that.
Many misunderstandings arose around the questions connected with inclusion to voters lists of the citizens, who worked outside Ukraine – there are many such people in the Western regions of our country. Some of them deliberately returned home on the day of election and were refused to be included into the lists. In these cases the commissions referred to the Law «On the freedom of movement and free choice of place of residence in Ukraine», according to which «the permanent place of residence is the administrative-territorial entity, where the person lives for more than six months per year». Thus, if a man, for instance, did not live in his village for two years, he was not included in the lists and was proposed to vote «in his Poland» or «in his Italy». At the same time, the Law of Ukraine «On election of the President of Ukraine» (Article 2) reads: «The citizens of Ukraine, who are 18 years old on the day of the election, have the right to participate in the election of the President of Ukraine… Any direct or indirect privileges or restriction of the election right of Ukrainian citizens connected with race, color of skin, political, religious or other views, sex, ethnical or social origin, property status, place of residence, language or other characteristics are prohibited». Everybody knows that the majority of our compatriots work abroad illegally, so they avoid any contacts with the official institutions and cannot protect their rights and interests. At the same time, the doubtless priority in this situation is the fact that all these people are citizens of Ukraine, so nobody may restrict their right to elect the head of the state by the «general, free and direct» voting.
Violations observed in the course of the election in the Chernigiv region
The Chernigiv public committee of human rights protection (the ChPCHRP, in what follows), in the framework of work of the informational center «Human rights during elections» and the project «Active protection of election rights-2004» realized with the support of the Swiss Agency for Development and Cooperation, spreads the information about violations of human rights connected with the election process and violation of operating laws disclosed during the voting and calculation of votes on 31 October 2004 on the territory of the Chernigiv region.
On 31 October 2004, since the moment of opening of election stations, the following violations were fixed.
Election station No. 7 of election circuit No. 208 (situated in secondary school No. 1): ballot boxes are located beyond the sight of voters (violation of Article 74 item 1). The information given by voter Oleksandr Shtan (83/14 Peremogi Ave., Chernigiv).
Election station No. 101 of election circuit No. 208 (auto-park): informational placards of the candidates to Presidents post are stored on the table in a corner of the room, although they must be arranged in alphabetical order for general access of voters to this information (violation of Article 74 item 5). The information of the ChPCHRP.
Election station No. 38 of election circuit No. 208: the group for organization of voting outside the election station consists only of two persons – the head and secretary of the commission (violation of Article 77 item 4); ballot boxes are located beyond the sight of voters.
Violation of Article 57 item 2 was disclosed at 49 Uritskiy Street: the agitation placard «Our town is for Yanukovich!» was hanging on a balcony of the second story of the apartment house.
Election station No. 188 of circuit No. 213, township Sosnytsya: one of the members of the group, which organized the voting outside the election station, went to the voters with video camera, recorded the process and agitated for candidate to presidency V. Yushchenko. The voting with this ballot box was acknowledged to be invalid.
Election station No. 74 of circuit No. 213, township Berezna (the Mena district): 4 militiamen and 10 voluntarily assistants of militia stand near the entrance to the station and demand documents from every person, which wants to come in; in the morning of 31 October the members of the commission were made to remove all programs of the candidates.
Stations Nos. 73, 74 and 75 of circuit No. 213, township Berezna: the observers and members of the commissions «help» to old people to vote entering the polling booths with them.
In the town of Mena the district court had no time to process the complaint against the errors in the lists of voters: the court receives up to three complaints per minute.
In Chernigiv the agitation placards (without dateline) for candidate O. Moroz are placed in many places, most often near the election stations.
Violation of Article 57 item 2 was disclosed at 103 Peremogi Avenu in Chernigiv: the agitation placard «For Yanukovich! Choice-2004!» was hanging on a balcony of the third story of the apartment house.
In the Mena, Sosnytsya and Chernigiv districts (election circuits Nos. 209 and 213) the number of persons with the «off-list tickets» was rather great. Even at the election stations situated in faraway villages with population up to 100 persons the number of such persons was from 5 to 10.
Election station No. 71 of the 213th circuit (the town of Mena) got the defective ballot box (made in Kramatorsk of the Donetsk region), which could not be used (the act was compiled about that), so there was one box less at the station.
In the village Zaytsy of the Chernigiv district, at election station No. 135 of circuit 209, observers G. Korshok and M. Grishchenko noticed, during the voting, that some of the members of the commission voted for several times, every time putting a bulletin to the box.
In the evening of 31 October 2004 young people began to gather near the building of the central election commission, and some militia officers spread the information that these persons were the warriors of the UNA-UNSO. Representatives of the ChPCHRP, who came to the place, found only a small group of students.
At election stations in the towns Mena and Koriukivka not all bulletins were got from the safe after the opening of the stations at 8:00.
The number of bulletins passed to election station No. 77 of circuit No. 213 (the town of Koriukivka) was 190 less than the number of voters in the lists.
Several cases of presence of the off-list tickets, which had been taken from voters, but not signed, were registered in district election commissions.
There were several complaints concerning the work of election station No. 101 of circuit No. 208 from aged people, who claimed that the commission had refused to accept their applications about voting at home; motivating the refusal with the absence of transport.
The complaints from observers were received from some election stations, which read that the members of the commissions regarded as valid the bulletins, which contained marks near the surnames of all candidates.
The protocols, which were passed to territorial election commissions, contained many mistakes, some protocols were rewritten by the members of district election commissions in the territorial commissions.
Punishment for work
The attack on the house of Svetlana Stogieva, a member of district election commission No. 128, was committed in the village of Zaaydarovka of the Novoaydarskiy district of the Lugansk region.
The windows were broken and the fence was knocked down. The attackers cursed and cried out threats. Children stayed in the house during the attack, who went into hysteric. The victim called militia from the district center, but the law-enforcers have not reacted yet.
21 November 2004
Ukrainian Helsinki Group of human rights
(In the Internet: www.rupor.org )
Militia kidnaps the observers
Three observers were kidnapped from election station No. 87 in Lutugino of the Lugansk region. A militia officer checked their documents, and then six brawny men forced the observers into two cars. Two of them were released at a distance of 7 kilometers from the village of Stepanovka of the Perevalskiy district. They were deprived of dictaphones, video camera, cell phones and almost all money. The lot of third observer Evgeniy Voytovich is not known until now.
21 November 2004
Lugansk branch of the VCU informs
It was ordered to spoil bulletins during the run-off election
On 4 November the “analysis” of the past tour of presidential election was held in school No. 135. Naturally, the power is not quite satisfied with the election results. Judging from “temniks”, it was planned that Yanukovich would win in the first tour… Kharkiv had to give about 80% for the pro-power candidate. Yet, this did not happen.
So, the “training” was conducted for all teachers, who were the members of the commissions. Former school superintendent Koziulia ordered to spoil the bulletins handed for Yushchenko in the second tour. The commission members had to write another mark near Yanukovichs name in such bulletins thus making them invalid.
Respected teachers, other members of commissions and observers!
You must remember that there is an article in the Criminal Code of Ukraine that envisages responsibility for such actions! Do you want to get to prison for some trifling sum? Our observers and lawyers are ready for such violations and will not feel sorry for you.
Respected “ardent agitators”, provocateurs and other administrative workers!
We advise you to think before making such appeals. The candidate from power did not win in the first tour of the election, in spite of mass falsifications throughout Ukraine. The CEC will announce the final results of the voting in several days… Do not do any “precipitate movements”. Think about your future, about your further work. Clever people never put all eggs into one basket. Yushchenko has more chances to win in the second tour, since the votes for Moroz, some communists and Kinakh would not be given to Yanukovich.
The voters, whose names were purposely distorted or missed in the lists, would also vote in the second tour.
So, do not risk! You can lose everything. Do not try to falsify the election.
Press-service of the Kharkiv regional
headquarters of V. Yushchenko
Whether the authorities exerted pressure on the election in Kharkiv?
The opinions of foreign observers, who have supervised the course of the Presidential election in Kharkiv, are different: Russian experts say about legitimacy and transparency of the election, and the observers from other countries insist on the mass use of administrative resource and the attempts of local authorities to affect the opinion of voters. 71 foreign observers supervised the election in the Kharkiv region: 26 representatives from the OSCE, 6 – from the Ukrainian congress committee (Canada), 2 -- from the National democratic institute and 2 – from the international organization “Freedom House”, 1 person represented the USA International republican institute, 7 – Georgia and 27 – the CIS mission.
Vladislav Petrovich, a representative of the Ukrainian congress committee, states that there were many cases of pressure on voters by the local power, in particular at the 171st territorial election station located in the building of the Dzerzhinskiy district executive committee. By his words, the officials of the Dzerzhinskiy district executive committee “controlled” the election and were personally responsible for the work of the district election commission. They stayed at the election station allegedly for the provision of the technical means for voting, whereas it was a competence of the head and members of the commission, but not the officials of the executive committee, says Vladislav Petrovich. The foreign observer regards this fact as meddling of the authorities into the election process, but he has not compiled the official protocol about this violation, and promised to pass this information only to the Ukrainian congress committee. The Canadian observer reckons that numerous mistakes in the lists of voters and presence of “dead souls” in the lists confirm the fact that the election in Kharkiv and the Kharkiv region hardly can be regarded as democratic.
On the contrary, representatives of the CIS mission assert that they did not notice any pressure on voters on the side of the authorities. In the opinion of Evgeniy Aliamovskiy, the fact of “control” over the election commission by the Dzerzhinskiy district executive committee cannot be regarded as a violation, since the provision of technical means for voting (communications, transport, rooms, etc.) is a duty of district authorities, but not of the election commissions. “I want to express our general assessment of the election, which we have observed… I believe that the election in the Kharkiv region was conducted legitimately and in concordance with the laws of Ukraine. As to the drawbacks, they cannot be a reason of non-legitimacy of the election”, declared Evgeniy Aliamovskiy.
In the opinion of Viktor Kuznetsov, another official observer from the CIS mission, the Ukrainian election was more democratic than Russian one. The coupons of the bulletins personify the responsibility of the members of election commissions for every bulletin handed to voters; the commissions, consisting of representatives of all candidates, and the large quantity of foreign observers make impossible the attempts to influence the course of the election, he believes. “We did not notice any pressure exerted by the authorities at the election stations”, insist the observers from the CIS mission.
Commentary by the Kharkiv human rights protection group on election-2004
As the Ukrainian media have already noted, the progress of the 2004 Presidential election is characterized by stiff, even savage confrontation between candidates nominated by different political camps, as well as by ultimately law moral standards of conduct manifested by the acting executive power.
We speak, though, not only about the notorious «administrative resource,» undisguised compulsion, pressure, even harassment exercised toward the population, which could hardly be assessed just as election campaign «for» and «against.» The pressure and harassment are not new for the Ukrainian voters. The compulsion was a mass phenomenon in the Soviet times. The dissidents were compulsory fed in mental hospitals, today the Ukrainian population is compulsory «fed» by the election big-boards with V. Yanukovich. It is not difficult to predict that the reaction to the informational compulsion will be similar to that on the nourishing solution compulsory poured into Andrey Sakharov or Petr Grigorenkos guts. «Love cannot be compelled,» says a Russian proverb, so the authorities even deserve our sympathy.
What is more important in the present election, though, is a clear ethical confrontation between the authorities and civil society, and that confrontation is of moral and revolutionary nature, rather than of political and opposition one. Once again, the countrys air is being filled with a breath of the Pragues Spring and long-drawn Velvet Revolution. The masses do not want to go the old ways, while the leaders do want to go the old ways, but cant do it well.
In this connection we recollect a social and psychological theory on «logic of conscience» by V. Lefebvre. According to that Western professor, the Soviet establishment adhered to the following rule: «The end justifies the means; everything is moral, what serves the victory of Communism.» At those times, a well-known Stalins joke, «How many divisions does the Pope have?» looked quite witty.
In time, though, despite the hundreds of divisions and iron discipline of the Communist ranks, the witty chief was removed from the Communist mausoleum. The emotions of life defeated the totalitarian order, the divisions drifted away, like did F. Engelss ash over the sea. In contrast, the Holy See has been still in place. And Greenpeace nowadays enjoys its respect only because it uses as explosive its ethical power. In the todays circumstances, V. Yushchenko uses his ethical power.
Therefore the confrontation between Yanukovich and Yushchenko is a confrontation between the «apparat» politics and common sense, rather than a confrontation between the authorities and opposition. It is the hypocrisy vs. sincerity; «paradoxality» of Dzhangirov-Korchinskiy-Pikhovshek vs. intellectual honesty; bureaucratic ethos vs. peoples freedom.
In due time, classics of political science V. Pareto and G. Mosca, relying on the vast historical material, have proved the inevitability of degradation of each and every elite. The most striking in their texts is the logical account over the dying of political classes. Morally exhausted elites resort to any means of self-preservation: engage the Armed Forces, hire spies, bribe, and blackmail. But the process of their inner decomposition is unavoidable. After a while, speaking metaphorically, all canvases in palaces of the higher-ups turn into the portrait of Dorian Grey…
Something similar is happening today with the Ukrainian post-Communist authorities. Contrary to all official, rhetorical and ideological sediments upon the background of our independence, the image of the acting executive power resembles a false icon, «the old paint» refurbished in dull colors. Looking at the motives and real typology of the authorities behavior, we recollect Yaruselskiy and N. Chaushesku, rather than L. Walensa and V. Havel. As to the victims, the parallels are fairly close too: our G. Gongadze – their Ya. Palakh and Ye. Popelyushko…
No surprise then that our political elite is losing the tone of healthy life. A series of tactical informational failures experienced by the authorities continues their strategic failures with the «Referendum-2000» and «Constitutional Reform-2004.» We will not guess, whether the «authorities united candidate» ends up in failure. The question, whether todays Ukraine will turn into even more living picture of Tolkiens Mordor or Orwells Animal Farm remains open.
In this sense, though, we can recollect one quite clear-cut claim made by V. Medvedchuk in a recent interview: «Yushchenko will not be a president.» Taking into account the well-known further developments, we are curious: what was it in fact – passionate wish, deep insight, or concrete plan?
10 October 2004
Politics and human rights
Open letter on non-transparent and criminal activities of power
Respected subjects of political-constitutional process!
Make an effort and read the «Comment of the Kharkov group for human rights protection on the political reform in Ukraine (by the state on 4 November 2004)», which is adduced below.
This autumn, autumn of 2004, is epoch-making for democratic Ukraine, and therefore, in our opinion, -- for democracy in the entire post-Soviet space. And you still have your head in the faraway clouds of isolated from people, socially, culturally and morally alien to people, degenerated and corrupted power; you invent more and more methods of realization of the reform invented by power.
In the opinion of civil society, all these attempts with regular disregard of the fundamental principle of democracy, the local self-government, are the demonstration of obvious and consistent anti-national plot behind the back of society. Now you want to use the activities of voters for realization of this reform.
Do you have right to trade with votes of citizens, who still believe in your decency? To trade for realization of the constitutional reform, which is advantageous for power, but is absurd from the viewpoint of interests of civil society, the reform, which would accomplish the process of split between the power and society. This split is seen well for a long time, but you still hope, like formerly, for some mysterious military force, for the effect of mendacious promises and insolent misinformation, you hope to secure for yourself the role of almighty leaders. You try to drown in the flows of dirt and demoralization any attempt of public and personal moral self-knowledge, doing your best for restoration of the former atmosphere of fear and hopelessness. At the same time you intimidate Ukraine and the entire world with terrible split into separate regions and loss of Ukrainian independence. All might of the present state mechanism is mobilized just for realization of such split as only possible tool for preservation of your authority, which is just another incarnation of the «historical» absence of liberty. However, the moral mobilization of Ukrainian society was not stopped either by the notorious bygone «five minutes of hatred», or by the so-called «facts», which were thoroughly elaborated by the authors of «temniks» in order to unleash the interethnic, inter-confession, inter-regional and inter-language intolerance, hatred and immorality, or cynical demonstrative support by all TV channels of the fascist-schizoid thugs. Today the Ukrainian society again, like in 1990-91, demonstrate very encouraging signs of convalescence and renovation, obvious and non-ambiguous signs of resurrection of moral unity of the society and its health.
And the fact that, in the first tour of Presidential election, the power has failed in mobilization of all forces for repetition of the scenario of the election in some regions of Western Ukraine in 1946 (when the bulletins were already «correctly filled» and voters had only to put the bulletins to ballot boxes), does not mean that the power will be able to do that on 21 November: the voters have already become aware of exertion of pressure on their consciousness practiced by power and will be ready to repulse the further attempts. And it is already impossible to stop this moral mobilization of the society by any technologies and anniversaries, even in the Lugansk region. Any lie is disgustful, and lie of the power is hundred times more disgustful.
Zinoviy Antoniuk, a publicist, translator, participant of Ukrainian national-democratic and human rights protection movement, former political prisoner
Comment of the Kharkov group for human rights protection on the political reform in Ukraine (by the state on 4 November 2004)
By the state on 4 November 2004, the political reform is represented, in juridical sense, by law draft No. 1480 of 21 June 2004 on introduction of changes into the Constitution of Ukraine in the final version of the Temporary special commission of the Verkhovna Rada of Ukraine for elaboration of law drafts on introduction of changes to the Constitution of Ukraine.
The draft underwent the necessary procedure of consideration in the Constitutional Court of Ukraine and got the corresponding sanction of the Court on its presentation for voting to the Verkhovna Rada of Ukraine.
Law draft No. 4180 essentially differs from law draft No. 4105 in the form, in which it was considered by the Verkhovna Rada of Ukraine and did not get the necessary qualified majority of votes (300). At the same time, law draft No. 4180 also differs now from the draft with the same number, which was considered by the Venetian Commission in December 2003 as «the third law draft».
It is known that, in its conclusion of 12-13 December 2003, the Venetian Commission pointed out: «draft of the law on introduction of changes No. 4180 is identical to draft of the law on introduction of changes No. 4105, except the transitional provisions on appointment of the time of election and coming into force of constitutional reform» (item 88). Now this identity is liquidated.
In the present, renovated, form law draft No. 4180 noticeably differs from its «predecessors» (No. 4105 and the first version of No. 4180), since it envisages the election of the President of Ukraine at nation-wide election. And the draft, which was considered by the Venetian Commission in December 2003, envisaged the election of the President of Ukraine by the Parliament – the Verkhovna Rada of Ukraine.
In general, renovated law draft No. 4180 is much less radical regarding the existing text of the Constitution of Ukraine than the mentioned previous drafts. Yet, even in the new form it, in our opinion, will not promote positive changes in political and constitutional system of the Ukrainian state.
As well as its imperfect «predecessors», the law draft envisages the election of peoples deputies of Ukraine on the purely proportional basis. It establishes, on the highest constitutional level, the same election procedure, which is already envisaged by operating laws. However, we reckon that the election of MPs on the purely proportional basis is evidently precocious and insufficiently weighed, theoretically and practically, attempt to improve the Ukrainian constitutional and, in particular, electoral legislation.
Being a result and an element of the well-known political compromise, the proportional system of election to the Ukrainian Parliament exists, for the present moment, on the level of ordinary law. It should be reasonable to test practically this new for Ukraine system of election to the Verkhovna Rada, and only then, depending on the results of such experiment, to discuss the question about the introduction of this system on the constitutional level. Now it happens that the deputies, excited with political struggle and filled with reformative ideas, try to change the text of the Constitution in favor of the scheme, which did not show itself positively in practice yet. In constitutional sense it looks, to put it mildly, non-optimally.
Law draft No. 1480 also introduces the possibility (and, in fact, the necessity) of unification of a deputys mandate with the status of a member of the Cabinet of Ministers of Ukraine. In our previous comments concerning other reformative ideas of similar kind, we have already said that such order undermine, from practical and formally-juridical viewpoint, the provisions of the operating Constitution of Ukraine: «The state power in Ukraine is realized on the basis of its division into legislative, executive and court branches» (Article 6 of the Constitution of Ukraine).
Evidently, that, giving its permission for the reform, the Constitutional Court again was guided not so much by juridical and legal, as by situation-political purposes and factors. The constitutional norm about the separation of powers must not be a declaration about intentions, but a strict juridical construction protected from changes with special procedure of introduction of changes and amendments into the first section of the Constitution of Ukraine! The modern constitutionalism can demand, to a greater or lesser extent, the separation of powers. Yet, if separation of powers would be declared as a concrete principle (a keystone) of the operating Constitution, then it should not be ignored. The idea of separation of powers exists in the Ukrainian constitutionalism since the times of the Constitution of Pylyp Orlik. This principle was present in the Constitution of the Ukrainian Peoples Republic of 1918 and is an important element of the Ukrainian constitutional tradition. However, law draft No. 1480 evidently ignores the concrete norm – the principle of separation of powers. If the political reform in its present form would be introduced, this would mean that the Constitution of Ukraine would become even more demagogical and formal as to its most important, key provisions. This key principle supplements the already existing social-economic rights of citizens, which are, in fact, fictitious and unprotected with court procedure.
Law draft No. 1480 also increases the term of authorities of the Verkhovna Rada of Ukraine to five years. This norm is not principal, so it obviously cannot be a sufficient argument for breach of constitutional integrity. The draft also establishes radical demands on incompatibility of deputys mandate of an MP with other kinds of activities prohibited by the Constitution. So, non-execution of the demands on incompatibility is turned into the ground for fast and, in our opinion, too radical termination of deputies authorities.
Besides, law draft No. 1480 introduces the rule about deprivation of an MP of deputys mandate «if the MP elected from a political party (electoral bloc of political parties) is not a member of deputies fraction of this party (electoral bloc of political parties) or in the case of retirement (expulsion) of the MP from the composition of such fraction».
Since the law draft does not provide the exhaustive list of the conditions, under which an MP can be expelled from the fraction, this means that the lot of deputies fully depends on the position and will of leaders of the fractions (in fact – the party leaders). It is clear that, under the real circumstances of time and place, this means almost full extermination of originality of political position of peoples deputies, introduces party control over their opinions, words and deeds, de-facto turns each of them into the voting machine. We believe that this idea also embodies absolutely unjustified, primitive, in political and juridical sense, and obscurantist «arithmetism» of parliamentary activities.
People (so, deputies too) are complicated political creatures, it is peculiar to their psychics to disagree, they are guided, in their conclusions and decisions, not only by simple political reckoning, «pluses» and «minuses» on the scales of reality, but also by keen intuition, political subconsciousness, etc. Yet, the modernizers do not want to understand this and to take it into account in the law draft suggested by them. One may even say that, in the part of definition of the principles of party-deputies discipline and fraction orderliness, the law draft is based on a kind of vulgar determination, scholar obedience, subordination to the ideas of collectivism of the worst sort.
However, we want to remind to the reformers that a modern parliament of the European type is regarded as valuable just for its mental variety, ideological polyphony, but not for the political monotheism in the ranks of party pawns.
Really, is it reasonable in our situation to have 450 mentally lively peoples representatives in the parliament? If they must obey the absolute fraction (party) discipline, then there is no real need to gather them in the room for plenary sittings. The party bosses (leaders of fractions) would, according to the results of the proportional election, obtain the proper number of plastic cards for voting and would be able to fulfill this function quite successful. Some party leaders would have more such cards, and some – less; anyway the alive and «pluralistic» deputies would not be needed.
In our opinion, there is one more system drawback in law draft No. 4180: attribution of some ministers of the Cabinet of Ministers of Ukraine (in the sense of their appointment to posts and factual subordination) to the President of Ukraine, and other ministers – to the Verkhovna Rada and the Prime Minister of Ukraine. We have already pointed out that, as a consequence of the new order of appointments and subordination, the foreign and internal policy of Ukraine would be in different hands.
According to law draft No. 1480, the post of the President of Ukraine is not simply representative post, but really influential one regarding concrete executive functions (foreign policy, internal security and defense). So, in practice this would result in noticeable deformation of executive vertical, as well as unproductive competition of top state posts of President and Prime Minister of Ukraine in the framework of one branch of the state power.
If to recollect that the competition of the posts of speaker and President already exists in out country, then the logic of constitutional reformers seems rather incomprehensible.
In other words, the competition of top posts that belong to different branches of power is constitutionally motivated and normal. At the same time, it is impossible to understand and support, either theoretically or practically, the competition of top posts in the framework of one power branch (in our case – the executive one).
Probably, the authors of modernized draft No. 1480 looked for some strategic compromise, but the suggested solution became the compromise of short-term conjuncture tactics. So, the obviously lame, criticized by the Venetian Commission, tactic scheme is again presented on constitutional level. We are sure that this decision and this version of political reform would make Ukraine not a parliamentary republic, but a strange conglomerate, extremely inconsequent in constitutional sense.
The fact that, according to the renovated version of draft No. 1480, the President of Ukraine has the right to disband the Parliament in three cases (every of them may be caused by many reasons) makes illogical the thesis about transformation of Ukraine from presidential republic into parliamentary one. If the authorities of the President concerning the disbandment of Parliament increased three times in comparison with the current state, then what can be said about the «deliberate degradation» of Presidents status with regard to the Parliament?
Although the President directly participates now in forming of the Cabinet of Ministers and appointment of the heads of regional state administrations, in practice the ministers and heads of regional administrations are not less dependent on the Prime Minister too. After giving the «start» to the ministers of the Cabinet and to heads of state administrations, the President actually leaves them under the command of the head of the Cabinet. Naturally, if the Ukrainian governors were elected in the regions, instead of their centralized appointment, this would become an adequate reason for the constitutional reform. Yet, obody says about the election. The main principle of direct dependence of governors on the center is not changed by the reform.
As to the connection between the President and the Verkhovna Rada of Ukraine, law draft No. 4180 not only does not decrease it, but even increases due to the essentially higher level of dependence of the lot of the Parliament on the political position of the President.
Thus, if the reform weakens the influence of the President in the framework of the executive branch of power, then it should be regarded as a change of political tactic. If, at the same time, the Presidents control over the Parliament increases in several times, then it should be regarded as a change of political strategy, the change, which is directed absolutely not towards the parliamentary republic. So, the reform makes Ukraine not less, but, maybe, more presidential.
Other innovations are not principal, in our opinion. They obviously are not worth of transgression of integrity of the constitutional text and may not be estimated positively from this point of view.
As to the concrete circumstances, the political atmosphere of introduction of constitutional innovations in the period between two tours of presidential election, they seem rather absurd. Firstly, on 31 October Ukrainian citizens voted for the President with the existing on that day constitutional authorities. Secondly, the change of constitutional status of the President between two election tours is the jugglery with constitutional principles in the manner of S. Gavrish. In metaphoric sense all this looks as if a man bought a cat at the market, but found a dog in the sack after coming home.
After all, the constitutional reform in Ukraine, in its modern form, is endorsed not by principal political forces (even if to ignore the «mass, but insignificant» (S. Gavrish) misuses at the election: the leader of the races is a tactical opponent of the reform), but the political outsiders – communists and socialists. And this fact should worry us. It is obvious that the moral right to change the Constitution of Ukraine must not accorded to those, whose actions do not agree with the logic of our progress…
 The comment was prepared by V. Rechitskiy, the constitutional expert of the Kharkov group for human rights protection
The right to liberty and security
Militia colonel has found another victim?
Moreover, the militia officers tried to meddle in the course of the meeting threatening with closure of the action «because of its agitational character in favor of one of the candidates to presidency».
We want to remind that these actions were beyond the competence of law-enforcing organs. Militia must be outside politics and fulfill only its direct functions concerning the protection of public order.
Kharkiv militiamen more than once inflicted traumas to the adherents of candidate to Presidents post V. Yushchenko.
On 21 August veteran of the WW2 Vasiliy Sokolov was beaten in the Dzerzinski district of Kharkiv for distribution of oppositional newspapers.
On 4 October, near the building of the Leninskiy district executive committee, the officers of municipal militia beat Konstantin Kanishev, an empowered person of candidate to Presidents post Mikhail Brodskiy.
On 12 October the officers of transport militia (in civilian clothes) beat Yuri Agibalov, who tried to protect the students, who were illegally detained on the square near the central railway station.
On 29 October the officers of the Frunzenskiy district militia station beat Igor Korol, a deputy head of V. Yushchenkos regional headquarters, an assistant of MP V. Filenko.