“Prava Ludiny” (human rights) monthly bulletin, 2004, #12
Appeal of the Sevastopol human rights protecting group about the illegal participation of the officials of Sevastopol town and district state administrations in pre-election agitation Ukrainian power used the Russian one Donetsk makes short work of a tent of «Pora!» Message of informational agency «Ukrainski novyny» Criminal attacks on Yushchenkos supporters in Lugansk Politics and human rights
Court consideration of the administrative offence of «Pora!» activists Law-enforcers will answer for the illegal actions against Volodymir Zakaliuzhny Round table «Human rights in Ukraine: modern state and prospects» was held in the Supreme Council Political reform is a noose on the neck of «orange revolution» Decision of the Supreme Court of Ukraine on the results of the run-off election of the President Constitutional-legal analysis of the Resolution of the Supreme Council «On stabilization of political and social-economic situation in Ukraine and prevention of anti-Constitutional actions endangering sovereignty and territorial integrity of Ukraine» of 1 December 2004 Persons responsible for violations should be replaced Open letter from the Kharkiv human rights protection group to participants of the negotiation process (on political situation in Ukraine as of 07.12.04) Ukraine gets better rating of civic freedoms The right to a fair trial
Institution of criminal case against a member of «Pora!» in Chernigiv was illegal Ukraine fails to execute court decisions. Again. Freedom of expression
Repressions in Lugansk continue
Appeal of the Sevastopol human rights protecting group about the illegal participation of the officials of Sevastopol town and district state administrations in pre-election agitation
Lessons were cancelled in the secondary schools situated in the downtown, the pupils of junior school were sent home, and the pupils of senior school were provided with Yanukovichs symbolics and directed to the meeting.
The Sevastopol human rights protecting group turns the attention of the Central election commission, as well as the above-mentioned officials of the city and district state administrations, to the fact that such actions are deliberate and brutal violations of item 2 part 1 of Article 64 of the Law of Ukraine «On election of the President of Ukraine», which prohibits to the organs of state power, organs of local self-government and their officials to take part in pre-election agitation.
We appeal to the heads of local administrations to stop the pressure on voters and the illegal participation in agitation in favor of candidate Viktor Yanukovich.
We ask the Central election commission to give the assessment of involvement by V. Yanukovich of the organs of state power of Sevastopol in pre-election agitation for his benefit.
Sevastopol human rights protecting group
Ukrainian power used the Russian one
Well-known Russian human rights protection activist Ludmila Alekseeva assessed very negatively the demonstrative meddling of Russia into the election process in Ukraine, both on the side of Russian political technologists and on the side of President of Russia Vladimir Putin. Ms. Alekseeva expressed this opinion on 26 December at a press conference devoted to the assessment of the election campaign by Ukrainian and international human rights protecting organizations. She also added that she was pleased with the fact that «participation in the election of the President of Ukraine was a very important work for Gleb Pavlovskiy, which work he failed fulfill because of the Ukrainian people».
Ludmila Alekseeva told about elucidation of the election campaign by Russian mass media, in which «Mr. Yanukovich, who had not been known before, started to appear, either at Presidents birthday, or in the connection with other events», and that «in one of his speeches on TV Gleb Pavlovskiy rather openly called Viktor Yushchenko a fascist and a Nazi». Evhen Zakharov, a co-chairman of the Kharkiv group for human rights protection, added that, when somebody asked him, who had «made» this election and who had invented this division into West and East, he answered that «these were Ukrainians, who invented how to use Russians in order to keep the power».
In conclusion L. Alekseeva said: «This revolution will be a very good lesson for the Russian power. This does not mean that they will understand all and will not use such methods in future. No, they will do the same, even more. Yet, it is good that soon it will become impossible to deceive the people in such manner».
At the same time master of «black PR» Gleb Pavlovskiy acknowledged in his interview to «Gazeta.ru»: «Russia must seriously reconsider its doctrine concerning the foreign policy, in particular regarding the CIS countries». He pointed out that «Ukraine will become an important example in the new politics, since we have already started to build special multipolar relations with Ukrainian parties, regions and cultural communities». He also said that «now it is time to clear up what values we uphold». Is not it too late? Mr. Pavlovskiy believes that his guilt consist in underestimation of this very component – the uncertainty about the values important for Ukrainians.
28 December 2004
Donetsk makes short work of a tent of «Pora!»
On 10 December four activists of the public action «Pora!» erected their tent in the Donetsk downtown, near the monument to John Hughes. This was done in the framework of the action «To Donetsk with love».
Small tent camp existed for less than an hour. About 100 young people of criminal appearance ruined the camp. They did not touch the activists of «Pora!», but brutally beat journalist of the local newspaper «Salon Dona i Basa» Sergiy Vaganov, who made a video record of these events. The camera was broken.
According to the information communicated by activist of «Pora!» Ostap Kryvdyk, an unknown person, probably an officer of the Voroshilovskiy district militia station of Donetsk, threatened him in presence of other activists and a correspondent of the newspaper «Salon»: «You will not speak this Bandera language here, in Donetsk. If you would say one word more, I would lead you to the room and…» The activist and the correspondent of «Salon» at once wrote the corresponding complaint and handed it to militia.
The Donetsk city council recalled its claim, which had been handed against the public initiative «Pora!» in the connection with the illegal, in opinion of local authorities, erection of an agitation tent in the city.
The court sitting has had to be conducted this morning, but, by words of journalists, who came to the trial, it was not held.
The city council motivates this step by the fact that today the tent is absent, so there is no subject for consideration.
Earlier Maksim Rovenskiy, the head of the PR department of the city executive committee, stated that the city council had taken the decision on the prohibition of living in tents on the territory of the city.
Message of informational agency «Ukrainski novyny»
The Lugansk regional department of the Ministry of Interior denies the fact of beating of the adherents of V. Yushchenkos bloc «Our Ukraine» by strangers at a meeting. This information was obtained from the press service of the regional militia department.
The press service communicated that on 29 November at 13:15 a meeting in support of V. Yanukovich was held near T. Shevchenkos monument; about 300 students with the white-blue symbolics took part in this action. The participants of the action scanned slogans and sang songs in support of their candidate.
The press service affirms that about 13:30 about 15 persons from the group of people with orange symbolics, armed with baseball bats and metal rods, attacked Yanukovichs supporters and started to beat them. «All this lasted for about two minutes. After that the attackers ran away», reads the message of the press service.
The militia also has doubts as to the attack of 30 unknown bandits in leather jackets, armed with hammers, on Yushchenkos adherents, as the result of which several tens of people suffered. «As to the scores of suffered journalists, including correspondent of the newspaper «Luganchane», volunteers, coordinators of the OSCE project and others, who allegedly got injuries, nobody of them turned to militia», reads the statement of the press service.
The press service informs that the law-enforcers suffered, who protected citizens; one of the militia officers was hospitalized. The militia started the criminal case after part 2 of Article 296 of the Criminal Code (hooliganism).
At the same time, an eyewitnesses testify, that the militiamen, which were present at the place of incident, did not try to stop the beating of Yushchenkos supporters. According to the information communicated by the agency, the group of 30 bandits attacked, at this meeting, the column of Yushchenkos supporters consisting of 70 persons and started to beat them. At that a journalist of the informational agency «Ukrainski novyny», a correspondent of the newspaper «Luganschane» and the coordinator of the OSCE projects in the Lugansk region were brutally beaten. Silve Rossel, a volunteer of John Govards society (Canada) got a serious cerebral-brain trauma and even had to undergo a surgical operation.
The bandits encircled Yushchenkos adherents and started to beat them, taking away the cell phones, video cameras and other equipment. Only the victims, who had been already deprived of the equipment, were allowed to leave the column.
The attackers kicked the journalists, beat them on heads with hammers and other heavy things. By the words of witnesses, several scores of persons got traumas. Besides, two workers of Yushchenkos headquarters in the Lugansk region were beaten, in particular, Evhen Savchenkos nose was broken.
Criminal attacks on Yushchenkos supporters in Lugansk
On 28 November, during the planned and agreed with the authorities peaceful protest meeting in support of Yushchenko, which was held on the central square of Lugansk, two participants of the action were beaten by some criminals.
One of the victims got a serious head trauma as a result of a strike with a metal object, an eye of another one was injured.
On 29 November, at 13:00, a group of 25 activists of public movement and party organizations, taking into account the provocation that had occurred the day before and in order to prevent the conflicts, decided to warn the Lugansk dwellers about canceling of the meeting in support of the democratic election and against falsifications. At the same time about 400 excited young people – adherents of V. Yanukovich, who gathered near the headquarters of the Party of Regions, started to approach the activists of the democratic public movement.
About 13:10, when we began to disperse, about 40 persons of criminal appearance from the crowd of Yanukovichs supporters, armed with hammers and bats, rushed into the group of the public activists and brutally beat them. The attackers were beating women, children and accidental witnesses. They kicked their victims, beat them with hammers and bats, jumped on them like on trampoline…
Militiamen were standing aside and did not interfere, neglecting their service duties, as they say, by order of their commanders. As a result, about 10 persons got serious bodily injuries. The permanent head trauma was inflicted on representative of the OSCE Mr. Motsniy. A video camera was stolen and a cell phone was broken.
The Lugansk dwellers, who saw that, were shocked. Horror was in their eyes, they understood the bitter truth. An elderly woman cried: «Well, we have elected a good President!», meaning the candidate, who had been proclaimed by the CEC to be the winner of the election.
On 29 November, in the evening news on the channel LKT, the participants of the feature (one of them was politologist Bodrov, a coordinator-organizer of the provocative actions of adherents of the pro-power candidate) openly lied, trying to blame the representatives of democratic forces for the aggressive actions. Allegedly they had beaten the blue-whites, or even nothing criminal happened at all. And if something happened, it was something like a competition between two sport teams.
It seems that these commentators followed the Goebbels logic: «The more you are lying, the more they would believe you», thus continuing to distort the real events of last weeks. This has been another criminal step of the pro-power team, which started the pre-election campaign from zombing of public consciousness with fascist-Bandera horrors, helped to falsify the election results and continued to lie even in the case, where blood of innocent people, who expressed their political convictions, has been shed.
From «PL» editorial board: In what follows we quote evidences of the participants of this meeting in Lugansk.
On 29 November in Lugansk two meetings in support of two candidates to Presidents post – Viktor Yanukovich and Viktor Yushchenko had to be held at the same time (at 13:00) and at the same place (near the monument to T. Shevchenko, not far from the Lugansk regional state administration).
Being a journalist of the informational agency «Ukrainski novyny, I work in Lugansk for more than 18 months and attend such actions very frequently. On 29 November, before going to the meeting, I decided to ascertain whether the meetings would be held. Only one appeal was handed to the Leninskiy district executive committee about the conduction of a meeting on this day – from the Socialist party of Ukraine that supported candidate from opposition V. Yushchenko.
I came to the square in time, at 13:00, and saw about 60 supporters of Yushchenko with the orange symbolics. They did not start the meeting yet, explaining that they were going to go away, since they had got the warning about probable provocations. At the same time a column of Yanukovichs adherents (about 300 persons) with blue ribbons moved from the building of the regional state administration. They quickly approached to Yushchenkos supporters. At once a group of young men in black leather jackets and black knitted caps appeared from the column. From this moment the events started to develop very swiftly. The men attacked a boy with the orange symbolics. I automatically extracted the cell phone, but had no time to phone anywhere. One of the attackers pounced on me and took away my phone, scratching my fingers. I saw how another man trampled the phone hatefully. Somebody grabbed me by hair from behind and threw me on the ground. When I rose, I saw that one of my friends was lying on the asphalt, and four youths kicked him. All this lasted for about 7-10 minutes. Other «strangers» beat the boys and men with the orange symbolics. Here I want to point out that the incident took place near the entrance to the building of the regional administration in presence of 35-40 militia officers. By the way, the militiamen paid to attention to the bandits.
When I saw the beating of my friend, I turned to a militiaman, who stood in a meter from the place of fight, seized his sleeve and asked at least to drag my friend aside from the attackers. The militiaman turned away. The boy got free on his own, and we ran away. Some woman offered her phone for calling a motor ambulance. I took the phone and managed only to dial the number of my agency, when the attackers ran up to me crying: «Catch her! She has a phone again!». I was thrown on the ground, the phone fall down in a snowdrift, but continued to function, so the workers of agency could hear everything that happened later.
I got several kicks in my back, then I grasped the phone and ran away.
We took a taxi and went to a hospital.
Two days later I handed a complaint to the town militia department, but I doubt that something will change. Now I observe only retardation of the case, and if to take into account the reaction of militia on 29 November… It is beyond belief, but in evening of 29 November the militia did its best to refute, through mass media, the information about the attack.
I personally know more than 20 victims of the incident, who have handed the complaints to militia.
On 29 November 2004 I, together with my friend, Hanna Nizkodubova and Yuri Motsniy, went to the meeting in support of candidate to presidency Viktor Yushchenko. This meeting had to be conducted near T. Shevchenkos monument. When we passed by the building of the regional state administration, we saw a great column of young men, who carried the white-blue flags and cried out slogans in support of their candidate. On the square we saw 10-15 persons with orange ribbons. We approached these people, and they said that the meeting would not be held and then gave us visiting cards with an address and phone number, by which additional information could be obtained. After that we turned to the shop «Kurazh» and saw how some men started to beat a man with orange ribbon. Yuri Motsniy took his video camera and wanted to record this incident, but the attackers immediately stopped him and began to beat. Several seconds later Hanna Nizkodubova also got into the fight, since she took out a cell phone. A great crowd gathered, where not only Yushchenkos supporters were beaten, but also accidental passers-by. These people were beaten not only with feet, but also with iron rods and baseball bats. I and my friend moved aside, to the road, and when I turned to the square I saw that some youth pulled Hanna by hair and threw her on the ground. Then I saw Yu. Motsniy with the face covered with blood; a video camera was in his hands.
These people were beating very professionally, so almost all victims fell down and were bleeding after several blows. I and my friend at once took off our orange scarfs and crossed the road quickly. When we turned back we did not see a single person with the orange symbolics on the square.
Every day, at 1 p.m., meetings in support of Viktor Yushchenko were held in Lugansk near the monument to Taras Shevchenko. On 29 November I and several my friends decided to take part in one of such meetings. The way to the square runs near the regional state administration. Groups of militiamen stood near the entrance to the building and along the perimeter of the square. As soon as we came to the monument, a column with the white-blue symbolics advanced from the building of the Party of Regions. About 20-30 persons in black leather jackets parted from the column and directed their steps towards the adherents of Yushchenko (their number was about 30-40 persons). I saw how the attackers stroke in the face a student of the pedagogical institute, and, behind us, another man was knocked down and brutally kicked. People with video and photo cameras ran to him. The attackers knocked them down too, beat them with feet, broke cameras and cell phones. They pulled away some girl by hair continuing to beat her. A passing woman tried to protect a bleeding man, but the criminals drew her off and hit with some object in a cover. The cover opened and I saw 5-6 iron rods about 1.5 meters long. We hided the orange symbolics and crossed the road.
I want to add that militiamen observed all this, but did nothing, only turned away.
On 29 November, at 1 p.m., the central square of Lugansk was decorated with orange flags: people gathered there with the aim to support V. Yushchenko and those, who opposed the brutal actions of representatives of the power. As early as on 26 November it was rumored that, probably, the provocations would be organized by «sympathizers» of Yanukovichs team. However, up to Monday (excluding Sunday, when one person had been beaten by Yanukovichs supporters) the situation was more or less quiet, without any unpleasant excesses. The very first day of the new week startled with its unpleasantness: the demonstration of Viktor Yushchenkos adherents was brutally beaten and dispersed. Nobody could predict that.
On Monday 29 November, about 1 p.m. I decided to go to the meeting in support of V. Yushchenko for the third time. When I came to the central square of the town, I was surprised with great quantity of Yanukovichs supporters, who gathered near the building of the regional state administration. This crowd attracted attention with noise and the excessive activity of some people, who were obviously drunk. O. Velykiy, one of the organizers of the action, proposed not to conduct the demonstration in support of Yushchenko on this day in order to prevent incidents. Yet, we had no time to go away, because we were attacked by some robust men. They began to beat, without any reasons, a boy with the orange symbolics. A reporter, who stood near, tried to make a video record of this beating, but he was attacked too. The video camera was broken, and the journalist was beaten. In what followed, some elements of this camera were used for beating of other participants of the action. I was lucky to run across the street. It was awful to feel my helplessness, especially when I saw how they were beating my acquaintances, friends and other people.
Peaceful citizens, who passed by the square at that time, passengers of public transport and drivers were, I believe, shocked with these events. The actions of the unknown physically strong persons were extremely brutal: they cruelly beat the men and even women, who had come to express their position, and pursued the victims, when they tried to run away. It was most terrifying that the law-enforcers, who stayed near this place, did not react to the calls of the victims for help. They resembled the referees at a boxing match. They merely observed the situation.
In reality everything happened very quickly: everything lasted for about 10-15 minutes. Yet, it seemed to the personages of the event that it was a bad dream that would never end…
I do not want to blame anybody, since there is no reliable information either about the organizers of the mass beating or about the executors. The adherents of Yanukovich accuse the people from Yushchenkos headquarters, and the later insist on absurdity of these accusations.
I even read in the newspaper «Fakty» that «the oranges» had beaten the supporters of Yanukovich. Well, for some reasons, I am not very surprised with this insolent lie, because we hear the lie of such kind almost every day.
It is difficult to find the guilty and punish them in the country, where absolutely incomprehensible things occur regularly.
Politics and human rights
Court consideration of the administrative offence of «Pora!» activists
Such situation occurred, for instance, in Kharkiv, where on 17 November six activists of «Pora!» were detained: five Kiev and one Kharkiv dwellers. They spent the night in the Dzerzhinskiy district militia station, and on the next day the court considered the protocol on administrative violation according to Article 185 part 2 of the Code on Administrative offences. The young men were defended by advocate Volodymir Zinchenko, invited by the Kharkiv group for human rights protection in the framework of rendering of legal aid to the victims of violations of human rights. V. Zinchenko lodged the petition, in which he demanded to summon the officers of law-enforcing organs in connection with their illegal actions: the advocate insisted that there had been no grounds for the detainment. On the same day the activists of «Pora!» were released, and consideration of the case was postponed.
Two more court sittings were held, and on 7 December the final decision was issued: the «Pora!» activists were released from the administrative responsibility, the court pronounced only oral reproof.
Law-enforcers will answer for the illegal actions against Volodymir Zakaliuzhny
The rights of the «Pora!» activist were defended by A. Yudkovska, an advocate of the Pecherskiy collegium of advocates of Kyiv.
We want to remind that Volodymir Zakaliuzhny was detained on 23 November in Kyiv in course of distribution of leaflets criticizing the activities of Viktor Yanukovich. He was transported to the Shevchenkivskiy district militia station of Kyiv, where he was accused of stealing of a cell phone.
The criminal case was instituted on the basis of the claim of citizen Nina Galena. She complained that, on 23 November about 7 p.m., during the concert in support of candidate to presidency V. Yanukovich on Evropeyska Square, she allegedly disclosed that a stranger openly stole her cell phone connected to the cell operator «Jeans». Besides, she accused Zakaliuzhny of stealing of her money, which were find later in a pocket of her trousers.
According to testimonies of deputies Pavlenko, Khmara and Orobets, who were present at the place of incident, at the very moment, when the women complained about the theft of her phone, it, for some reason, ringed in her pocket. Yet, the woman explained that she had one more phone (the stolen one), but she did not remember its number, since she used it as a pager.
The documents of the investigation department read that, during giving evidences, the woman was obviously nervous, which raised doubts in honesty of her words.
However, in spite of this, the militia officers transported V. Zakaliuzhny to the Shevchenkivskiy district militia station. He was accused of stealing of a cell phone, for which he could be condemned to two years of incarceration.
In the course of pre-investigation inquiry it was established that the claimant gave a false name, to say nothing about the contradictions in her complaint. The cell phone, which was the object for institution of the criminal case, was not found at all. During the inquiry Volodymir Zakaliuzhny categorically denied that he had committed this theft, and his words were confirmed by the witnesses. It is strange, but there were no witnesses at all, who pointed at Zakaliuzhny as at the person that had committed the considered crime.
Taking into account the fact that all possible investigation and operative-detective activities had been realized, the investigation came to the conclusion that the very fact of crime was absent, so the case had to be closed.
It is noteworthy that closure of a criminal case because of the absence of criminal event happens very rarely in practices of law-enforcing organs. By the data made public in «Visnyk Verkhovnogo Sudu Ukrainy» [«Herald of the Supreme Court of Ukraine»] (No. 8 (48)), in 2003 the number of cases closed by courts because of the absence of criminal event or corpus delicti was 138 (out of 28400), that is less than 0.5%.
It is known that closure of a criminal case because of the absence of criminal event frequently means that the actions of law-enforcers were illegal and violated the rights of the person, against which the criminal case was instituted.
This time the advocate of the Foundation for legal aid to the victims of violations of human rights of the Ukrainian Helsinki union of human rights will appeal against the actions of law-enforcers and demand the compensation of damage inflicted to Volodymir Zakaliuzhny. We hope that all persons guilty of the illegal detention of member of public organization «Pora!» V. Zakaliuzhny will be brought to responsibility, and that in future law-enforcers will avoid the regrettable mistakes, which can break somebodys life.
Besides, taking into account groundlessness of the accusation against the activist of the public campaign, this case should be considered as one more example of persecution by law-enforcing organs for expression of political views.
Olena Goliuk, RUPOR
Round table «Human rights in Ukraine: modern state and prospects» was held in the Supreme Council
On 10 December 2004 the world community celebrated the International day of human rights. This is the day of adoption by the UNO General Assembly of the Universal Declaration of human rights. This act initiated the process of the development of international system of human rights protection, that is the observance of human rights and freedoms exceeded the bounds of jurisdiction of one state and became the problem of the entire world community.
On this day the Committee in charge of human rights, national minorities and interethnic relations of the Supreme Council of Ukraine traditionally conducted the sitting of the round table «Human rights in Ukraine: modern state and prospects». MPs of Ukraine, ombudsperson, heads of ministries and departments, in particular, the force structures, as well as representatives of non-governmental human rights protecting organizations, took part in the round table. Head of the Committee G. Udovenko delivered a report, 17 persons took part in the discussion of this report.
The participants of the round table established that, during the years of independence, the proper legislative base for the protection of human rights had been created in Ukraine. The high standards of the Universal Declaration are reflected in the Ukrainian Constitution in full measure. The Supreme Council of Ukraine consistently works at legislative provision of the Constitutional norms. In particular, the Laws «On citizenship of Ukraine», «On national minorities in Ukraine», «On immigration», «On refugees», «On legal status of foreigners and apatrides», «On appeals of citizens» were adopted, as well as the Laws that envisaged the mechanism of realization of the right to free election of power organs, freedom of association into political parties and public organizations, freedom of movement, etc. Now the Ukrainian legislation in this sphere meets the best world standards.
However, it was also said at the sitting that the tendencies to violation of fundamental constitutional rights were observed in Ukraine, in particular, the right to peaceful assemblies and demonstrations, the right for free access to information and the freedom of expression. The cases occur of persecution and discrimination of people because of their political views. This became especially obvious during the Presidential election-2004. In particular, the observers and representatives of mass media were removed from election stations, people were intimidated, kidnapped, beaten, illegally detained. The access of MPs was blocked. Dictaphones, cassettes, materials were taken away from public activists and journalists, their video and photo cameras were broken and the films and tapes with the records of violations were destroyed. Students were expelled from institutes.
Taking into account the fact that the celebration of the International Day of human rights was ignored not only by Presidents administration, governmental structures and the judicial power branch, but also by central mass media, the editorial board of «Prava ludyny» decided to publish «The resolution of the Committee in charge of human rights, national minorities and interethnic relations of the Supreme Council of Ukraine adopted as a result of the round table «Human rights in Ukraine: modern state and prospects» devoted to the International Day of human rights».
«The participants of the round table «Human rights in Ukraine: modern state and prospects» declare that, in the present social-political situation, the celebration of the International Day of human rights in Ukraine gains the qualitatively new meaning. For the first time it was corroborated and marked with the active struggle of citizens for their constitutional rights.
The deep anxiety was expressed about the mass violations of human rights, committed during the first and second tours of the election of the President of Ukraine of 2004. The election campaign became a serious test for democracy and respect for human rights. It is obvious that the top executive power did not provide the realization of the corresponding norms of the Constitution and Ukrainian Laws, and ignored the election rights of citizens.
The Ukrainian people expressed its protest against the wide-scale falsification of the Presidential election and the long-lasting neglect of human rights. The people started to strive for their constitutional freedoms.
The protest actions in Kyiv, other cities and towns of our country came to the culmination. The people have demanded and are demanding to respect their opinion, to reckon with them.
In this important moment we cannot remain aloof from the events that happen now in Ukraine, and we add out voice to those, who demand the fair and legal solution of the conflict situation that has formed in our society.
The Supreme Council of Ukraine and its leaders took the active realistic position in the negotiation process during special parliamentary sessions, round tables, meetings with representatives of local state administrations and organs of local self-government. The constructive approach of the Supreme Council, which has assumed the role of coordinator of search of the way out of the crisis situation, deserves the best appreciation.
The Supreme Council Committee in charge of human rights, national minorities and interethnic relations does not stand aside from the epoch-making events and processes that occur in Ukraine. In these hard times the Committee has presented two appeals on legislative regulation of the crisis.
The resolutions of the Supreme Court of Ukraine of 3 December 2004 and the Supreme Council of Ukraine of 8 December 2004 on the run-off election of the President of Ukraine were very important, they essentially changed the internal policy in Ukraine.
The participants of the sitting of the round table positively assessed the mediation activities of foreign participants of multilateral negotiation process for regulation of the political crisis in Ukraine, in particular, Javier Solana, the Supreme representative of the EU in charge of questions of foreign policy and security policy, and the OSCE General secretary Jan Kubisz.
Taking into account that the presidential election campaign has been resumed again, the participants of the round table turn to peoples deputies of Ukraine and to everybody, who care for the future of Ukraine, with the appeal to do everything in their power for guaranteeing of the constitutional right of Ukrainian citizens for free expression of will at the presidential election. These activities should be grounded on the concept that the Basic Law of our country declares that Ukrainian people is the bearer of sovereignty and the only source of power in Ukraine.
The hope was expressed that the newly-elected Central election commission would not allow any falsification of the election and violation of corresponding laws.
The participants of the sitting of the round table «Human rights in Ukraine: modern state and prospects», devoted to the International day of human rights, reckon that it is advisable to do the following:
І. The Supreme Council of Ukraine:
During the session of the fourth convocation to introduce into the national legislation of Ukraine the responsibility for the actions of separatism character, which can cause social, interregional and interethnic conflicts.
To elaborate the Informational code of Ukraine with the purpose of complex normative-legal provision of the constitutional rights and freedoms of citizens in the sphere of information.
II. The Cabinet of Ministers, ministries and departments of Ukraine:
To take the appropriate measures for overcoming of the present political crisis, caused by systematic ignoring of human rights, in particular, the election rights of Ukrainian citizens. At that special attention should be paid to the prevention of any violent actions, including the actions against representatives of mass media.
To organize regular monitoring of the decisions of corresponding international organizations, in particular, the European Court, on the claims connected with problems of human rights, which can concern Ukraine; to pass the results of the monitoring to the Supreme Council committee in charge of human rights, national minorities and interethnic relations.
The Ministry of foreign affairs of Ukraine should provide the operative reaction to the facts of the external interference into the internal affairs of the state, regardless of the source of this interference.
III. To local organs of executive power and organs of local self-government:
To organize the wide-scale elucidation of the resolutions of the Supreme Court of Ukraine of 3 December 2004 and the Supreme Council of Ukraine of 8 December 2004, as well as their significance for the prospects of democratic development of Ukraine.
To intensify education of population concerning the legal knowledge in the sphere of human rights protection for further consolidation of Ukraine as a jural and democratic state.
IV. To the Supreme Council committee in charge of human rights, national minorities and interethnic relations:
1. To guarantee the systematic control over realization of human rights and their violations, in particular, in the sphere of free expression of will in the course of election campaigns of all levels.
2. The priority tasks:
adoption by the Supreme Council of Ukraine of the Law of Ukraine «On peaceful assemblies» and improvement of legislation in this sphere;
consideration of the question on introduction of changes and amendments into the Law of Ukraine «On associations of citizens» in the part of widening of the rights of citizens and public organizations;
promotion of the process of adoption, in the second reading, by the Supreme Council of Ukraine of the drafts of the Criminal-Procedural Code of Ukraine (No. 3456-1) and the Law of Ukraine «On the status of investigating officers in Ukraine» (No. 4125), as well as the Law of Ukraine «On introduction of changes and amendments into the Law of Ukraine «On advocacy» (with the aim of real guaranteeing by the state of the right for free legal aid to the insolvent accused), which would result in more efficient protection of rights and legitimate interests of citizens and the state, guaranteeing of law and order, effective struggle with crime, observance of general norms concerning human rights in criminal proceeding, prevention of infringement of rights of the suspected, accused and defendants, rendering of proper legal aid to them.
3. To consider the course of the fulfillment of this resolution at the enlarged session in April 2005.»
Political reform is a noose on the neck of «orange revolution»
If to base on the commentaries of Martyniuk, Moroz and Litvin, the impression appears that the reason of this conflict is the «inconsequent» position of Yushchenko and «Our Ukraine», since allegedly this very side broke the agreement.
Let us carry out the analysis of situation in Ukraine and try to formulate the top-priority steps that should be taken for liquidation of the current crisis:
1. Serious political crisis is observed in Ukraine, caused by Kuchma-Yanukovichs regime, which made its best for turning the election of the President into the mockery of the society. Mass falsifications of the election are confirmed now with two documents: Decree of the Supreme Council of Ukraine of 27 November 2004 and Resolution of the Supreme Court of 3 December 2004.
2. The Decree of the Supreme Council of Ukraine of 27 November 2004 expresses distrust to the Central election commission and recommends the President of Ukraine to present, up to 1 December 2004, the propositions on new composition of the CEC.
3. The decree of the Supreme Council of 1 December 2004 expresses distrust to the Cabinet of Ministers of Ukraine, which implies resignation of the cabinet. According to the Constitution, the resolution of the Supreme Council of Ukraine is an act of direct action and does not demand Presidents approval.
Basing on these acts, we have the situation, when, de jure, there are no acting government and legitimate CEC in Ukraine (since the organ, which appoints the CEC members expressed distrust to it).
Yet, what happens de-facto? The government continues to function, since the Prime Minister does not acknowledge the decision of the Parliament, and the President pretends that the resolution on distrust does not exist at all, so he does not issue the edict about forming of new government and does not take any steps for presentation of the propositions about new Prime Minister. So, we observe the criminal ignoring by the President of decisions of the Parliament.
Kushnariov made public the idea to debar Yushchenko and Yanukovich from participation in the repeated voting (if this would happen, then on 26 December the ballot papers would contain names of Moroz and Simonenko!!!)
Thus, what top-priority steps should be suggested in such situation?
To acknowledge that the voting of 26 December must be conducted necessarily, and they must be maximally honest.
The election can be honest only if it would be conducted by new composition of the CEC, new territorial and district commissions and in compliance with new legal demands.
So, the necessary changes must be urgently introduced into the law on presidential election.
Yet, even the best law would not work, if the people, which brutally ignored the laws and realized falsifications, would be left on their posts.
Replacement of the heads of regional state administration is impossible without the replacement of government.
Besides, it is necessary to stop the development of the economic crisis, but it is also impossible without the replacement of government.
This seems to be an axiom: at first we must replace the government and then do the rest. However, strange events take place in the Parliament. The so-called «package» is formed, which will allegedly solve all mentioned problems at once: law draft No. 4180 on introduction of changes into the Constitution and the new law on peculiarities of conduction of the repeated voting at the presidential election on 26 December 2004. «Our Ukraine», Yu. Timoshenkos bloc, some members of the Agrarian party and the Center refused to support this package, which was the reason of the brusque statement of Moroz and created the semblance of inconsequent politics of «Our Ukraine». But it is not true! On the contrary, if «Our Ukraine» conceded this position, it would, in fact, repudiate all small victories, which had been won, such as resignation of the government and juridical removal of V. Yanukovich from Prime Ministers post.
The TV viewers, who watched the reportage from the Supreme Council of Ukraine, could not understand, why the mentioned Morozs «package» would solve the problems of resignation of the present government. On the contrary, according to this draft, the present government has to fulfill its work even after inauguration of new President, and what is more, from the moment of election of new President with the restricted authorities, the authorities of the present government, and especially the Prime Minister, will unbelievably increase.
Here the question appears: who betrayed whom? The agreements between Yushchenko and Moroz were not so categorical. They discussed introduction of this political reform for new Parliament, which would be elected only in 2006.
Now, understanding the interest of Yushchenko and his team in establishment of stricter democratic control over the election procedures, the power decided to press on Yushchenko with Morozs political reform. Something like: we will give you the improved law on election, and you will give us the political reform, or, what is simpler, the old order with new government! Such position of the power and its stooges can be understood: they deposited many resources for giving the top post to their candidate. Yet, they failed.
It is obvious that Yushchenko will become the President. So, the only way out is to neutralize him with his own hands. Realizing the essence of the agreements between Yushchenko and Moroz on support of the political reform, the pro-power politics played on Morozs «paternal» feeling to the political reform and persuaded him that the reform should be introduced as soon as possible. It seems that Moroz has forgotten about the priorities for the sake of his brainchild: that it is necessary at first to remove the criminal power, which has always ignored the Constitution and Ukrainian Laws, and only then it will be reasonable to create the new rules of play for new power, which would replace the present one. He and his team either do not see, or do not want to see the simple thing: the criminal power will obey no Constitution and no laws. And the neglect by Kuchma and Yanukovich of the Supreme Council resolution on distrust to the government vividly confirms that.
Well, what should be done next?
To go to the election under the condition of the unpunished activities of present regime, with old composition of commissions, with the off-list tickets, with hacked servers and bandits at election stations? If V. Yanukovich would win in this situation, then our «unbiased» Constitutional Court would be able to acknowledge as illegitimate the introduction of changes into the Constitution through the package. Is not it too high price for the political reform, Mr. Moroz?
It is a pity that Oleksandr Moroz does not want to see this simple truth. First, we should be afraid not of «coming» Yushchenko, but of the present regime. Secondly, it is desirable to recollect, at least sometimes, about the millions of our citizens, who are freezing on the squares for two weeks not for the political reform, but for truth and against the present regime.
However, I reckon that the situation is not hopeless all the same. Ukraine has changed after 21 November 2004. I am sure that on 26 December Yushchenko will be elected even without Morozs assistance. And where the place of socialists and their leader will be then?
People know a simple formula: appointment of new government – new composition of the CEC – specified law on election – replacement of heads of regional state administrations – honest election campaign – honest election – new President – establishment of order in the state – real political reform of all power system in Kyiv and regions – parliamentary election of 2006. All this should be done for the sake of people, this is a truth, and for the sake of this truth people do not want to leave squares.
History will show who betrayed whom on 4 December in the Supreme Council. The main task today is not to betray people, which have relied on Yushchenko and see in his person the guarantee of forming of honest power. The temporary disagreement with Moroz means nothing in comparison with the loss of peoples belief in victory. This political reform, which is not able to solve the problems of Ukrainian society, is expedited just for causing of dissention and for stultifying of the victory of people over the cynical regime. The immoral and criminal power will use the model of power «from Moroz» in its own interests, but not in interests of the people. The question is not so much in laws as in their observance.
4 December 2004
Decision of the Supreme Court of Ukraine on the results of the run-off election of the President
IN THE NAME OF UKRAINE
3 December 2004 Kyiv
The Court chamber in charge of civil cases of the Supreme Court of Ukraine consisting of
Chairman: A. Yarema
Judges: M. Baliuk,
secretaries: I. Prokopenko and V. Skachko;
with participation of M. Katerynchuk, an empowered person of candidate to Presidents post V. Yushchenko in the unified all-Ukrainian election circuit, and representatives of candidate to Presidents post V. Yushchenko: S. Kustova, R. Zvarych, O. Reznikov, M. Poludionny, S. Vlasenko, Yu. Karmazin and Yu. Kliuchkovskiy;
representatives of the Central Election Commission: V. Bondyk, Yu. Donchenko, I. Kachur, M. Okhendovskiy; representatives of the interested person -- candidate to Presidents post V. Yanukovich: O. Lukash, S. Gavrish, B. Kharchenko, E. Evgrafova and Abramenko,
considered at the court sitting the case after the complaint of Mykola Katerynchuk, an empowered person of candidate to Presidents post V. Yushchenko in the unified all-Ukrainian election circuit, against the passivity of the Central Election Commission, the actions for establishment of the results of the run-off election of the President of Ukraine of 21 November 2004 and the decision about proclamation of Viktor Yanukovich to be the elected President of Ukraine, and
ascertained: M. Katerynchuk, an empowered person of candidate to Presidents post V. Yushchenko in the unified all-Ukrainian election circuit, turned to the Supreme Court of Ukraine with the mentioned complaint, in which he asked: 1. To recognize the actions of the Central Election Commission for establishment of the results of the run-off election of the President of Ukraine of 21 November 2004 as invalid. To nullify Resolution of the Central Election Commission of 24 November 2004 No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine» as illegal one. 2. To reverse Resolution of the Central Election Commission of 24 November 2004 No. 1265 «On publication of the results of election of the President of Ukraine» as illegal one. 3. To recognize that the facts of systematic and brutal violations of the principles and foundations of election process during the run-off election of the President of Ukraine of 21 November 2004 made impossible the reliable establishment of the results of expression of the will of voters in the unified all-Ukrainian election circuit. 4. To recognize as invalid the results of the run-off election of the President of Ukraine of 21 November 2004 in the unified all-Ukrainian election circuit. 5. To acknowledge the candidate, who, according to the results of voting of 31 October 2004, got the majority of votes, to be the elected President of Ukraine. The stated demands, which were confirmed at the court sitting by the claimant and representatives of candidate to the post of the President of Ukraine V. Yushchenko, are grounded on references to systematic and brutal violations of the principles and foundations of election process during the run-off election of the President of Ukraine of 21 November 2004 and on the statement that the Central Election Commission transgressed the demands of the Law of Ukraine «On election of the President of Ukraine» during the establishment of the results of the election of the President of Ukraine.
Representatives of the Central Election Commission and representatives of the interested person, protesting against the stated demands, have asserted that the violations of election laws, which were committed in the course the run-off election of the President of Ukraine, did not influence and could not influence the results of the election, and that the Central Election Commission did not transgress the operating laws during the establishment of the results of the election of the President of Ukraine.
Having listened to explanations of the persons, who take part in the case, and studying of other proofs, the court reckons that the complaint must be partially satisfied on the basis of the following reasons.
On 21 November 2004 the run-off election of the President of Ukraine was carried out.
On 24 November 2004 the Central Election Commission worked out the protocol on the results of the run-off election of the President of Ukraine and adopted resolutions No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine» and No. 1265 «On publication of the results of election of the President of Ukraine».
Establishing the results of the run-off election, the Central Election Commission, at the sitting of its collegiate composition, did not scrutinize the protocols of territorial election commissions on the results of voting in corresponding election circuits, did not check their authenticity, correctness and completeness, as well as other documents listed in part 6 of Article 83 of the Law «On election of the President of Ukraine».
Before establishment of the results of voting on the day of the run-off election of the President of Ukraine the Central Election Commission did not consider the appeals and complaints on violation by territorial election commissions of the order of summing up of the results of voting in territorial circuits and the decisions taken by territorial election commissions by the results of consideration of the complaint.
At the time of establishment by the Central Election Commission of the results of the run-off election of the President of Ukraine courts had not finished consideration of the complaints, handed in proper time, against passivity, activities and decisions of territorial election commissions during summation of the results of voting in territorial circuits, and the term of consideration of these complaints had not expired.
Under such conditions the actions and decisions of the Central Election Commission contradict the demands of Articles 2, 10, 11, 12, 16 and 17 of the Law of Ukraine «On Central Election Commission», Articles 25, 28, 83, 84, 86, 93, 94 and 96 of the Law of Ukraine «On election of the President of Ukraine» and are illegal. In this connection the decisions approved by the Central Election Commission must be reversed.
The court also ascertained that the following violations of the Law of Ukraine «On the election of the President of Ukraine» were committed during the run-off election:
1. compilation and specification of the lists of voters were realized with violations of the demands of Article 34; persons, who had no franchise were included into the lists, some voters were included to the lists for several times;
2. printing, registration, giving out and use of the off-list tickets were carried out with violations of the demands of Article 33, without proper control on the side of the Central Election Commission;
3. pre-election agitation with the use of mass media was held without observance of the principle of equal opportunities and contrary to the order stipulated by this Law; the demands were not obeyed concerning the prohibition of participation in pre-election agitation of the organs of state power and local self-government, their illegal meddling into the election process was observed;
4. demands of Articles 23, 24 and 85 on composition of election commissions were broken;
5. demands of Articles 68, 69 and 70 concerning participation in the election process of official observers were violated;
6. demands of Article 77 on voting outside the election stations were violated;
7. protocols of district election commission were compiled after the calculation of votes without following the demands of Article 79;
8. transportation of documents to territorial election commissions was carried out with violations of Article 81.
The above-listed conditions give grounds for the conclusion about violation of the principles of election right stipulated by Articles 38, 71 and 103 of the Constitution of Ukraine, and the principles of election process envisaged in part 2 of Article 11 of the Law of Ukraine «On election of the President of Ukraine», which excludes the possibility to establish reliably the results of the expression of voters will in the unified all-Ukrainian election circuit.
Determining the way of restoration of the abused rights and legal interests of the subjects of election process, the court proceeds from the idea that, according to Article 98 of the Law of Ukraine «On election of the President of Ukraine», the subject of consideration of the complaint, having ascertained that the decisions, activities or passivity of the subject of prosecution do not meet the legislation on election of the President of Ukraine, satisfies the complaint, reverses the decision fully or partly, acknowledges the activities or passivity to be illegal and obliges the subject of prosecution to satisfy the demands of the claimant or to restore the violated rights and legal interests of the claimant in other way.
The way of protection of the abused right by acknowledging the candidate, who, according to the results of voting of 31 October 2004, got the majority of votes, to be the elected President of Ukraine, which way has been offered by the claimant, cannot be applied, since, according to part 3 of Article 84 of the Law of Ukraine «On election of the President of Ukraine», only that candidate is regarded as the elected President, which got more than 50% of votes of the citizens, who took part in the election, and none of the candidates got such quantity of votes.
Taking into account the impossibility to establish reliably the real results of the expression of voters will in the unified all-Ukrainian election circuit by way of repeated summation of the results of the run-off election and the fact that the run-off election of 21 November 2004 has not changed the status of the candidates, which, by the results of voting on 31 October 2004, got the greatest number of votes, the courts considers necessary to restore the rights of subjects of the election process by conduction of the repeated voting in accordance with the rules envisaged by Article 85 of the Law of Ukraine «On election of the President of Ukraine».
Following Articles 8, 71, 103 and 124 of the Constitution of Ukraine, Article 13 of the Convention on the protection of human rights and fundamental freedoms, Article 98 of the Law of Ukraine «On election of the President of Ukraine», Articles 11, 24310 and 24320 of the Civil-Procedural Code of Ukraine, the Court chamber in charge of civil cases of the Supreme Court of Ukraine,
To satisfy partly the complaint of Mykola Katerynchuk, an empowered person of candidate to Presidents post V. Yushchenko in the unified all-Ukrainian election circuit, against the decision, activities and passivity of the Central Election Commission. To acknowledge the activities of the Central Election Commission for establishment of the results of the run-off election of the President of Ukraine and composition of protocol on the results of the run-off election of the President of Ukraine of 21 November 2004 as illegitimate. To reverse Resolution of the Central Election Commission of 24 November 2004 No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine». To reverse Resolution of the Central Election Commission of 24 November 2004 No. 1265 «On publication of the results of election of the President of Ukraine». To oblige the Central Election Commission to call the repeated voting on the election of the President of Ukraine within the term envisaged by part 1 of Article 85 of the Law of Ukraine «On election of the President of Ukraine», counting this term from 5 December 2004. To hold the repeated voting according to the order stipulated by Article 85 of the Law of Ukraine «On election of the President of Ukraine». To reject other claimed demands. The decision is final and may not be appealed.
Chairman: A. Yarema
Judges: M. Baliuk,
3 December 2004 Kyiv
The Court chamber in charge of civil cases of the Supreme Court of Ukraine:
considered at the public court sitting the case after the complaint of Mykola Katerynchuk, an empowered person of candidate to Presidents post V. Yushchenko in the unified all-Ukrainian election circuit, against the decision, activities and passivity of the Central Election Commission (the CEC, in what follows), concerning establishment of the results of the run-off election of the President of Ukraine of 21 November 2004, and
According to the Decision of the Supreme Court of Ukraine of 3 December 2004, the complaint of Mykola Katerynchuk, an empowered person of candidate to Presidents post V. Yushchenko in the unified all-Ukrainian election circuit, against the decision, activities and passivity of the Central Election Commission, concerning establishment of the results of the run-off election of the President of Ukraine of 21 November 2004, was partly satisfied.
The Court resolved to acknowledge the activities of the CEC for establishment of the results of the run-off election of the President of Ukraine and composition of protocol on the results of the run-off election of the President of Ukraine of 21 November 2004 as illegitimate.
The Court reversed Resolution of the CEC of 24 November 2004 No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine».
The Court reversed Resolution of the CEC of 24 November 2004 No. 1265 «On publication of the results of election of the President of Ukraine».
The Court obliged the CEC to call the repeated voting on the election of the President of Ukraine within the term envisaged by part 1 of Article 85 of the Law of Ukraine «On election of the President of Ukraine», counting this term from 5 December 2004, and to held the repeated voting according to the order stipulated by Article 85 of the Law of Ukraine «On election of the President of Ukraine».
The Court refused to satisfy other claimed demands.
The Court ascertained that, in the course of the run-off election of the President of Ukraine numerous violations were committed of basic principles and foundations of election process, stipulated by Articles 38, 69 and 71 of the Constitution of Ukraine, Articles 2, 3, 6, 9 and 11 of the Law of Ukraine «On election of the President of Ukraine», which fact made impossible the reliable establishment of the results of expression of the will of voters in the unified all-Ukrainian election circuit. A significant part of the violations was committed by the CEC, other subjects of the election process and power organs as a consequence of passive behavior of the CEC and its members.
In particular, the questions, which should be considered jointly by the entire composition of the CEC, were, in fact, considered by separate members and were not submitted to the sittings of the CEC. In particular, in that way on 24 November 2004 the question was solved on establishment of the results of the run-off election of the President of Ukraine of 21 November 2004, when, in defiance of the demands of part 1 of Article 84 of the Law of Ukraine «On election of the President of Ukraine», the CEC only voted on approval of the protocol, which was composed without proper verification of the data by all members of the commission and without their familiarization with the protocols of territorial election commissions.
It was ascertained that mass violations of the election rights of all subjects of the election process had been observed, such as: uncontrolled use of the off-list tickets, compulsion of the workers of establishments, enterprises and organizations, including state employees, to vote with the off-list tickets, organized movement of big groups of voters from one regions to others, participation of the organs of state power in this movement and in the use of the off-list tickets. Mass media, official observers and voters informed on such violations in the course of the election. The importance of this problem was confirmed by the amendments to the Law of Ukraine «On election of the President of Ukraine» adopted by the Supreme Council of Ukraine before the run-off election.
However, contrary to the demands of Articles 16 and 17 of the Law of Ukraine «On the Central Election Commission», the CEC, in fact, evaded the fulfillment of the functions connected with the control over the course of the election, guaranteeing of realization of citizens election rights, etc.
A brutal violation of laws took place: the CEC did not execute the decision of the Supreme Court of Ukraine of 16 November 2004, which obliged the CEC to establish the results of voting in territorial election circuit No. 100.
All above-said evidences that the Central Election Commission violated the principles of superiority of right, lawfulness, objectivity, competence, professionalism, collegiality of consideration and solving of questions, validity of decision-making, openness and publicity, envisaged by part 2 Article 2 of the Law of Ukraine «On the Central Election Commission».
Besides, in the course of the consideration, the court received a written appeal from the head of the organization, which had developed the software for the CEC and realized its technical maintenance during the voting and calculation of votes. The appeal reads that, by the order of the CEC head, the codes for the access to the system were passed to unauthorized persons, which could cause manipulation with the results and their falsification with following insertion of these data to the initial protocols.
The Court chamber considers necessary to inform the Supreme Council of Ukraine, the President of Ukraine and the General Prosecutor of Ukraine on the disclosed violations of laws for taking the proper measures envisaged by laws.
Grounding on Article 235 of the CPC of Ukraine, the Court chamber
To send a copy of this special resolution to the Supreme Council of Ukraine, the President of Ukraine and the General Prosecutor of Ukraine for taking the proper measures envisaged by laws.
The resolution may not be appealed.
Chairman: A. Yarema
Judges: M. Baliuk,
Constitutional-legal analysis of the Resolution of the Supreme Council «On stabilization of political and social-economic situation in Ukraine and prevention of anti-Constitutional actions endangering sovereignty and territorial integrity of Ukraine» of 1 December 2004
In the connection with adoption by the Supreme Council of Ukraine of the decision on distrust to the Cabinet of Ministers of Ukraine and in the connection with the statement of the Prime Minister of Ukraine on non-recognition of this decision, since, in his opinion, it does not meet the demands of the Constitution of Ukraine, we, experts in the sphere of constitutional right of Ukraine, conducted the independent constitutional-legal analysis of item 7 of the considered Resolution of the Supreme Council of Ukraine and came to the following conclusions:
1. According to part 2 of Article 113 of the Constitution of Ukraine, «The Cabinet of Ministers of Ukraine is controlled by and accountable to the Supreme Council of Ukraine within the limits envisaged by Articles 85 and 87 of the Constitution of Ukraine». This constitutional provision means that the Parliament is empowered to exercise control over the activities of government. This control has the following forms: hearing of the reports of the Cabinet of Ministers on fulfillment of the State budget (item 4 part 1 of Article 85 of the Constitution), discussion of the results of consideration by government of deputies requests to the Cabinet of Ministers (Article 86 of the Constitution), conduction of parliamentary hearings with the aim of studying the fulfillment by the Cabinet of Ministers of Ukrainian Constitution, laws of Ukraine, resolutions of the Supreme Council of Ukraine (item 1 of the Regulations on conduction of parliamentary hearings in the Supreme Council of Ukraine of 11 December 2003), conduction of hearings in the Supreme Council committees (Regulations on conduction of parliamentary hearings in the committees of the Supreme Council of Ukraine of 11 December 2003), etc.
Depending on the results of the parliamentary control over the activities of the Cabinet of Ministers of Ukraine, the Parliament can approve various decisions, in particular, according to part 1 of Article 87 of the Constitution of Ukraine, the Parliament has the right to adopt the resolution on distrust to the Cabinet of Ministers of Ukraine, which, in accordance with part 4 Article 115 of the Constitution, «implies resignation of the Cabinet of Ministers».
Thus, the Parliament has the constitutional right to dismiss the government. This right is one of the main elements of the system of «containment and counterbalance», which should guarantee the efficiency of functioning of the mechanism of realization of state power in a modern democratic state, render impossible the «domination» of one power branch over another one, prevent usurpation of the power and guarantee mutual control between different branches of state power.
At the same time the Constitution of Ukraine does not allow, with the aim of guaranteeing of stability of the government, the consideration by the Supreme Council of Ukraine of the question on responsibility of government «during a year after the approval of the Program of activities of the Cabinet of Ministers of Ukraine (part 2 Article 87 of the Constitution of Ukraine). Yet, the comparison of clauses of parts 1 and 2 of Article 87 of the Constitution and their content analysis allow to draw the conclusion that the Program of activities of the Cabinet of Ministers of Ukraine, which should envisage the strategic directions and priorities of development of the state for the years immediately ahead, may be approved only one time during the entire period of its functioning, since, firstly, the State budget of Ukraine serves as an annual program of activities of the government, and, secondly, the annual approval of new Program of activities of the government would render impossible the adoption by Parliament of the resolution on distrust to the Cabinet of Ministers of Ukraine, that is, in fact, would result in «blocking» of action of the Ukrainian Constitution in this part and would deprive the Supreme Council of Ukraine of such an important form of parliamentary control.
1. Besides, according to the Temporary Regulations of the Cabinet of Ministers of Ukraine approved by Resolution of the Cabinet of Ministers of Ukraine No. 915 of 5 June 2000 «Planning of work of the Cabinet of Ministers is carried out on the basis of propositions of central and local organs of executive power by means of adoption of the Program of activities of the Cabinet of Ministers of Ukraine during the period of its authorities, annual State program of economic and social development of Ukraine, other state programs and acts of the Cabinet of Ministers» (item 1 of Section 2 of the Temporary Regulations of the Cabinet of Ministers of Ukraine).
In spite of the fact that the period of authorities of the Cabinet of Ministers of Ukraine is not directly defined in the Constitution, it follows from a series of constitutional norms. In particular, according to items 9 and 10 of Article 106 and parts 2 and 3 of Article 114 of the Constitution of Ukraine, the President of Ukraine appoints, by approbation of the Supreme Council of Ukraine, the Prime Minister and, on the request of the Prime Minister, appoints the personal composition of the Cabinet of Ministers of Ukraine. And according to part 1 Article 115 of the Constitution, «the Cabinet of Ministers of Ukraine abdicates responsibility before the newly-elected President of Ukraine». The analysis of the mentioned provisions of the Ukrainian Constitution evidences that, according to the Constitution of Ukraine, the period of authorities of the Cabinet of Ministers is the period of authorities of the President of Ukraine; the Cabinet of Ministers of Ukraine is formed for this term.
The term of authorities of the President of Ukraine is directly stipulated in part 1 of Article 103 of the Constitution of Ukraine and is equal to five years. So, the Cabinet of Ministers of Ukraine is also formed for the term of five years, if its authorities would not be ceased before the appointed time.
Thus, on the basis of the analysis of the above-mentioned norms of the Constitution of Ukraine and Resolution of the Cabinet of Ministers No. 915 of 5 June 2000, the conclusion can be drawn that the Program of activities of the Cabinet of Ministers of Ukraine should be adopted one time for the entire term of its authorities. Introduction of specifications, changes and supplements into the program is possible, but this may not be regarded as the approval of new Program of activities of the government.
2. The comparative-legal analysis of the contents of the Program of activities of the Cabinet of Ministers of Ukraine «Openness, effectiveness, potency», approved by the Supreme Council of Ukraine on 17 April 2003, and the Program of activities of the Cabinet of Ministers of Ukraine «Consistency. Effectiveness. Responsibility», approved by the Supreme Council of Ukraine on 16 March 2004, evidence that, both by structure and the titles of structural parts, this is practically the same plan of actions of the government, only with some specifications and appendages, which, in aggregate, do not change the strategic directions of work of the Cabinet of Ministers of Ukraine. The Program «Consistency. Effectiveness. Responsibility» reads: «… the Program concretizes the main goals and tasks concerning the creation of socially efficient and politically responsible power and institutes of civil society». Therefore, the approval by the Supreme Council of Ukraine on 16 March 2004 of, in fact, specified Program of activities of the Cabinet of Ministers of Ukraine did not deprive the Supreme Council of the right to adopt the resolution on distrust to the Cabinet of Ministers of Ukraine even without cancellation of its Resolution on the approval of this Program.
Besides, the analysis of goals and contents of the last Program of activities of the Cabinet of Ministers of Ukraine, taking into account the recent events in political, social and economic life of Ukraine, evidenced that the government not only could not guarantee the fulfillment of these goals, but played a waiting game and, as a consequence, proved its absolute incapacity.
3. Yet, the main argument in favor of acknowledgment that the Resolution of the Supreme Council about resignation of the government fully conforms to the Ukrainian Constitution lies in the fact that, under the conditions of deep political crisis, when the government has not taken the proper measures for guaranteeing of rights and freedoms of citizens in the process of preparation and conduction of election of the President of Ukraine of 2004, wasted large budget sums (while it appeared to be impossible to clear up the will of the taxpayers), demonstrated absolute inertness and passivity in the cases, where it had to act resolutely and consistently, thus directly violating the provisions of items 1, 2, 3, 7 and 9 of Article 116 of the Constitution of Ukraine. The government lost the trust both of the Parliament and of the society, so there is every reason to believe that governmental crisis has arisen in Ukraine. So, the demand to the government to act adequately in this situation is similar to the demand to a paralyzed man to get up and do gymnastics. In extreme situation, when the overwhelming majority of power organs avoid the fulfillment of their duty, only the Parliament has the ability and potential to undertake the resolute actions, in particular, thanks to the sensible position of the Head of the Supreme Council of Ukraine.
4. Thus, item 7 of the Resolution of the Supreme Council «On stabilization of political and social-economic situation in Ukraine and prevention of anti-Constitutional actions endangering sovereignty and territorial integrity of Ukraine» of 1 December 2004 completely corresponds to the Constitution of Ukraine and is obligatory for fulfillment by the Cabinet of Ministers of Ukraine.
Viktor Kolisnyk, Doctor of Law
Fedir Venislavskiy, Candidate of Law
Viktor Kychun, Candidate of Law
Pavlo Liubchenko, Candidate of Law
3 December 2004
Persons responsible for violations should be replaced
The Ukrainian Helsinki union of human rights and the International Helsinki Federation of human rights state that replacement of the persons, responsible for violations during the election, is one of most important preconditions for the repeated voting in the second tour of election. Mainly it concerns the election commissions, members of government, officers of prosecutors office and the heads of regional and district state administrations. It is also very important to investigate properly the mass falsifications, which are confirmed by documents, and to bring the guilty to responsibility.
Our organizations reckon that neither geopolitical nor regional cultural differences are the essence of the matter. The main factor is the fundamental right of citizens to elect their government freely and honestly. The political compromise may be made in order to prevent the conflict that would maim the country. Yet, the accusations of mass violations of election laws during the election campaign and two tours of the election should not be ignored.
The Ukrainian Helsinki union and International Helsinki Federation observed the election in Ukraine from the very beginning of the campaign. We documented that the campaign was distorted with mass violations of Ukrainian legislation and international agreements signed by Ukraine. From the very beginning we demanded to stop these violations, in particular, the violation of the right for equal access the national mass media. Similar statements have been made by international organizations, a member of which Ukraine is, and numerous governments.
The Ukrainian government ignored these statements. The majority of well-known international organizations classify the election as dishonest and unfree. Falsification of the election failed only thanks to the civil fortitude of thousands people.
We appeal to Ukrainian courts to act as an independent and responsible judicial organ, and to the power – to use its authorities for preventing falsifications, which, contrary to the will of Ukrainian citizens, determine the future of their country.
For further information turn:
Ukrainian Helsinki union of human rights,
International Helsinki Federation of human rights,
+43-676-635 66 12 (cell)
1 December 2004
From «PL» editorial board: According to item 7 of Resolution of the Supreme Council No. 2215-IV of 1 December 2004 «On stabilization of political and social-economic situation in Ukraine and prevention of anti-Constitutional actions endangering sovereignty and territorial integrity of Ukraine», distrust was expressed to the Cabinet of Ministers of Ukraine. In the connection with the statement of the Prime Minister on non-recognition of this decision, since, in his opinion, it does not meet the demands of the Constitution of Ukraine, we are publishing, in what follows, the constitutional-legal analysis of item 7 of the considered Resolution of the Supreme Council of Ukraine.
Open letter from the Kharkiv human rights protection group to participants of the negotiation process (on political situation in Ukraine as of 07.12.04)
So, we are certain that it is our obligation at the moment to say the following:
1. We consider the attempts to merge in one «package» vote for amendments to the Law on Election of the President of Ukraine, issues of resignation of the Central Election Commission (CVK) and the Ukraines Government, and issues of the Constitutional reform morally, politically, and legally unacceptable.
First of all, such a merge seems to us deeply immoral. When the opposition demands the resignation of the government and CVK, as well as amendments to the current election legislation, it is not about these or those political or legal gains for the opposition, but rather about a revival of a fundamental and natural right of the people and each citizen of Ukraine to vote fairly and equally, i.e. effectively, in order to get their sovereign will through, which, we would like to remind you, is not below, but above the participants of the negotiation process.
In this respect, we stress once again that the citizens voting rights, rights to fairly elect and be elected, go ahead of all the powers, their branches and departments, as well as all the state authorities and political institutions – from the Parliament and President to the Cabinet of Ministers and CVK altogether. Because two latter institutions, by and large, are no more than political managers, functionaries, servants to the people.
This is why the voting rights, their range and the procedure of their effecting may not be the subject of short-term deals, bargaining, or any other political gambling. The election procedures may not be artificially worsened or improved depending on individual preferences. In a jural democratic state, they always have (should have) only one vector: improving individual effectiveness, guarantees, and, consequently, political potency.
Hence, any subject of the Ukraines political system may not (has no right) to promise any improvement (a modification, in general) of the election legislation on a security of voting or not voting for the constitutional reform or of any other parliamentary voting in general.
The will of the Ukrainian people both in material and procedural sense may not subdue to (yield to, depend on) a will of any participant of the negotiation process. This will is a priori sovereign, supreme, naturally superior of any subject of the negotiations, the national political elite in general. We would like to remind you once again that the decisions, whether to make a second round (re-vote) of the presidential election «more» or «less» fair and transparent, may not and should not depend on any insider deals. Because the values, which are directly affected here, are by far superior of the interests of the party leaders, parliamentary factions, presidential candidates, Prime Minister, or the CVK. They are even superior of the personal interests of L. Kuchma, V. Yanukovich, P. Simonenko, O. Moroz, or V. Yushchenko.
2. Further, the issue of the constitutional reform, honestly speaking, is too important and fundamental, to be «shoved» to existence in the situation of political crisis, which is in place today. Reminder: the Constitution is a superior strategic regulator of Ukraines domestic and international political life. In this capacity it may not be a hostage or subject of any operational political tactics. The Constitution is substantially superior of any political tactics, superior of any operational parliamentary or presidents maneuvering, and, consequently, it may not be modified or corrected in the regime of emergency, so to speak, «at odd moments.»
We once again would like to assert that the suggested version of modifications to the Constitution in Bill No. 4180 is far from optimal. It does not agree with basic political and legal logic and quite often contradicts the common sense.
It is well known that the 1996 Ukraines Constitution was written following the best examples in Europe and in the world of the time. While being the conceptually borrowed document, it, in its political and legal qualities, surpassed the vernacular creative possibilities of constitutional thought then existed in Ukraine.
Today the situation looks principally different. In contrast to the integrated, publicly well known text of the current Constitution, the draft political reform is a result of our exclusively «home-made» designs and developments, a product of the political culture that virtually exists now. So, although the bill this time is really national, its political and legal qualities remain more than questionable. Its not an accident that this bill was condemned by the Venetian Commission, which, in polite but transparent form, let us know that the design of our constitutional «bicycle» had not been improved. Unfortunately, however, the sincere and honest criticism by our good colleagues and friends, failed to positively influence our sensible persistence… Furthermore, it looks like that our naпve self-confidence in the issues of constitutional theory even grew.
We have repeatedly pointed out that almost all the mixed draft constitutional amendments, which the current authorities with various intensity tried to push through in various periods, broke the imperfect but viable executive ladder of management, introduced a disciplinary statute for public deputies, played to the political primitivism of party bosses and faction leaders, completely leveled the expressions of peoples individuality on major levels and steps of the government.
In this sense, the last version of Bill No. 4180 on the constitutional amendments is another attempt of incompetent constitutional correction. Having no desire to raise its level of political culture to the requirements of the current constitution, the acting authorities stubbornly try to reduce the level of constitutional correction to their confused and shortsighted pseudo-democratic notions.
And there is no one among the leadership, who feels uneasy, as the bill actually breaks the integrity of domestic and international policies of Ukraine, encroaches on a Cabinet of Ministers principle of collective responsibility, ignores a principle of division of power. The bill introduces a basis for non-critical parliamentary collectivism and apparently increases risks of a Parliament-vs.-President confrontation…
However, the most important thing, in our opinion, is that Bill No. 4180 actually narrows down a social base of democracy in Ukraine. According to the constitutional reform design, the nations strategy and tactics becomes a prerogative of the Parliament, which, in comparison to the people, after all, could be corrupted. Everybody knows that the democracy of masses is important, just because it is impossible to physically corrupt the people. This classic thought, old-established in political science, has repeatedly confirmed in various places. Therefore, in the Ukrainian situation, the dependency of the influential presidential position on a direct popular vote is absolutely justified, urgent, and doubtless.
This dependency is also a strategic counterbalance against possible international political pressure on Ukraine. Besides, Ukraine is still on such a level of political development, when its financial and economic power and policy is overly merged. This is why, in the Ukraines political system, the popularly elected President still plays an important role.
As it was partly noted above, the President with strong powers is important for adequate national response to Russian and other similar challenges. Moreover, Russia, other CIS countries are all presidential republics, which international policies influence us, and not only in the matters of energy supply. Needless to say that Ukraine must have the presidential mechanisms of rapid force to respond to the challenges of this kind. Obviously, in this case we speak of something bigger than just optimization of relations at the level of executive power.
That is why we consider that the subject of the constitutional reform could have been even the strengthening the Presidents executive powers, direct subordination of the Cabinet of Ministers to the President, along with making him directly politically and legally responsible for actions and policies on the part of the government.
In any case, the reduction of the Presidents status to solely representative functions on the international arena suggested by the reformers, is, in our opinion, not only poorly motivated and justified, but also dangerous for providing national independence and peoples sovereignty. If the reform does occur, the all too great corporate organization of Ukraines political system will sharply increase. Influence of self-interest on the part of powerful financial and economic groups on the Parliament will become stronger and of systematic nature.
A very different story is a Ukrainian moderate federalism, which could, in terms of reform («two Ukraines»), be discussed in earnest. After all, the idea of decentralization has been recognized in Ukraine since M. Dragomanov. It is well known that M. Grushevskiy, S. Shelukhin, and R. Laschenko were ideological federalists. In general, the constitutional reform of such kind could have been, in fact, timely. However, it should have been a very different, really anti-crisis reform.
3. We stress, in particular, that the parties, which leaders during the presidential campaign got 5 to 6% or even less of the popular vote may not be lobbyists for the constitutional (political) reform. We cannot understand at all, why the ideas of the reform should be implemented by those, who expressed most reservations about it and on that basis got their most electorate support.
It looks absolutely illogical that V. Yushchenko, using his authority, ha to carry out ideas of political losers (we kindly ask not to take this thesis personally), like P. Simonenko or O. Moroz. We can speak and write a lot of different things on the matter, but in the intention and attempt to carry out the reform at the expense of «Our Ukraine» [political party], we see a situation, when «a winner follows a loser.»
Once again, we would like to bring attention of political leaders to the fact that effecting the constitutional reform with radical transformation of presidential powers between first and second round (re-run) of the presidential election campaign is absurd and unconstitutional. It is obviously unacceptable, when Ukrainian citizens voted for President with one status in the first round, and would vote for President with obviously other status in the second one.
We understand that those hundreds of thousands people on the Independence Square in Kyiv in the December frost stand not for electing a person who just «governs but not rules.» The people on the Square stand for electing their cherished President of truth and good. Consciously and subconsciously, they rely on him personally, on the power and authority of his constitutional post. The people on the Square are fighting for a fair getman [Ukrainian traditional ruler], not a cunning courtier. We dont think its advisable to anybody to forget about that.
The power of spirit, vivid mind, openness and moral cleanness of the people on the Square is incomparably superior of the obscurant sense of the divisive constitutional reform. Students, workers and businessmen do in fact stand for reform, though not for the reform of formal institutions, but for the change of the pathologically corrupt and dishonest authorities. All of them do not protest against the half-baked legal forms. They protest against that human material, with which these forms are filled under the circumstances. So, they protest against lazy and disconnected people, not against constitutional ABC and norms. This is why the current attempt of the constitutional reform is, in our opinion, an attempt made by the old authorities to divert the energy of human burst into a wrong channel. The dead haunt the alive, the former envy the easygoingness and freedom of the latter, exerting their last strengths the dead pull us back to the old, moldy, and dark political grave.
We are certain that the people on the Kyivs Independence Square protest against their personal humiliation, caused not by institutions, but by absolutely real individuals. However, the traitorous, angry, or just not very intelligent politicians want, at any cost, to convince us that these peoples enemy is not those evil-minded embezzlers of public funds with pretensions of provincial snobs, but something abstract and formally-legal.
In this sense, the «reformers» are not ironing down the current crisis situation, but rather making it more acute. Because in reality, the Squares demands are modest: just fair, not falsified elections. In contrast, the reformist demands on the part of authorities are ambitious and totally immoral. They want to turn the public power into a «reform,» which does not augment, but suppresses and kills our best hopes.
4. And V. Havel, in his commentary on the events of the Ukrainian orange movement, was right: its not only about the election of V. Yushchenko, but about a funeral of the Ukrainian post-communism in general. So, the ring, which is in the air over the national capitals square for half a month already, is for that. In this place, people rid themselves of their fear, and along with it, their feeling of dependency and enslavement. Their leader is an antithesis to immorality, as well as to an authoritarian political style. So, he is an antithesis not to a form, but to an old political substance. Really, V. Yushchenko is a Ukrainian political «outsider,» a bohemian, in the best meaning of this word. His style of communication with the public is off-hand and easy. His thoughts are both refined and clear. He is really a peoples candidate, a personification of the Ukrainian meritocracy of talent.
In fact, this is clear to all participants of the negotiation process. On the other hand, rational thinking of these people in power mixes with their many not quite elegant «secondary» feelings. Once T. Mann said about French king Henri IV, «He was simple in his soul, but not in his mind.» Obviously, V. Yushchenko has soul and mind, a natural charisma.
The real scale of the personality, depth and significance of this figure, are growing literally before our eyes, unfolding day by day. With the same speed, also is growing the human envy to this. We have an excellent phenomenon of the persons natural augmentation with all the connotations, which usually accompany these things.
A free people rarely make mistakes and love a person, who really deserves it. It just happened that the Ukrainian people fell in love with V. Yushchenko. In comparison to his enthusiastic and genuine popularity, figures, who just very recently were in the foreground, now look very insignificant. It just happened that those people are subjects of the negotiating process. So, our letter is addressed to these people in the first place.
Obviously, the Ukrainians will not stand for any of them in the frost for half a month. But do they have a moral right to be offended with this? And is it reasonable in this situation for them to think about how quickly and skillfully clip wings to the leader, who managed to show people the advantages of dignity and freedom?
Do they really want that strongly the constitutional reform? Do they really want fairness, guarantees of human rights, democracy?
We cannot exclude that our people in power do want to look at these wonders. However, we certainly will never know it. So, having our justified doubts and anxiety in mind for all they have done, we address them our request not to be so die-hardly careful about our interests.
In the end, we would like to tell these people: give up your political envy, forget about your spiritually petty and poorly thought of constitutionally-separatist scheming, step out, allow the Ukrainian people, at last, to hit the free road.
7 December 2004
The Kharkiv Human Rights Protection Group
Ukraine gets better rating of civic freedoms
"Russias step backwards into the Not Free category is the culmination of a growing trend under President Vladimir Putin to concentrate political authority, harass and intimidate the media, and politicize the countrys law-enforcement system," said Freedom House Executive Director, Jennifer Windsor. "These moves mark a dangerous and disturbing drift toward authoritarianism in Russia, made more worrisome by President Putins recent heavy-handed meddling in political developments in neighboring countries such as Ukraine."
Other former Soviet countries registered setbacks in 2004. In Belarus, which already ranked as the least free country in Europe, harassment of opposition political forces ensured the victory of President Aleksander Lukashenka in an election in which he ran virtually unopposed. In Armenia, the governments violent suppression of peaceful civic protestors underscored its increasingly unresponsive and undemocratic rule. The region was not devoid of positive developments, however. Ukraines civil liberties rating improved in the wake of pronounced civic activism, greater judicial independence, and the widespread expansion of media freedoms following a flawed presidential election. In Georgia, the January election of Mikhail Saakashvili as president, and a well administered parliamentary election in March, improved the countrys political rights score after international monitors deemed voting free and fair.
"The positive experiences in Georgia and Ukraine indicate that democratic ferment and non-violent civic protest are potent forces for political change," said Ms. Windsor. "They also reinforce freedoms gradual global advance." According to the survey, 89 countries are Free. Their 2.8 billion inhabitants (44 percent of the worlds population) enjoy a broad range of rights. Fifty-four countries representing 1.2 billion people (19 percent) are considered Partly Free. Political rights and civil liberties are more limited in these countries, in which corruption, dominant ruling parties, or, in some cases, ethnic or religious strife are often the norm. The survey finds that 49 countries are Not Free.The 2.4 billion inhabitants (37 percent) of these countries, three-fifths of whom live in China, are denied most basic political rights and civil liberties.
Of the 49 countries rated Not Free, 19 received the worst possible numerical rating (7) for political rights. The broadest restrictions on political activity take place in Belarus, Burma, Cuba, China, Equatorial Guinea, Eritrea, Haiti, Iraq, Laos, Libya, North Korea, Saudi Arabia, Sudan, Swaziland, Syria, Turkmenistan, Uzbekistan, Vietnam, and Zimbabwe.
Four territories, Chechnya (Russia), Kashmir (Pakistan), Tibet (China), and Western Sahara (Morocco) also received the lowest political rights rating. The broadest violations of civil liberties—including freedom of speech, rule of law, and personal autonomy—take place in 9 countries: Burma, Cuba, Libya, North Korea, Saudi Arabia, Somalia, Sudan, Syria, and Turkmenistan. Chechnya and Tibet are also included in this category.
A total of 8 countries—Burma, Cuba, Libya, North Korea, Saudi Arabia, Sudan, Syria, and Turkmenistan—receive the lowest possible scores for both political rights and civil liberties, making them the most repressive regimes in the world. Chechnya and Tibet also fall into this category.
The right to a fair trial
Institution of criminal case against a member of «Pora!» in Chernigiv was illegal
Ukraine fails to execute court decisions. Again.
The applicants, Valentyna Mykolayivna Derkach and Mykola Ivanovych Palek, are Ukrainian nationals, who were born in 1962 and 1957 respectively, and live in Vyshgorod, Ukraine. They complained, under Articles 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy) of the Convention, about the non-enforcement of judgments given in their favour in 2002 and that they had no effective domestic remedy to recover the debts (salary arrears and compensation) owed to them by their former employer, a State-owned enterprise. They further complained, under Article 1 of Protocol No. 1 (protection of property), that they were prevented from receiving in full the money to which they were entitled.
Noting that the judgments given in favour of the applicants had still not been executed, the Court held, unanimously, that there had been a violation of Article 6 § 1. The Court did not consider it necessary in the circumstances to rule on the same complaint under Article 13.
The Court further considered that the continuing impossibility for the applicants to obtain execution of their judgments (more than two years so far) constituted an interference with their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1. While that interference might be considered justified in part by the prohibition on the export of the contaminated property of the applicants former employer from the Chernobyl zone (thus preventing the attachment of the companys property), in the Courts opinion, such a measure, undeniably involving the pursuit of a legitimate public interest, did not strike a fair balance between the States interests and those of the applicants. In the event, the entire financial burden had fallen on the applicants and the Ukrainian Government had not explained to its
satisfaction why funds could not be earmarked for honouring the debts owed to the applicants. By failing to comply with the judgments given in favour of the applicants, the national authorities had prevented and still prevent the applicants from receiving in full the money to which they were entitled. Accordingly the Court held, unanimously, that there had also been a violation of Article 1 of Protocol No. 1.
The Court awarded the first applicant EUR 1,405.08, and the second applicant EUR 2,380.92 for pecuniary damage. (The judgment is available only in English.)
Freedom of expression
Repressions in Lugansk continue
The road guards disliked the newspaper, they regarded it as agitation materials and ordered S. Shvets, the driver of the truck, who had all documents for the load, to drive to the Artemovskiy district militia station. There it turned out that, for some reasons, one invoice was absent in the documents.
When, about 1 p.m., N. Kozyrev, a representative of the Lugansk human rights protecting organization, arrived at the district station and tried to clear up the reasons of detainment of the driver and load, it appeared that detective V. Pleshchakov could not explain the legal grounds of the detainment. In spite of the fact that, by that moment, Sergiy Shvets had already stayed at the militia station for more that three hours, protocol of the detainment had not been compiled, and the status of the detained was defined as «interrogated».
The report of the road militia read: the amount of the load did not correspond to the accompanying documents – there was no invoice for 20000 copies of the newspaper. The detective stated that if there was this invoice, there would be no reasons to detain the load and the driver.
In an hour the invoice was transmitted by fax from the sender and handed to Pleshchakov. Yet, the latter decided to «agree» this question with somebody, with whom Kozyrev could not meet, and was doing it for two hours more. At last the detective said that it was ordered to confiscate the load because it did not correspond to the law; the same reason was mentioned in the protocol of confiscation. We could not ascertain the criterion of «non-correspondence».
However, during the unloading in presence of witnesses (one of them was also a detained), Pleshchakov declared that the load had agitation character and allegedly contained the appeals to coup detat (!). When the diligent detective was warned that he was realizing the political censorship, he did not react, continuing to carry the packages of newspapers into the building of the militia station.
The act of confiscation was compiled, and the human rights protector added to it: «The load was confiscated without any legal grounds. The confiscation is an act of political censorship».