The events of November and December 2004 have set new problems before Ukrainian society. Decision regarding those problems cannot be postponed. Recoil follows any revolution – the restoration, which soon becomes strict if it does not meet resistance. Now we experience the moment when society can and must widen the space of liberty and consolidate itself on the territory won from the state.
In practice, that means the revision and change of the most important laws concerning human rights and fundamental freedoms and, correspondingly, a change of the application of law.
However, the new laws will not work if the semi-feudal system of state-social relations, where only proximity to power guarantees safety, preferential conditions and welfare, remains unchanged. The current fiscal scheme is such that it is impossible to work without stealing and/or bribing. Everybody is vulnerable and can be crushed with the entire might of the state machine, and everybody pays tribute to the system.
Moral decline is one of the main reasons of the social crisis in our country, and it precipitated the “orange revolution”. It is necessary to change the moral climate in society. We must begin from the worst possible scenario, assuming that we have only several months, at most a year, to launch these processes, to make them irreversible.
It should be noted that people, and relationships between them, are more powerful than laws. Laws only legalize existing relationships. Ukrainian society needs, above all, purification – a rejection of the immoral system of social relations which have been formed in the era of Kuchma’s regime and which have strong roots in the communist system. A process, similar to the process of denazification of Germany after the WW2 and decommunisation of the countries of Wyszegrad four and Baltic countries in the beginning of the 90s, is needed. This process in Ukraine is called “dekuchmization”, because Leonid Kuchma embodies the established regime and is responsible for the moral decline of society. There is a definition known as the “Kuchma’s epoch”. At the same time, one should not forget that everybody is to some degree responsible for having accepted and quietly tolerated this situation for so long.
Stages of Dekuchmization
1. People must learn the truth about the crimes and selfish acts of the outgoing government, and about how they were robbed for all these years. It is necessary to declassify and publish numerous presidential decrees, government resolutions and other normative acts with illegal classifications for restriction of access (“for service use only,” “not for publication”), which, in fact, veil the corrupt activities and personal benefit of top state officials and the power organs, such as the State Administrative Department, Constitutional Court of Ukraine, Supreme Council of Justice and others, serving them.
The Kharkiv Group for Human Rights Protection carries out monitoring of such facts using the “Liga: Zakon” computer system, and we can testify that in some months, the proportion of secret presidential decrees comprised about 10%. And each time any of these decrees were made public, it turned out that they were either to the benefit of president or his faithful lackeys (for instance, the notorious resolution about the DUS, the budget of which is much greater than the budgets of many ministries, such as the Ministry of Transport, or the decree regarding extra payments to members of the Supreme Council of Justice, etc. – examples can be found in “Svoboda Vyslovliuvan and Pryvatnist” magazine [“Freedom of Expression and Privacy”, No. 1, 2003]), or for the concealment of lobby agreements (i.e. between the RAO “Gazprom” and NAK “Neftegaz Ukrainy” about the gas consortium) from society. “The National Program of Development of Energetics until 2010”, which was adopted as early as in 1996 without any discussion within society, is still hidden behind the classification “for service use only.”
The “List of Informational Items Regarded as State Secrets” must be revised too, as well as the very system of imposing secrecy on information. The mentioned list is unreasonably broad, and sometimes even absurd (for example, the number of officers within the customs service or the results of prosecutor’s checks of complaints against violations of human rights are state secrets).
After publication of such information, people will understand under what kind of boorish system they are made to live. The declassified data will become a rich source of material for journalists for informing people about the crimes of the current legislature.
2. Many court cases should be re-evaluated, especially those connected with political persecution of the opposition and businesses that supported it. Examples are the case of the Slavianskiy Bank, the case about the Ingulets Terrorist Act of 1999 (Kuchma has recently pardoned Sergey Ivanchenko after petition by his wife Inna, but other figures in the case remain in custody, and the victims, as far as is known, did not get any or got minimal compensation), the case of March 9, 2001, the case of Donetsk advocate Salov (incidentally, the European Court will soon decide his case) and many, many other cases.
It is noteworthy that all of these cases are mentioned in Melnichenko’s records, which are a very important source of information. Finally, it is necessary to conduct parliamentary investigation of Melnichenko’s records, because they will not fade away and like a heavy weight, do not allow continuation.
Whenever parliamentary investigations provide proof of crimes of state officials, those have to be tried as soon as possible, so that the government can begin to earn the trust and respect of its citizens.
Naturally, a proper and neutral investigation of G. Gongadze’s case and cover-up must be also be started and completed as soon as possible.
3. It is necessary to carry out public investigation and analysis of most of the important events in various areas – political, economic, social, ecological, etc., in which the government has deceived the population, and to provide public disclosure and assessments, including legal ones, of these events. Without that, there is no closure and the new government is burdened with the guilt of all that happened under the Kuchma regime.
It is necessary to review the history of an independent Ukraine, to compile the list of such events over the past 15 years, and to create specialist groups. A good example of such public expertise was the analysis of the Chernobyl catastrophe, made by ecologists in the beginning of the 90s. The results of this were published in Ukrainian and English. I believe that it would be possible to find the means and money for such investigation. In cases in which of someone’s rights were abused, these rights should be restored or, at least, moral and material damage should be recompensed.
A thorough review must be conducted concerning the fulfillment of the 2004 state budget (jointly with the counting chamber) and local budgets. It is quite predictable that the already partially exposed, large-scale financial abuses connected with the election will be exposed as systematic and habitual abuses of government funds.
An analysis of foreign-policy relations, first of all with Russia, should be carried out soonest. It is necessary to evaluate gains in national welfare and sovereignty of our country, whether those gains came from support of Kuchma’s regime, or whether they were won fighting Kuchma’s regime.
4. All the various mechanisms of falsification during the November 21 presidential election must be made public. Until those crimes are freely exposed, the government is seen as being complicit and as approving of those crimes.
Considering the political climate during which those crimes were committed, it will be reasonable to grant an amnesty period during which people can confess without fear of criminal persecution, however, with no guarantee that the act of confession during the amnesty period will protect their political careers. To speed up the process, the amnesty period should not exceed three months.
Following this period, normal investigations with the power to subpoena witnesses and regular but speedy court proceedings are required to clear the air and complete the election process.
5. Now, as 15 years ago, the problem of “de-KGB-zation” is extremely acute. Certainly, the USS differs from the KGB. Nevertheless, the USS could not avoid being used for political persecutions by Kuchma’s administration, especially in 1998-2001, when Leonid Derkach headed this special service. There is much evidence confirming that, unfortunately, the USS inherited many of the KGB’s attributes: Illegal actions, intimidation, blackmail. At the same time, the USS created a myth about itself – that it was the most honest and uncorrupt state organ. Reorganization of the USS in the beginning of the 90s was not transparent; the report of the commission, the members of which were Altunian, Goryn and Kostenko, was not published. Open review of USS activities should be conducted with full participation of the public, as well as consideration of the data about the meddling of the USS in the activities of political parties, public organizations and business, and the establishment of truth in these questions and renewal of the USS staff. A wide-scale public discussion on the priorities of national security is also necessary since it has become well-known that the USS has frequently reinterpreted these national priorities to favor certain cliques that thrived on exclusively privileged information, which actually should have been available to the whole country.
For example, informational security and accuracy is one of main priorities for the USS, whereas violations of the freedom of informational exchange results in a stagnation of the country. Actions of the USS in the informational sphere evidence either that some selfish interests are pursued, and that many officers do not at all understand that the world changed after the inception of the Internet (see, for instance, our text on the case of Sevastopol biologists in the magazine “SViP”, No. 1, 2001).
About mechanisms: A special law needs to be created according to which the public commission can obtain access to secret information and can investigate complaints about illegal actions of the USS. The same commission must replace this service’s staff, which can be done according to the Polish or Czech model: All officers are dismissed and the commission conducts re-enrolment and re-employment. As for secret workers of the special service, the disclosure should be carried out: The information about their work in the KGB or USS must be made public, if they want to be elected or appointed to more or less high state posts. Here the already tested Polish experience can be used again: In accordance with the Polish law on disclosure, everybody, who wants to be elected or appointed to certain posts (ministers, judges, etc.) must state whether or not they were secret agents of special services. A special disclosure court, which possesses corresponding information, establishes truth on this question, and if the candidate has lied, he is deprived of political rights for a term of 10 years. And if the candidate did confirm that he was an agent… well, voters have a right to know this fact from his biography. Voters must know everything about candidates.
6. The question of renewing other law-enforcement agencies (prosecutor’s office, police, tax police, custom service, etc.) is not less important. The information about the illegal actions of these structures needs to be disclosed and analyzed with corresponding consequences, including staff replacements where necessary. There is no need for the tax police at all. It is very important to prevent their meddling into business and terminate the disgusting practices of “protection.” The problem of mass surveillance should be also considered, in particular, the broad control of communications which brutally violates the right to privacy. It is known that in 2002, the appellate courts issued about 40,000 sanctions for collecting information from communication channels by the operative departments of law-enforcement agencies (for a comparison, 1,367 sanctions were issued in the same year in the USA, in spite of their struggle with terrorism). It is necessary to publicly analyze how these sanctions were distributed among criminal police, tax police, the USS, friends and associated businesses of certain privileged cliques, etc.
There is a definite need to evaluate what the efficiency of their use was – how many criminal cases were started, how many of these cases were passed to court, what verdicts were issued, and how many had no public benefit at all. Renewing these structures is justified on the same basis as renewing the USS.
7. Changes are urgently needed in education, both secondary and higher. Academic freedoms have not been well developed in our country. The initiative “Akademichna Chesnota” (academic honesty) describes this problem well. It is shameful that only three rectors in the whole country openly protested against obvious falsifications of the election. The situation is especially deplorable in juridical higher educational establishments: The old Soviet paradigm of right still prevails there today. The institutes train obedient lawyers, serving the interests of the state. In my opinion, staffing decisions should be made regarding the most infamous and odious rectors, such as Tsarenko (Sumy).
8. Business and political activities must be separated. Much has already been said and written about that topic, so we will only refer to the existence of that problem.
9. It is necessary to create institutional mechanisms of public control, parliamentary and extra-parliamentary. In fact, such mechanisms are very badly developed or do not exist at all today. The public needs a reasonable and efficient method to recall politicians who have lost touch with current realities, like the Davis recall in California.
10. Special measures are needed to improve the independence of judicial powers, and to support the authority of justice and reformation of judicial power, which in its essence, should not be state-run. If the court is an agency of state power, then it may not issue decisions in cases against the state, since the court may not be a party in consideration of such cases. So, court decisions must be issued in the name of the law, but not in the name of the Ukrainian government. On the whole, it is one of the most important problems. Today, the independence of courts is, in fact, fictitious. Court reform is not complete, and many operating norms need to be changed. Judges’ salaries should be increased, first of all in local courts.
These figures were made available one year ago: The budget provision of a judge of the Constitutional Court was 600,000 hryvnas per year, of the Supreme Court, 120,000 hryvnas per year, and of a local court, 12,000 hryvnas per year. This disproportion begs the question of how high the average bribes are, and must be corrected as soon as possible.
In light of the new and different political climate, it is necessary that the old Constitutional Court be disbanded and created again on the basis of special law. The composition of the Supreme Court of Justice should be also reviewed. Yet, the most serious problem is guaranteeing public control over judicial power. If certain crimes weigh heavier on the public mind, then the judicial powers have to recognize that and not hide behind precedence. While difficult, this problem must be solved immediately.
11. Structure, proportion, function and quantity of state apparatus need to be reconsidered. The functions of the presidential administration need to be changed, and such structures as the state administrative department must be abolished completely.
The necessity for such agencies as the committee in charge of TV and radio broadcasting in their current mode is very doubtful, at the very least their functions should be revised to focus on band allocation, enforcement of freedom from cross-band interference, and publicly accepted standards of decency, but most definitely not political control.
12. It appears necessary and overdue to reconsider the edicts about giving the status “Hero of Ukraine” and other state awards to politicians who were only doing what they were paid to do, or a portion of that. It is disgraceful that this status was given to Medvedchuk and Boyko, while such people as Evhen Grytsiak and Danilo Shumuk, for example , real heroes of Ukraine, were not honored with this title. A public reconsideration of those edicts should be guided by a public commission consisting of people who have undisputed moral authority and no direct connection to the government.
The realization of many of the above-mentioned propositions will inevitably reveal numerous incidents of corruption, abuses of power and other crimes. In connection to this, much is to be debated about disclosure. The Czech and Hungarian disclosure for example, where collective guilt was bestowed on all state officials occupying the posts higher than, for example, the head of state district administrations, was counterproductive and too disruptive. Learning from that bad example, we should accuse, investigate, punish or forgive strictly according to the merits of each individual case.
This is also directly related to the outgoing but still sitting president, Leonid Kuchma. The attitude towards former rulers is a function of how radical and drastic a change was accomplished in a revolution, moderated by the level of civilization of a country.
However, whenever there is admissable evidence of the crimes committed by Kuchma, then he must be tried.
In the economic sphere, the correction of abuses of power should be approached very carefully. While abuses of power and illegal business practices need to be punished immediately, and proceeds of ill-begotten benefits need to be stopped from going to the perpetrators, corrections and reversals of currently active deals and arrangements need to be tempered with a long-term view of the Ukrainian economy and Ukraine’s worldwide business partners, and rash actions should be avoided. Above all, it is necessary to separate business from politics, and to introduce, at last, definite rules. Here we will expect that the professionalism of Yushchenko and his team will supply the necessary insight and detail planning.
What should be changed in legislation?
First of all, I want to point out that the constitutional reform, adopted on December 8, is good for nothing. It is curtailed, ignores many important moments, is a source of unavoidable conflict between the president and prime minister (it would be more efficient to make the president head of the executive, and to subordinate the government to him), re-establishes typical Soviet general surveillance of the prosecutor’s office, and turns deputies into button-pressers and unconscious executors of will of fraction leaders. It is noteworthy that, since law draft No. 4180 has been changed again, it must be approved by the Constitutional Court, and then later confirmed with one more vote by the constitutional majority. I think that a campaign should be started against constitutional reform in this form. We need authentic – but not invented – constitutional reform. The Constitution of 1996 was a compromise with leftist forces, that is why it established such timid capitalism and contained many social guarantees of the purely Soviet type, as well as idle promises, which could not be fulfilled by any power. I believe that the Constitution does not conform to today’s reality, and it should be written anew. It should also be taken into account that the constitutional system does not work, because the institution of constitutional complaint is absent: Individuals have no opportunity to complain to the Constitutional Court regarding the violation of constitutional rights. So essentially, it is not a court at all. There is another reason: Corresponding procedural law does not exist. Thus, it is necessary either to liquidate the Constitutional Court and transfer its authorities to the Supreme Court (for which protocol demands the change of Constitution and so is rather complicated), or to adopt new law in the Constitutional Court, widening the circle of individuals who have the right to complain, changing the principles of its forming and introducing the procedure of consideration of cases. The latter can demand a special law (something like a constitutional procedural code).
As I have already written above, strong and independent judicial power is a necessary condition of the country’s renovation. It is necessary to revise laws regulating the activities of courts from this point of view, and norms should be introduced into these laws which would regulate the influence of nongovernmental organizations on the election (appointment) of judges. The same can be said about the laws regarding the prosecutor’s office and other law-enforcement agencies: Mechanisms of public control should be created for protection from the arbitrary actions of these agencies. The existing law on public control of law-enforcement agencies and the armed forces does not stand up to criticism; it must be rewritten completely. It is advisable to elaborate and adopt a draft law on public control over the activities of the executive (including prosecutor’s office and the security service), which would develop the concept of parliamentary and extra-parliamentary control. The prototypes of such draft laws have been prepared before, so they can be used. It is also necessary to remake the outdated law on the ODA (which contains very weak guarantees of human rights), paying special attention to the control of telecommunications by law-enforcement agencies. It is important to win the struggle for the Criminal Procedural Code, which was sent for revision five times before the second reading in 2004. And the Criminal Executive Code, which has already been in effect for a year, must be changed radically.
Control over the activities of power can be realized only by a well-informed society. So, clear and distinct procedures of access to information are needed, in particular, regarding access to the archives of special services. As for the incredibly swollen informational legislation, it, in my opinion, impedes the development of the informational sphere rather than helps its development, restricts freedom of speech and the press rather than increases it. Some laws are merely harmful, for instance, the law on elucidation of the activities of the agencies of state power and local self-government, or the law on social guarantees for journalists. The temptation exists to abolish all the numerous laws regulating informational relations and to start from the very beginning. It is desirable to consider such possibility, too.
It is necessary to reconsider the all most important laws concerning political rights and civil freedoms from the viewpoint of strengthening guarantees of rights and freedoms and participation of public organizations. I mean, first of all, the laws on parliamentary elections and local power agencies. It should be done beforehand, long before an election is held. The election would be honest and transparent if the executive would not take part in it, and if public control would be guaranteed. Likewise, distinct and real procedure of recalling deputies should be envisaged. An updated law on public associations must be at last adopted, since the law of 1992 have already become obsolete and contradicts the present-day situation more and more. It is also necessary to create and adopt a law on the conducting of rallies, demonstrations and other public actions, since both local authorities and courts are still guided by the old Decree of the Presidium of the Supreme Council of the USSR of July 28, 1988, which has a pronounced resolving character and contradicts the Constitution.
Social guarantees must be revised for segments of the population which cannot achieve an adequate standard of living for themselves, since the difference between the poor and rich in Ukraine is enormous. Overcoming poverty must become one of the main priorities in 2005.
Finally, it is necessary to adopt amendments to the law on the rehabilitation of victims of political repressions, to pay old state debts to these people and to liquidate the state of discrimination in which some of them find themselves.
How achieve this?
I want to suggest the following actions for realization of the above-described process. Working groups should be created which would be responsible for the elaboration of every direction; these groups should include people from Maidan, representatives of the new administration and parliament, as well as experts able to consider corresponding problems. Members of the groups may live in different towns and communicate through their internal transmissions. These groups should start working and obtaining the first results in the form of a preliminary list of questions which need answers. Every group must systematically elucidate its work on the maidan.org.ua web site (keeping confidentiality, if necessary). There must be a press secretary in each group, who would inform journalists about the group’s work. Sepcialised work of the groups may be supported by Maidan’s public actions, since it would be very difficult to “promote” many plans. I also suppose that this work would be agreed with the new administration. Also, it is desirable to be one (but not two!) step ahead from the standpoint of radicalism. I believe that this area must not be financed by state. This is a separate question, and, apparently, it is early to discuss it.
In what follows below, I suggest the list of possible working groups with a brief description of preliminary information necessary for their work:
1. GUARANTEE OF THE ACCESS TO INFORMATION, DECLASSIFICATION OF ALL NORMATIVE ACTS WHICH WERE CLASSIFIED ILLEGALLY. REVISION OF THE INFORMATION CLASSIFIED AS “STATE SECRET.”
The Kharkiv Group for Human Rights Protection (KhG) has had the list of such documents for past four years. Several such documents were published; their classification is an outrageous violation of the Constitution. The main factor there is the political desire of the new administration to make this information public. Besides, the high-quality draft law has been prepared on changes and amendments to the Law of Ukraine “On Information”, for which the draft distinctly stipulates the procedure of the access to information. The draft law was discussed by lawyers, reviewed by international specialists and, in my opinion, should be adopted now.
2. COMPILATION OF A LIST OF EVENTS IN THE HISTORY OF INDEPENDENT UKRAINE IN THE POLITICAL, ECONOMIC, SOCIAL, ECOLOGICAL AND OTHER AREAS, WHICH NEED PUBLIC EXPERTISE.
It is not very difficult to compile a list of such events, but it is more difficult to establish the priority of these events. In particular, cases should be included in the list which can be regarded as political persecutions. Upon compilation of this list, groups will be created which will analyze corresponding events.
3. PREPARATION OF THE DRAFT ON THE MECHANISM OF DISCLOSURE OF FALSIFICATION OF the 2004 PRESIDENTIAL ELECTION.
The mechanism itself should be discussed, and this is a most difficult task.
4. ANALYSIS OF CONSTITUTIONAL REFORM. PREPARATION OF NEW DRAFT.
The KhG is already preparing the specialist analysis of draft No. 1480 with the participation of Western experts. Both our experts and some from the West estimate that such reform may not be adopted. So, we have to prove this to our opponents. It is necessary to point to drawbacks and errors in the Constitution which must be corrected. In my opinion, the idea of creation of the Constitutional commission or assembly, which will prepare the new draft, should be endorsed. This will take approximately one year.
5. FORMULATION OF INTERESTS OF NATIONAL SECURITY AND STUDY OF THE USS ACTIVITIES ON THIS TOPIC.
I assume that a special commission should be created, to include MPs, representatives of public organizations, and lawyers. This commission would consider such questions as informational security and cases instituted by the USS under this pretext, participation of the USS in political persecutions (I think that there would be much evidence and the legitimacy of this evidence should be verified), meddling of the USS into business, etc.
6. ANALYSIS OF ILLEGAL ACTIVITIES OF LAW-ENFORCEMENT AGENCIES
Participation of law-enforcement agencies in business, the case of “turncoats,” use of torture during inquiries and investigation must be analyzed.
7. PREPARATION OF AMENDMENTS TO THE LAW ON THE ODA
As was already mentioned, the scale of secret surveillance in Ukraine is incredible. Its legal basis is flawed and affords many opportunities for abuse. Serious work on the regulation of interception of communications was conducted by the Internet Association of Ukraine, Ukrainian Internet community and the Kharkiv Group for Human Rights Protection. The draft law “On Interception of Communications,” which was presented by MP Lebedivskiy, had been prepared and must be completed and approved. The general law on the ODA should be changed from the standpoint of guaranteeing human rights.
8. ANALYSIS OF THE ROLE OF JUDICIAL POWER AND FORMULATION OF MEASURES FOR STRENGTHENING OF ITS INDEPENDENCE. ANALYSIS OF LEGISLATION REGULATING THE JUDICIAL SYSTEM, PREPARATION OF DRAFT LAWS.
Consideration of this important question exceeds the parameters of this text.
9. REFORM OF CRIMINAL EXECUTIVE SYSTEM.
It is necessary to prepare a draft of changes and amendments to the Criminal Executive Code. It is desirable to investigate information on training special squads about incarcerations in “press houses” and other disgraceful things. The cardinal directions are: Changing the ideology administering punishment, increasing the openness of correctional institutions, and the possibility of independent control. The procedure and practice of pardon of the incarcerated should be changed, too.
10. PREPARATION AND ADOPTION OF THE LAW ON PUBLIC CONTROL.
In 1998, KhG experts prepared the draft model law “On Civic (Public) Control over State Activities”. It should be reasonable to reanimate this draft.
11. RECONSIDERATION OF THE AWARD LIST.
See above. Here, only the goodwill of the new administration is needed, as well as the consent of people respected by the whole of our country, such as Alina Kostenko, Evhen Sverstiuk, Myroslav Martynovych and others, to participate in this task.
12. REHABILITATION OF VICTIMS OF POLITICAL REPRESSION.
The Law of Apri 14 ,l 1991 has never been amended; it is archaic and must be modified. Several drafts have been prepared, and some of them are quite acceptable. It is necessary to adopt the law and to return to the general problem of the crimes of communism against humanity. Today’s youth knows nothing about this tragedy, but we have no right to forget about it.
13. REHABILITATION OF DEPORTED PEOPLES.
The problems of this are obvious and should be solved. Here we also need an informational campaign, distribution of information on deportations, repressions against entire populations, etc.
14. ANALYSIS OF PROBLEMS OF LEGISLATION REGULATING THE INFORMATIONAL SPHERE.
It is advisable to understand whether it is possible to create the informational legislation of Ukraine anew. The operating normative acts are, in my opinion, intolerable.