(Un)Civil Societies Report: January 26, 2004

26 January 2004, Volume 5, Number 3

IN FOCUS

A 'TRUE FRIEND OF UKRAINE' TELLS IT LIKE IT IS... A Ukrainian-born American judge who helped draft Ukraine's first post-Soviet constitution and who was awarded two presidential awards for his help in rebuilding Ukraine is now vocally criticizing the recent ruling of Ukraine's Constitutional Court granting President Leonid Kuchma a third term. The decision enables Kuchma to run in the October presidential elections.

Judge Bohdan Futey, born in Ukraine in 1939, is a federal judge on the U.S. Court of Federal Claims. In an article for "Ukraine Report," a publication of artukraine.com, the judge said that Ukraine's Constitutional Court decision is "unsupportable". The first constitution, passed in 1996, limited the presidential term to two five-year periods. But on 30 December 2003, the Constitutional Court ruled that the limit did not relate to Kuchma's first term, which began in 1994, before the constitution was ratified. Futey believes this was a mistake, made under pressure.

Futey is a member of the District of Columbia Bar Association and the Ukrainian American Bar Association, and has consulted for various programs to promote the rule of law since 1991. He received Ukrainian presidential awards in 1995 and 1999 for his work in helping to reform Ukraine's judicial system. In a ceremony on 8 December 1999, President Kuchma called Judge Futey "a true friend of Ukraine" for his assistance to Ukraine after its independence, "Ukrainian Weekly" reported at the time.

In December 2003, Ukraine's parliament, the Verkhovna Rada, made world news as liberal deputies disrupted a session of the legislative body with sirens and cat-calls, and tampered with voting machines to stall a vote on amendments. The proposed legislation would change the electoral system from one where the president is elected directly by the entire population, to a procedure for election of the chief executive by the parliament. With a majority of Kuchma supporters in the parliament, such radical system-changing legislation would easily be passed, something reformers could not allow to happen.

The pro-presidential majority in parliament and the communists voted in favor of making the changes to the electoral system on 24 December 2003, so that the president would have an abbreviated term and then from 2006 forward, would be appointed by members of parliament. Our Ukraine, the socialists, and the Yuliya Tymoshenko bloc protested the decision to abolish the direct presidential vote.

The extension of Kuchma's terms brought to mind a similar maneuver by President Alyaksandr Lukashenka in neighboring Belarus, who in 1996 manipulated a national referendum on the constitution to secure himself an extension of his term. Former Yugoslav President Slobodan Milosevic also at one time engineered a change in the electoral system to enable the parliament to elect him.

In Belarus, Lukashenka solved the problem of the objections of the Constitutional Court to his unlawful action by dissolving the court and threatening the justices with retaliation. In Ukraine, the judges have evidently been more compliant, say observers, because of a history of intimidation.

"Ukraine stands at the crossroads of either integration and acceptance into the European and international communities, or reversion to a country where the rule of law is selectively applied and undermined for the benefit of those who possess power," writes Judge Fotey in his article.

While praising some of the court's past decisions, which illustrated that it was en route to developing into an independent branch of government, Futey said that the court has violated its own established principles by deciding in favor of the president's term extension. In 1997, the court held that under the Constitutional Agreement in place at the time, parliamentary deputies cannot hold two state positions after 1995, but those elected before then would be excluded. In making this determination, the court looked at the constitutional norm in place at the time the individuals were elected.

Thus, reasoned Fotey, by the same logic, the norm in place at the time President Kuchma was elected should be enforced. "The Constitution adopted in 1996 and prior legislation addressing presidential term limits have consistently limited the President to two terms," he writes, citing the 1978 Constitution of the Ukrainian Soviet Socialist Republic, the 1991 Law on the President, the 1994 Law on Election of the Parliament, and the 1995 Constitutional Agreement, signed between the parliament and President Kuchma, which says, "One and the same person cannot be elected President of Ukraine for more than two terms."

"The applicable law as well as the constitutional norm in place at the time President Kuchma was elected, as well as at the time President Kuchma ran for re-election in 1999, limited the President to two terms. This would have been the inescapable conclusion if the Court had engaged in a straightforward application of its prior rulings. For one reason or another, such an exercise did not take place," writes Futey.

The judge does not speculate about what those reasons may be, but journalists on the scene have written about the types of pressures judges face in Ukraine. In anticipation of the 2004 elections, the government is said to be lining up judges in its favor and weeding out those opposed, the BBC and podobnosti.ua reported, citing a 29 November 2003 article in "Zerkalo Nedeli," "The Wrong Side of the Judge's Gown." The newspaper detailed cases of judges who have experienced persecution for their rulings, and speculates what effect this may have on those called to assess election disputes. Judge Mykola Zamkhovenko is said to have fallen from grace after passing decisions in favor of Yuliya Tymoshenko. Judge Yuriy Vasylenko, who once filed criminal cases against Kuchma, has now been accused of violating his judge's oath. Legal opinion has been divided as to whether he was empowered to bring suit against the president. Loyal judges are also being moved into place in the eventuality that they will have to review appeals about election violations, says "Zerkalo Nedeli."

In another article in "Ukraine Report" published on 19 December 2003, Judge Futey looked at the Constitutional Court's decisions regarding changes in the political system. The court claims that the amendment of the constitution in order to elect the president through parliament does not abolish or restrict human and civil rights and liberties because the people may exercise their power through direct and indirect forms of democracy. Futey characterizes this interpretation as "skewed" and notes that Article 103 of the constitution stipulates that the president is elected by citizens of Ukraine for a five-year term through equal and direct suffrage, and Article 104 states that the president shall take an oath affirming he was elected "by the will of the people."

Futey notes that the concept of the "will of the people" is defined within the Ukrainian Constitution in Article 69 ("the will of the people is exercised through elections, referendum, and other forms of direct democracy") and not Article 5, which says the people can "exercise power directly and through bodies of state power and bodies of local self-government" -- language that was evidently intended to describe the day-to-day workings of various government agencies, and not a clear mandate for the president to be elected by parliament.

...AS UKRAINIAN PARLIAMENT IS THROWN INTO CRISIS OVER ELECTORAL CHANGES. On 15 January, Verkhovna Rada Chairman Volodymyr Lytvyn closed the session early after opposition members blocked the chairman's rostrum and paralyzed the session's work, "Ukrainian Weekly" and local wire services reported on 18 January. The dissidents, mainly from Our Ukraine and the Tymoshenko bloc, charged that their fellow deputies had unlawfully passed legislation. Lytvyn warned that if the opposition continued to block the work of parliament, it would be the "death knell" for the parliamentary system in Ukraine, "Ukrainian Weekly" quoted him as saying.

The president has the right to call for new parliamentary elections if the legislature fails to meet in 30 days but Lytvyn said Kuchma would not dismiss the current parliament. The dissidents held their ground, and vowed to continue demonstrations.

The Ukrainian parliamentary crisis brings to light the way in which the trappings of law and the external features of a legislature can be used by authoritarian rulers to make those who object to the misuse of parliamentary procedure appear to be those breaking the law. Ukrainian state media, as well as official Russian media, portrayed the dissenting deputies -- who believe they are engaging in civil disobedience over matters of democratic principle -- as obstructers of democracy and vandals.

Oleh Zarubinsky, a pro-government deputy and member of the People's Democratic Party, exemplified such a position. "These people, who today call themselves democrats and say that they want a democratic government, did everything to spoil my ability to vote," he said about voting machinery that was deliberately jammed in the legislature. "Only those people who adhere themselves to the procedures and regulations have the right to talk about them. Those who behave like vandals and hooligans -- and anyone watching them, would say they were the deeds of hooligans -- are hooligans. In the same way that you can't be slightly pregnant, you can't be slightly principled," he told RFE/RL on 16 January. Ivan Zayets, an Our Ukraine deputy, explained why his faction resorted to making noise and sabotage of the voting machinery. "This project to change the constitution is extraordinarily damaging," he told RFE/RL. "It's not any kind of reform. It's an attempt to keep this government in the hands of the oligarchs and the mafia and to destroy the Ukrainian nation. And when in parliament I don't have the legal right to defend my position because my rights have been destroyed, because nobody is adhering to the regulations or the constitution, then I will break things and I will do everything I can to prevent this project from succeeding."

His concerns were shared by Senator Ben Nighthorse Campbell, co-chair of the U.S. Congressional Commission on Security and Europe. In a statement delivered to Congress on 20 January, he condemned "a constitutional amendment...designed to ensure that the current, corruption-riddled powers-that-be retain their grip on power, neutralizing the leader of the biggest democratic faction in parliament and Ukraine's most popular politician, Viktor Yushchenko." Campbell noted that popular opinion polls indicated that the overwhelming majority of Ukrainians supported preserving direct presidential elections. In his view, the recent Constitutional Court decisions only called into question the court's independence, and, in the climate of suppression of the media, raised serious questions about how fair the ballot would be in the fall.

Under Ukrainian law, amendments to the constitution have to be approved by "no less than two-thirds of the constitutional composition of the Verkhovna Rada" at its next regular session. That is why the session of the Verkhovna Rada that closed prematurely was so raucous; the deputies had to get in the changes by that session, or they would not affect the October elections.

The current stalemate is not the first time the Ukrainian parliament has been in turmoil. "Ukrainian Weekly" reported in June 1996, for example, that a similar crisis developed over debates on the constitution, when Communists and agrarians wanted to retain the Ukrainian Soviet Constitution, while democrats and others believed they had already managed to pass a basic non-communist draft. A Constitutional Committee appointed by the president eventually resolved the conflicts, and yet some disputes still persist. "Ukrainian state television pre-empted regular programming to show the turmoil in the parliament hall on 28 May [1996], as deputies charged the podium, threatened each other with nasty words, and Communists refused to register and walked out of the hall in order to disrupt the session," "Ukrainian Weekly" reported at the time.

Analysts say Kuchma's legal changes were forced through mainly to thwart Yushchenko, leader of Our Ukraine, the largest faction in parliament. Askold Krushelnycky, writing in "The Independent" on 16 December 2003, also noted another development that has been overlooked in other coverage of the constitutional rulings: the Constitutional Court has also ruled that President Kuchma cannot be prosecuted for crimes committed while in office, putting an end to speculation that he might one day face justice for his alleged involvement in corruption and human rights abuses, including the accusation that he was behind the murder of journalist Heorhiy Gongadze. While thousands of demonstrators have called for the president's resignation, retaliation against them by the government has prevented the kind of mass unrest seen in Georgia recently, where President Eduard Shevardnadze was forced to resign.

Our Ukraine's Oleh Rybachuk, an aide to Yushchenko, has also made the comparison between Kuchma and Milosevic, writes Krushelnycky. He envisions a possible scenario where Kuchma nominates himself as prime minister and reduces the presidency to a ceremonial role.

The opposition's parliamentary civil disobedience follows weeks of disruption of street demonstrations by the government. When Our Ukraine attempted to book a rally in a hall in Donetsk, local officials packed the meeting with anti-Yushchenko demonstrators, says Krushelnycky. Police also blocked demonstrators as they arrived at the airport; the same scenario was repeated in other cities.

The Parliamentary Assembly of the Council of Europe (PACE) has responded to the crisis, sending Hanne Severinsen, the assembly's senior democracy monitor for Ukraine, to Kyiv for talks, RFE/RL reported on 18 January. She said PACE is strongly concerned and that Ukraine was already "on warning" for a 1999 referendum not recognized by PACE. PACE will review the situation on 26 January, and possibly call for an extraordinary debate on Ukraine. Meanwhile, the threat of the disbanding of parliament is hanging over the Verkhovna Rada, although so far officials deny this is being contemplated.

The tampering with the electoral system seems to be motivated by political realities. Kuchma will not make it to the second round of votes in the presidential elections, says UNIAN's analysts in a 16 January wire story, even if he is the only government candidate. Iryna Bekeshyna, a pollster from the Kyiv-based Institute of Sociology, told UNIAN that the president was "extremely unpopular" and "had no prospects" in the coming election. According to her institute's survey, 24.1 percent of respondents would vote for Yushchenko if the election was held now, 4.7 percent for Tymoshenko, and only 2.1 percent for Kuchma.

BELARUS

PACE MEMBERS TURN UP THE HEAT OVER DISAPPEARED BELARUSIANS. A Cypriot parliamentarian who has taken up the issue of the disappearances of public figures in Belarus has made headlines in Minsk and rankled Belarusian government officials, who have stonewalled his inquiry. Christos Pourgourides, a member of the Parliamentary Assembly of the Council of Europe (PACE), will report on "the persecution of the press" in Belarus at the first session of the year, scheduled for 26-30 January, and will continue to follow on his queries about missing politicians and a journalist.

In November 2003, Pourgourides, a member of PACE's legal committee, visited Minsk but was unable to complete his mission. While he had secured an invitation from Uladzimir Kanapleu, head of the National Assembly's delegation to PACE, he did not get approval from high-level officials to meet with Dzmitry Paulichenko, head of the military's special forces (SOBR), and could not delay his departure while awaiting permission, charter97.org reported on 10 November 2003. He also failed to meet with Valery Ihnatovich, charged in March 2002 with the murders of a number of people in Belarus, including Dzmitry Zavadski, a cameraman for ORT, Russia's public television.

Pourgourides was able to meet with Foreign Minister Syarhey Martynau. While Martynau offered cooperation, Pourgourides later told journalists that "the answers I am looking for should be given by other officials, not by the minister." He held talks with Uladzimir Naumau, head of the Interior Ministry, his predecessor, Yuriy Savakou, and Prosecutor-General Viktar Sheiman, as well as with Kanapleu. Pourgourides did not comment on the content of the meeting with the law-enforcement officials, who would presumably have a lot more to say about the cases than the foreign minister. Zinaida Hanchar, the wife of one of the disappeared, Viktar Hanchar, said that the information Pourgourides received was "very controversial."

Pougourides met twice with family members of the disappeared, who have campaigned hard for the last two years for some kind of world body to form a commission to investigate the cases impartially or at least to pressure the Belarusian government to investigate them. In 2000, the UN's Committee Against Torture was sufficiently concerned about allegations of torture and murders of public figures that it urged that a national commission be formed of law-enforcers and credible and independent lawyers to review the cases. The Belarusian government ignored the recommendation and provided only brief replies to the UN's Working Group on Enforced or Involuntary Disappearances. Nongovernmental groups who have attempted to collect testimony in Belarus have themselves been harassed. Lawyer Oleh Volchek's organization, Public Legal Assistance, was closed down last year along with other NGOs that monitored human rights.

In 2002, the wives of the disappeared, as well as those who had died in suspicious circumstances or had been jailed, appealed to PACE to urge the Belarusian authorities into allowing an independent investigation with the participation of international experts into the death of politician Henadz Karpenka and the disappearances of opposition politicians Yury Zakharanka and Viktar Hanchar, as well as those of businessman Anatol Krasouski and journalist Dzmitry Zavadski, charter97.org reported on 22 January 2002. Anatol Lyabedzka, head of the United Civic Party, met with his counterparts in PACE's Liberal, Democratic, and Reformers' Group in Strasbourg to appeal for an investigation. Eventually, a parliamentary committee was formed, chaired by Sergei Kovalev, a former political prisoner and parliamentarian in Russia until he lost his seat along with other liberals in the December 2003 elections.

In April 2003, Pougourides and his fellow committee members were able to table a motion in PACE calling on Belarus to cooperate and provide information on the cases of the disappeared. In November 2003, when he was still on the PACE commission, Kovalev attempted to gain permission to travel to Belarus, but was denied a visa, as were other members of his committee except for Pourgrouides, who was officially invited by the parliament.

Earlier this month, Pourgourides told RFE/RL's Belarusian Service that he originally gave the Belarusian authorities time to answer his memorandum on the disappeared, which was translated into Belarusian and broadcast by RFE/RL. Pourgourides told reporters that he believed he had a "bombshell," charter97.org reported on 13 January. "There is strong evidence that the Belarusian authorities are involved in abductions of people and concealment of these cases," he told reporters, adding that more than enough proof was available to support the charges. Lawyers and family members have been able to gather testimony from a number of officials close to the cases, and two Belarusian prosecutors, who fled to the West, were able to provide information about documents they believed were deliberately removed from files.

RFE/RL's Belarusian Service said the press offices of the Interior Ministry and the Prosecutor-General's Office had not received Pourgourides' memo on the disappeared and had no comment. Viktar Sheiman's press secretary, Yuri Azaryonak, told reporters, "I do not think that such a respectable man as Viktar Uladimeravich [Sheiman] would comment on some statement of Pourgourides, who has come for three days, pronounced a conviction, and left. I do not think so."

On 15 January, at the urgent request of journalists, Uladzimir Navumau held a press conference at the Interior Ministry. He was asked to comment on Pourgourides' report, and the issue of possible involvement of the highest-ranking Belarusian officials in the disappearances. Navumau denied any involvement and said that he had answered all of Pourgourides' questions, and therefore could not understand why he was making such conclusions, charter 97.org reported the same day. More recently, the charter97.org site was hacked into and taken offline.

As PACE convenes next week, some censure of Belarus appears to be in the offing, but it is hard to know if the matter will move from the concern of one member and his committee, on to the plenary and then to influence the actions of European governments.

Europeans have been divided about how to handle Belarus, especially given the heavy involvement of Russia in the affairs of its close neighbor. In January 2002, PACE President Peter Schieder said, "Belarus remains a problem. On the one hand, the attitude of the presidential regime has not changed and remains totally unacceptable in terms of democratic and human rights standards. On the other hand, isolation does little to change the status quo. The assembly will have to pursue its delicate diplomatic balancing act, between support for progressive forces in Belarus and the need to avoid condoning the dictatorial attitude of the present regime."

The support for the "progressive forces" did not extend to seating any members of the disbanded parliament in PACE, but despite pressure from Belarus and Russia, so far PACE has held off on restoring Belarus's guest status. Members of the president-controlled National Assembly have been invited as guests to PACE sessions, as have opposition figures.

PACE has proceeded gingerly with the commission to investigate the cases of the disappeared. In keeping with its policy of "engagement" verses "isolation," Wolfgang Berendt, then PACE rapporteur on Belarus, proposed to Navumau that a group be established to review the cases (See "RFE/RL (Un)Civil Societies," 19 June 2002), but he was reluctant, although Ural Latypau, the foreign minister, was able to convey more goodwill. Nothing came of the talks.

In October 2002, Western hopes for engagement and belief in the possibilities of the nominal parliament were stirred when the National Assembly said it was considering a proposal it had received from the Belarusian Helsinki Committee and the Public Legal Aid to review the cases of the disappeared. The chair of the commission diluted the efficacy of the gesture by commenting that "as true patriots of our motherland," the deputies were worried about all disappearances of any kind in Belarus. Officials have often sought to deflect concern about the political abductions by commenting on statistics for all missing persons in Belarus.

A liberal deputy, Viktar Frolov, placed a motion on the agenda to establish an "interim commission" in the House of Representatives to study whether the investigation of the disappearances had complied with the law -- a more narrow task then actually probing for the whereabouts of the disappeared. The motion failed because some parliamentary members said that if there were true division of powers, the parliament should not interfere in law-enforcement bodies' handling of a criminal case. That meant no public hearings were held. Finally, Frolov managed to persuade Prosecutor-General Sheiman to oversee an official parliamentary inquiry, but it went nowhere.

In December 2003, after presenting his report on Belarus to PACE's legal committee, Pourgourides issued a very strong report publicly, calling for the resignation of Sheiman and sanctions against the Belarusian leadership. It was among the strongest international actions against Belarus since 1996, when Lukashenka took power. His call for Sheiman's resignation went beyond the kind of mild reprobations that various European bodies had made about the situation in Belarus. While he cautioned that he himself could not carry out an independent detective-style investigation, he did attempt to examine if an independent investigation had been held. In his preliminary report, Pourgourides noted the testimony of Colonel Alkaev, who has stated that the gun used to assassinate the disappeared persons was in fact a pistol officially used for the execution of the death penalty in Belarus.

Pougourides made a number of recommendations for how the government could credibly proceed. He urged that an independent investigation go forward after Sheiman had resigned, since he has been accused of involvement in the disappearances in his previous capacity as national security chief. He also urged that Sheiman himself be investigated, along with the current sports minister (former interior minister) and a high-ranking security police officer, all of whom he said were accused of obstructing justice and falsifying testimony to cover up for those guilty of the alleged abductions. He also urged that the parliament call for the resignation of certain high officials to make possible a truly independent commission.

Pougourides also called on courts of other countries -- with laws establishing jurisdiction over international cases of serious human rights violations (such as the United States and Belgium) -- to proceed with cases against high-ranking officials for possible murder. The officials would have to travel abroad in order to be served court papers in such an event, and such a possibility appears unlikely. If court proceedings did begin abroad and if any of the victims' relatives filed suit, their lawyers would have to demonstrate a chain of command between top officials and those who carried out abductions and murders. That could be a tall order.

There is some indication that the international community's attitude toward Belarus, filled with more goodwill in 2002, may have considerably chilled two years later, as numerous demonstrators and journalists have been subject to detention or internal exile, independent newspapers have been closed, and NGOs declared illegal and forced to leave their offices. When the PACE plenary reviews Pougourides' report on 26-30 January, it might defer action if Russia and its allies decide to let Belarus off the hook. But the moment may be ripe for concerted international action on a country once dubbed by an American ambassador "a black hole in Europe" -- a black hole through which some people have disappeared.