Yevhen Zakharov: Definition of categories pertaining to political persecution
Following the 2010 presidential elections, the new administration steadily moved towards political harassment of their opponents and critics. A lot has been reported about this by the media, Ukrainian and foreign specialists. Therefore the legal and human rights communities need to establish a definition for the categories “prisoner of conscience”, “political prisoner”, “politically motivated persecution” in today’s Ukraine/’ We will be guided in this by the experience of Amnesty International and the Soviet human rights movement of the 1960s to 1980s which defined the above-mentioned concepts and which received further development in numerous documents of the Council of Europe, OSCE and other international organizations.
Generalizing international legal practice while taking into account Ukrainian social and political reality and the experience of the Soviet and in particular Ukrainian human rights movement, Ukrainian history, and taking as a premise the categorical rejection of violence as a means for upholding ones rights and interests, for political or social protest, we propose the following definitions.
Persecution can be based on the law when criminal proceedings are initiated against a person (or their rights are restricted in connection with the initiating of a criminal investigation over a crime), or coercive measures of a medical nature, including psychiatric, are used against a person without grounds; or when a person is accused of committing an administrative offence; or a person becomes the object of civil or economic legal proceedings. The persecution can be entirely unlawful. This can involve, for example, intimidation via prophylactic talks; threats of dismissal from ones job or expulsion from an academic institution; being deprived of ones work and legal income; unlawful actions by the law enforcement agencies (beating, unlawful gathering of information about a person, unlawful surveillance, detentions, searches, etc); obstruction in circulating information; being forced to join a certain political party; being forced to take part in measures of a particular political party, and so forth. These actions may be carried out both by public officials, or by private groups or individuals with the authorities tolerating such actions.
The persecution is politically motivated if the actions of the State bodies and their officials are based on a) illegitimate considerations of a socio-political nature or b) by actions of the individual persecuted in defending citizens’ rights, freedoms and legitimate interests.
We propose using the definition first presented by Sergei Kovalev, well-known human rights defender and first Human Rights Ombudsperson of the Russian Federation, himself a former political prisoner. According to this we deem a political prisoner any person imprisoned where a considerable and reliably assessed role in their criminal or administrative proceedings can be attributed to the regime’s political motives – and only such a prisoner. It is of no significance whether it is specifically political causes that prompted the actions which the person is accused of as a crime or offence; what is important is only the presence of political interest of the regime in the result of the case. Since in the application of the law assessments and judgements beyond the framework of the law are unacceptable on principle, political motivation in court proceedings may result in procedural or material infringements such as:
elements of falsification in the charge;
unwarrantedly severe preventive measures or punishment;
unlawful sentences or rulings regarding administrative offences;
bias of the court in evaluating the evidence presented by the defence and the prosecution;
various restrictions regarding the possibility of defending oneself, including with the help of defence counsel;
arbitrariness in choice of evidence, ignoring obvious facts;
use of norms of the law irrelevant to the deed committed;
selective (discriminatory) nature of court prosecution compared to analogous cases involving others.
We consider it to be without question that full removal must be demanded of any political motivation in the sphere of justice, regardless of the gravity and consequences of the crimes.
It should be noted that besides politically motivated discrimination against those whom the regime deems to be their opponents, it sometimes resorts to persecution of its supporters or those who implement its repressive decisions. This is as a result of internal conflict or in order to mask selective repression. Such persecution is also politically motivated and just as unacceptable.
We propose considering as prisoners of conscience those who are deprived of their liberty on consciously unlawful, from the point of view of international standards, grounds or on unwarranted charges in connection with:
their convictions or public expression, civic or political activity of a non-violent nature which does not demand discrimination against any others;
looking for, retaining or circulating open or publicly important information;
refusing to wear a military uniform or take part in acts of violence due to religious or other convictions.
People who resort to violence or propagate violence and enmity are not considered prisoners of conscience.
For comparison, the Amnesty International definition states that a prisoner of conscience is a person deprived of his or her liberty solely for peacefully expressing their political, religious or scientific views.
The author cites analogous definitions from Council of Europe experts.
Burden of proof
The assumption that a person is a “political prisoner” should be confirmed prima facie by evidence, following which the State depriving a person of liberty should prove that the imprisonment is fully in compliance with the requirements of the European Convention on Human Rights as interpreted by the European Court of Human Rights according to the merits of the case; that the requirements of proportionality and non-discrimination have been observed and that deprivation of liberty was the result of a just procedural review.
Based on the above definitions, one can draw the following conclusions:
There are at present no prisoners of conscience in Ukraine. There are however a fairly large number of people who have been persecuted for political motives. These are participants in protests who are being intimidated in various ways, sometimes connected with violence – business entrepreneurs, students, members of civic organizations, political parties, trade unions, etc; journalists and civic activists with whom the MoI or SBU [Security Service] have held prophylactic talks, or in relation to whom there has been demonstrative surveillance; staff of public sector institutions who, under threat of dismissal, have been forced to join parties, take part in rallies, etc.
In our opinion, the criminal cases initiated against the participants of the Tax Code Protest, the members of the organizations Tryzub and VO Svoboda, as well as former high-ranking officials – Yury Lutsenko and Yevhen Korniychuk – should be considered political persecution. All of the accused in these criminal cases who have been deprived of their liberty are political prisoners. This conclusion follows from an analysis of the rulings regarding choice of preventive measure and the circumstances of their arrest and remand in custody. The former Economy Minister Bohdan Danylyshyn who has received political asylum in the Czech Republic was a political prisoner. One can say with a great degree of certainty that political persecution is involved in the cases of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the criminal investigation.
The criminal cases against the Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman and the Vinnytsa trade union activist Andriy Bondarenko must also be considered politically motivated. The political grounds are indisputable for the reinstatement of the old criminal cases against members of the national organization UNA-UNSO regarding the events of 9 March 201 (all the accused have already served sentences except the National Deputy Andriy Shkil) and the Head of the Secretariat of the Mejlis of the Crimean Tatar People Zayir Smerdlyaev (he is charged with taking part in mass riots and resisting the police during a rally of the Crimean Tatars on 22 June 2006).
Political persecution was also involved in the court rulings in Kharkiv regarding administrative arrest and fines against those protesting against the felling of trees in Gorky Park in May and June 2010 under Article 185 of the Code of Administrative Offences, supposedly for flagrantly disobeying the lawful instructions of the police. Two young people from Kharkiv, imprisoned for 15 days, were declared prisoners of conscience by Amnesty International, the first time in 6 years (the only such case prior to that in 20 years of independence had been in 2004). Virtually all civic activists who received administrative punishments under Articles 185 and or 185-1 of the Code of Administrative Offences (infringing the procedure for organizing a peaceful gathering) after holding a peaceful event can a priori be considered victims of political persecution. To be certain each such case should be viewed in isolation.
The list here of political persecution in no way claims to be comprehensive. It should be noted that a technique is often applied whereby the authorities persecute people who are not opponents of the regime as such but whom they consider aligned with their opponents (for example, people who from the point of view of the authorities can provide, provide or have provided, financial, organizational or technical support to their opponents). People are sometimes also persecuted in order to receive information or grounds for persecuted the “necessary” person. Then the scale of persecution becomes wider and it is difficult to define the specifically political grounds for such persecution since there may be no link whatsoever between the persecution and political views of the victim, however this is indirectly linked with the political views of the “necessary” person and the aim of persecuting the latter. Examples can be seen in the course of events around the former Prime Minister Yulia Tymoshenko and the current Head of the Supreme Court, Vasyl Onopenko.