Doc. 8945

23 January 2001

Freedom of expression and the functioning of parliamentary democracy in Ukraine

Report

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

Rapporteurs: Ms Hanne Severinsen, Denmark, Liberal, Democratic and Reformers’ Group and Ms Renate Wohlwend, Liechtenstein, Group of the European People’s Party

Summary

The Assembly is deeply concerned by the intimidation, repeated aggression and murders of journalists in Ukraine and the frequent abuse of power by the Ukrainian executive authorities in respect of freedom of expression. The Gongadze case is a test for the freedom of the media and the functioning of parliamentary democracy in Ukraine. Several actions should be taken in order to clarify this matter.

I.        Draft resolution

1. The Assembly is deeply concerned by the intimidation, repeated aggression and murders of journalists in Ukraine and the frequent abuse of power by the Ukrainian executive authorities in respect of freedom of expression.

2. The measures taken by the Ukrainian authorities and the Verkhovna Rada (parliament) to investigate the disappearance of the journalist Heorhiy Gongadze, and their efforts to do justice to all parties involved, should be considered as a test for the freedom of expression and the functioning of parliamentary democracy in Ukraine. The different results of the investigations conducted by the General Prosecutor’s office and the ad hoc Committee of the Verkhovna Rada have led to a crisis of confidence between the executive and the parliament.

3. Allegations involving the Ukrainian authorities in the disappearance of Mr Gongadze may have very serious consequences in the functioning of Ukrainian institutions. It is therefore of utmost importance to establish the authenticity of the evidence on which these allegations are based – the audio-tapes provided by Mr Melnychenko, a former member of the Security Service of the President of Ukraine.

4. The Assembly notes that on 16 January 2001 the Verkhovna Rada organised a parliamentary hearing on the problems related to the freedom of expression and it welcomes the latter’s activities to further the freedom of the press and mass media in Ukraine.

5. The Assembly calls on the relevant Ukrainian authorities:

i. to establish the time and the exact conditions of death of the corpse found near Tarascha;

ii. to conduct an expeditious, full and transparent investigation as regards the disappearance of Mr Gongadze, and to make known the results of this investigation as quickly as possible;

iii. to establish the exact conditions of Mr Gongadze’s death, identify its reasons, and bring to justice those guilty of that death;

iv. to respect the rights of the victim’s relatives, including their right to be the aggrieved side in the case of Mr Gongadze’s death.

6. The Assembly considers that if a request is issued by the Verkhovna Rada of Ukraine for assistance, the Council of Europe should arrange for:

i. an independent examination to establish the authenticity of the originals of the above-mentioned audio-tapes;

ii. an independent examination to establish the exact time and the reasons of death of the corpse found near Tarascha, including a new DNA expertise of that body;

7. The Assembly also considers that the results of these examinations should be published.

II.        Draft recommendation

1. The Assembly refers to its Resolution … (2001) on freedom of expression and the functioning of parliamentary democracy in Ukraine and recommends to the Committee of Ministers:

i. to call on the Ukrainian authorities to inform it on the results of the investigation in the disappearance of the journalist Heorhiy Gongadze as soon as possible;

ii. provided a request is issued by the Verkhovna Rada of Ukraine:

iii. to ask the governments of the member States of the Council of Europe not to extradite Mr Melnychenko, a former member of the Security Service of the President of Ukraine, against his will to Ukraine, if such a request by the Ukrainian authorities is issued.

III.        Explanatory memorandum by the rapporteurs

A. Introduction

1. At its meeting on 18 December 2000 in Paris, the Committee on Legal Affairs and Human Rights held an exchange of views on the latest developments in Ukraine, as regards the threats to freedom of expression and the functioning of parliamentary democracy, and it decided to request a debate under urgent procedure on these issues during the January 2001 part-session of the Parliamentary Assembly. This request will be submitted to the Bureau of the Assembly at its next meeting on 22 January 2001.

2. On 19 December 2000, the Committee on the honouring of obligations and commitments by Member States of the Council of Europe (Monitoring Committee) was informed of the above-mentioned request, and following a discussion on the current situation in Ukraine, it decided: (i) to support the request of the Committee on Legal Affairs and Human Rights; (ii) to express its readiness to present a report to the Assembly during its January 2001 part-session which could serve as a basis for the urgent debate, if the Bureau would so decide; and (iii) to authorise the co-rapporteurs (Ms H. Severinsen and Ms R. Wohlwend) to make, in this context, a fact-finding visit to Ukraine.

3. Following the decision of the Committee, the Co-rapporteurs made a fact-finding visit to Ukraine on 10 – 12 January 2001, and are grateful to the Ukrainian authorities and parliamentary delegation to the Assembly for their co-operation (the programme of the visit is appended). All these discussions and events have fed into the present report.

B. Background: the functioning of parliamentary democracy in Ukraine

4. Since Ukraine’s accession to the Council of Europe in November 1995, three reports were produced on the honoring of its obligations and commitments. The third one, doc. As/Mon (2000) 26 was approved by the Monitoring Committee and transmitted to the Ukrainian delegation on 19 September 2000 for comments within three months. Until now, these comments have not reached the Co-rapporteurs.

5. Over the past two years, Ukraine has continued to make progress on a number of basic freedoms and respect for human rights, including the right of peaceful assembly and association, freedom of religion.

6. However, problems persist in the enactment of enabling legislation to support constitutional guarantees. In January 1999, the Parliamentary Assembly in its Resolution 1179 expressed its deep concern about the slow pace at which Ukraine is fulfilling its remaining obligations and commitments as a member of the Council of Europe, in particular in adopting: a framework act on the legal policy for the protection of human rights, a framework act on legal and judicial reforms, a new criminal code, a new civil code, a new law on political parties, the European Charter for Regional or Minority Languages and Protocol 6 of the European Convention of Human Rights abolishing the death penalty.

7. In June 1999, in its Resolution 1194 the Assembly decided that unless substantial progress has taken place, it would be appropriate to start procedures aiming at suspending some of the rights of the Ukrainian parliamentary delegation. Since then, the Verkhovna Rada has adopted a new law on political parties (although it has not yet been ratified by the President because it had been referred to the Constitutional Court) and ratified the European Charter for Regional or Minority Languages. In February 2000, the Verkhovna Rada also voted to abolish the death penalty from the criminal code, thus resolving one of the key issues threatening Ukraine’s membership in the Assembly.

8. In November 1999, President Kuchma was re-elected in the second round with a decisive majority of votes over his opponent, Petro Symonenko of the Communist Party. In this respect, it is worth recalling that the Ad Hoc Committee of the Bureau of the Assembly to observe the presidential elections in Ukraine characterized the election campaign as “highly questionable” and it concluded: “now that the Presidential election is over, the least the international community can expect is a vastly overdue sense of responsibility on both sides of the hitherto bitterly divided leadership of the State, not only in the Executive but in Parliament. If this transpires, there could be quick positive change. There should be no intrinsic political difficulty for Ukraine to clarify, rationalize and reform its overall legal framework for elections and the proper functioning of the media, including proper procedures for handling complaints”.

9. Following the Verkhovna Rada’s refusal to reappoint the existing premier (Valery Pustovoitenko), Viktor Yushchenko, the former chairman of the National Bank of Ukraine, was approved as the new prime minister in December 1999. Highly regarded both domestically and abroad for his work at the National Bank, Mr Yushchenko has declared his commitment to reversing the political stalemate.

10. In the Verkhovna Rada, eleven political factions from the centre-right joined together to form a majority in support of President Kuchma and the new government. With strong electoral backing, a reform-minded government and a parliamentary majority, President Kuchma set out to wrest control of the Verkhovna Rada from the leftist parties, and to restructure the balance of power between the parliament and the president. Nevertheless, the Verkhovna Rada majority has already proved fragile in the face of the new government’s first legislative initiatives. In spite of the new possibilities of cooperation between the government and the newly formed majority, President Kuchma continued to push for a national referendum on 16 April 2000 designed to introduce institutional reforms.

11. The Co-rapporteurs visited Ukraine on 16-19 February 2000, to examine in particular the reform of institutions in the country. This report (Doc. 8666) led to adoption of Recommendation 1451 (2000), in which the Assembly expressed “its deep concern as regards the so-called ‘referendum’ on reform of the institutions scheduled for 16 April 2000”.

12. The April 2000 referendum sought a vote of no-confidence in the current Verkhovna Rada and constitutional amendments to reduce the number of deputies (from 450 to 300), to create an upper chamber in order to increase presidential powers to dissolve the Verkhovna Rada, and to abolish the deputies’ immunity from prosecution. Such changes would significantly increase the President’s powers over the parliament. After the Constitutional Court ruled against the posing of two other questions in the Referendum, it was duly held and the result declared overwhelmingly in favour of President Kuchma’s objectives. It is uncertain, however, how quickly the “will of the people” will secure law through adoption of its recommendation by the Verkhovna Rada.

13. The referendum thus raised the possibility of a broad constitutional crisis. It has also drawn international criticism, not only from the Parliamentary Assembly, but also from the Venice Commission.

14. Although a first reading of Mr Kuchma's proposal to increase presidential powers through constitutional amendments was passed by a simple parliamentary majority in July 2000, it remains extremely unclear whether Mr Kuchma can muster the two-thirds support needed in a second reading, which will require some support from left-wing deputies who boycotted the earlier vote.

15. The Co-rapporteurs were told that, on balance, it appeared likely that parliament could still approve at least partial implementation of the bill - given the pressure that Mr Kuchma and his allies can bring to bear on deputies and the scope that exists in Ukrainian politics for “backroom deals”. Although promises such as greater tax concessions for sectors favoured by left-wing deputies, or a compromise agreement to slow down the implementation of the amendments, might secure the necessary left-wing votes, Mr Kuchma's hopes for a two-thirds majority also risk being thwarted by divisions among centre-right groups in parliament.

16. The Co-rapporteurs believe that if the results are implemented, the referendum will have a major impact on the structure of the Ukrainian political system, strengthening substantially the powers of the President and breaking the grip of the opposition parties on the parliament. Yet the implementation of the referendum itself runs the risk of further polarising the political system. Given the weak political support for it, it could break up the fragile eleven party coalition supporting the current government, leading yet again to a divided government at a time when urgent reforms will require parliamentary support. It could also strengthen the unity and resolve of anti-Kuchma forces on the left. More importantly, it could raise questions about the legitimacy of any new political arrangements that would be a source of considerable political uncertainty in the future.

17. The Co-rapporteurs believe that the progress of political reform in Ukraine has been impeded by weaknesses in the structure of governance and national policy-making. Underlying these weaknesses are strong divisions within the country across a number of different dimensions: nationalism, statehood, East-West divisions, and relations with Russia and the CIS. The attitudes of different groups towards market-oriented reforms have also been closely interwoven with these existing cleavages making these reforms even more politically contentious than they have been in neighbouring countries.

18. The Co-rapporteurs also think that the political institutions designed to mediate these cleavages and conflicts have not been effective. The division of powers between the President and the Verkhovna Rada is still the subject of much debate and discord. The Verkhovna Rada itself is divided into a large number of shifting political factions split on a number of key political and economic issues. Political parties are relatively weak and largely oriented towards supporting individual political personalities. This has led to protracted policy stalemate on economic and political reform. All the same, the last year has seen some improvements in the economic situation.

C. Threats to the freedom of expression: the Gongadze case

19. The Co-rapporteurs believe that many of the existing problems in Ukraine are illustrated most clearly by the present crisis over the disappearance of the Internet journalist Heorhiy Gongadze.

20. Mr Gongadze specialized in investigating corruption for the Internet newspaper he edited, "Ukrainska Pravda." The journalist's internet website (www.pravda.com.ua) has been harshly critical of the President and his entourage. He disappeared on 16 September 2000, on his way home from work in Kyiv. On 3 November 2000, the discovery of a decapitated and mutilated body in a forest in Tarascha (near Kyiv) was reported by Ukrainska Pravda. (Although fellow journalists and his wife believed that the corpse was Gongadze’s, authorities have only announced the results of their examination on 10 January 2001.)

21. The disappearance of Mr Gongadze has provoked a strong public outcry in the country. Fellow journalists have demonstrated real solidarity in the search of Mr Gongadze, and the Rada has created a special ad hoc Committee to investigate his disappearance.

22. On 28 November 2000, the body still officially not identified, Socialist party leader, Mr Oleksandr Moroz, produced audio tapes before the Rada which had allegedly been recorded in Mr Kuchma's office and directly implicated the President in the Gongadze affair. The result of this revelation has been a swift and sharp decline in the authority and credibility of many of Ukraine’s top officials.

23. The second stage of the Moroz revelations took place on 12 December 2000, when the ad hoc investigation Committee managed to show Rada deputies a video-taped testimony in support of the accusations provided by Mr Melnychenko, the former State Security (SBU) officer who claims to have taped the conversations in the President’s office. In this context, the Co-rapporteurs were informed by Mr Karmazin, Chairman of the Committee of the Verkhovna Rada on issues of combating organised crime and corruption, that on 14 December 2000 the Rada passed two resolutions calling on the President to dismiss Interior Minister, Mr Kravchenko, the Head of SBU, Mr Derkach and Mr Solovkov, the Head of the Customs Service.1

24. Ukrainian President Leonid Kuchma has vigorously denied any role in the affair and says the allegations are "totally groundless", and they represent an attempt to blackmail him. Mr Kuchma has accused "big money and professionals" in his own country of masterminding a spreading scandal linking him to the disappearance of a leading journalist. (Previously, Mr Kuchma has said the furore over Mr Gongadze’s disappearance was a large-scale provocation staged by forces outside Ukraine which sought to tip the nation into chaos.)

25. At its 21 December 2000 session, the Rada instructed the Prosecutor General, Mr Potebenko to send an investigator abroad to officially question Mr Melnychenko, because his videotaped testimony does not have any legal force. However, Mr Potebenko insisted that Mr Melnychenko should return to Ukraine for questioning. At the same time, the Rada addressed an appeal to international organisations (OSCE and the Council of Europe) to conduct an independent investigation of the audio-tapes connected to the disappearance of Mr Gongadze, and for the identification of the body found in Tarascha district of Kyiv region.

26. On 5 January 2001, the Prosecutor General charged Mr Melnychenko in absentia with libel and forgery because he acted “deliberately to make public obviously untrue information which discredits other persons… in connection to the case of missing journalist Georgy Gongadze… accusing them in the grave crime.”

27. At a mass demonstration in Kyiv at the beginning of January 2001, close to 5,000 protesters showed up, including representatives of the Communist, Rukh, Christian Democrat and Yabloko parliamentary groups. This wide range of usually adversarial parties has been dismissed by the authorities as representing only the political extremes. (It is true, however, that the Socialists' allies in the protest also comprised UNA-UNSO, an extreme right-wing movement with its strongest following in West Ukraine.) The Co-rapporteurs were also told that although the Gongadze case had sparked the demonstrations, it was providing an opportunity for the airing of older grievances against President Kuchma and his government.

28. After the mass march, which converged on Parliament and the President's offices nearby, Mr Kuchma met with the movement's leaders. According to them, the president agreed to consider the resignation of Interior Minister Yury Kravchenko, SBU Chief Leonid Derkach and Yury Solovkov, the Head of the Customs Service, as requested by the Parliament.

29. Of course, the Co-rapporteurs do not wish to intervene in the present public row over the possible involvement of the highest state authorities in Mr Gongadze's disappearance. But they do deplore the fact that the authorities’ ostentatious efforts to investigate the case seem incompetent, unimaginative and heavy-handed — repeatedly interrogating Mr Gongadze’s colleagues, for example, and suggesting, rather implausibly, that he might have run away simply to escape his debts. The Co-rapporteurs were also told by Ukrainian media representatives that the disappearance chimes with the Ukrainian authorities’ generally unsympathetic attitude to the media.

30. In his speech on the investigation of the Gongadze case in the Ukrainian parliament on 10 January, the Prosecutor General said there were not enough reasons to draw a "categorical" conclusion that the body found in Tarascha district, Kyiv region, belongs to missing journalist Heorhiy Gongadze. However, on the basis of the DNA examination, provided by Russian forensic experts, Mr Potebenko also added that the probability that Mrs Lesia Gongadze is the mother of the unidentified man amounts to no less than 99.6%. Therefore the Co-rapporteurs are puzzled to be told by Mr Potebenko that the latter’s office is still working under the assumption that “Mr Gongadze is alive”.

31. The Co-rapporteurs were told by Mr Gongadze's mother that she demanded to be recognized the aggrieved side in the case of her son’s disappearance. She also urged the general prosecutor's office to identify the date of murder and its reasons. She said that she has recently opened a case to sue Prosecutor General Mykhailo Potebenko.

32. The ad-hoc investigating Committee of the Rada informed the Co-rapporteurs of various irregularities of the investigation conducted by the Prosecutor General’s office (some members accused regional prosecutors of eliminating evidence linked to the case).2

33. Mr Lavrinovich, Chairman of the ad-hoc investigating Committee and other members reiterated the request that the Council of Europe should assist in an independent analysis of the original Melnychenko tapes. The Co-rapporteurs were informed that at present a copy of these tapes is being analysed by the International Press Institute in Vienna. They informed the ad-hoc Committee of the Rada that they expect an official request in this respect.

34. In this context the Ministry of Justice of Ukraine provided the Co-rapporteurs with the official statement of the Director of the Kyiv Research Institute of Forensic Engineering according to which “it is impossible to establish whether the phrases on the examined phonograms had been pronounced by citizens Kuchma, Kravchenko, Lytvyn and Derkach because of the editing, cutting and adding separate parts of the words, sounds as well as low quality of the records under examination. It does not allow to identify the sufficient number of features for scientific forensic identification of the person”.

D.       Concluding remarks

35. The Co-rapporteurs are deeply concerned by the repeated aggression, intimidation and murders of journalists in Ukraine. Obviously, there can be no freedom of the press in an atmosphere of terror and fear. Therefore they consider the Gongadze case as a test for the freedom of the media and the functioning of parliamentary democracy in Ukraine. Following their fact-finding visit, they reconfirm the request that these issues should be discussed by the Assembly without delay.

36. The Co-rapporteurs believe that Ukrainian interests will be best served by an expeditious and transparent investigation of this matter. They believe that government authorities should do this full investigation and do it as quickly as possible. The law enforcing authorities should also display a greater deal of compassion and understanding for the victim’s relatives.

37. The Co-rapporteurs suggest that once the official request of the ad-hoc investigating Committee of the Rada is available, the Council of Europe should assist in an independent examination of the original tapes in question.

38. The Co-rapporteurs very much agree with those who had compared the Gongadze case to the Dreyfus affair that had shaken France at the end of the 19th century. As in that historic case, they believe and very much hope that this tragic event will lead to reinforce the rule of law in Ukraine.

APPENDIX I

Programme of the visit to Ukraine by the Rapporteurs of the Parliamentary Assembly

10-12 January 2001

10 January 2001

early afternoon       Arrival of the delegation

4.00 pm       Meeting with members of the Ad Hoc Investigation Committee of the Verkhovna Rada

5.30 pm       Meeting with Mr O. Zinchenko, Chairman of the Committee of the Verkhovna Rada on issues of freedom of expression and information, and Mr I. Dratch, Head of the State Committee of Ukraine on issues of informational politics, television and radio

7.00 pm       Working dinner with Mr Jens Holch, Counsellor, Royal Danish Embassy, and Ms Gundega Pumpure, Second Secretary, Chargé d’Affaires a.i. of the Embassy of the Republic of Latvia

11 January 2001

9.00 am       Meeting with Mr I. Pliusch, Speaker of the Verkhovna Rada

9.45 am       Meeting with the representatives of the mass media of Ukraine

11.00 am       Meeting with Mrs S. Stanik, Minister of Justice of Ukraine

12.15 pm       Meeting with Mr Yu. Kravchenko, Minister of Interior

1.30 pm       Lunch

2.30 pm       Meeting with the Leaders of Deputies’ Factions and Groups of the Verkhnova Rada

4.15 pm       Meeting with Mr V. Lisitsky, Governmental Secretary of the Cabinet of Ministers of Ukraine

5.15 pm       Meeting with Mr A. Zlenko, Minister of Foreign Affairs

6.30 pm       Meeting with the members of the Permanent Delegation of the Verkhovna Rada of Ukraine to the Parliamentary Assembly of the Council of Europe

7.30 pm       Dinner hosted by the Committee of the Verkhovna Rada of Ukraine for Foreign Affairs and the Permanent Delegation of the Verkhovna Rada of Ukraine to the Parliamentary Assembly of the Council of Europe

9.30 pm        Meeting with the mother of the late Mr Gongadze, Ms Lesia Gongadze

12 January 2001

8.15 am       Working breakfast with Ms Maeve Dwyer, Second Secretary, Embassy of the United States of America

9.00 am       Meeting at the Verkhovna Rada with

10.15 am       Meeting with Mr A. Orel and Mr Pidpalov, Deputy Heads of Administration of the President of Ukraine

11.30 am       Meeting with Mr M. Potebenko, Prosecutor General of Ukraine

12.30 pm       Departure to Boryspil Airport

Reporting committee: Committee on the Honouring of Obligations and Commitments by Members States of the Council of Europe.

Reference to committee: Reference No. 2563 of 22 January 2001.

Draft resolution and draft recommendation adopted by the committee on 23 January 2001.

Members of the committee: MM. Mota Amaral (Chair), Sinka, Ms Severinsen, Ms Durrieu (Vice-Chairpersons), Mr Agramunt, Ms Akgönenç, MM. Arzilli, Atkinson, Attard-Montalto, Bársony, Baumel, Bindig, Brunetti, Christodoulides, Davis, Demetriou, Diana, Enright, Eörsi, Evangelisti, Ms Feric-Vac, MM. Floros, Frey, Frunda, Gjellerod, Glesener, Gligoroski, Gross, Gürkan, Gusenbauer, Haraldsson, Holovaty, Irmer, Ivanenko, Jansson, Jaskiernia, Jurgens, Ms Kanelli, Ms Kautto, MM. Kostytsky, van der Linden, Magnusson, Marmazov, Moeller, Moreels, Nedelciuc, Ms Nemcova, MM. Pahor, Pollo, Pollozhani, Ms Poptodorova, Ms Ringstad, MM. Rogozin, Saglam, Ms Sehnalova, MM. Smorawinski, Soendergaard, Sole Tura, Solonari, Ms Stoyanova, MM. Surjan, Taylor, Vahtre, Vella, Weiss, Ms Wohlwend, M. Zierer.

N.B. The names of those members who took part in the meeting are printed in italics.

Secretaries to the committee: Mr Ausems, Mr Mezei, Ms Clamer and Ms Trevisan.

1 The latter’s dismissal has been requested because of the incident at Boryspil airport in December 2000: three members of the ad hoc investigating Committee have been searched by customs officials despite their parliamentary immunity.

2 In November 2000, Mr Vorotyntsev, coroner, performed an autopsy on the decapitated body and skull found near Kyiv along with personal effects that Mr Gongadze's wife said belonged to her husband. The coroner's report was never released. Deputies said that prosecutors who searched the home and office of Ihor Vorotyntsev had removed “all the objects and documents" that may be related to the affair. “These acts are designed to delay the coroner's report and disorient the investigation," members of the ad-hoc Committee believed.