November 30, 2004

On Averting Manifestations of Separatism in Ukraine that Threaten the Sovereignty and Territorial Integrity of the State

Esteemed people's deputies, invitees and guests of the Verkhovna Rada of Ukraine,

The resolution of Verkhovna Rada of Ukraine of November 27, 2004 slowed down the escalation of the tension in Ukraine and relieved the world. It is with consideration to and on the basis of the above that the position of the Verkhovna Rada of Ukraine as the only national representative body should be assessed. It is the only body capable of maintaining civil peace and tranquility in the country, its territorial integrity, and ensuring transparency and predictability of the developments. No more public administration system. The law no longer rules the country. It may be possible to level the situation and to return back into the legal environment with only responsible and radical political measures.

Now it shall be necessary to enforce, yes, specifically enforce execution of the Parliament resolutions.

In relation to this I would like to recall Article 91 of the Constitution of Ukraine: "The Verkhovna Rada adopts laws, resolutions and other acts by the majority of its constitutional composition except for cases envisaged by this Constitution". Thus, Verkhovna Rada of Ukraine resolutions must be executed, and if somebody does not like them he/she must address the Constitutional Court of Ukraine.

Presidential elections turned first into a political and then, in a matter of days, into the constitutional crises. Now we are on the brink of a systemic crisis of scale. From here stems the need for some definite actions. No time for sentiments and persuasion — as well as for empty calls for a dialogue — left.

This is why every decision of the Verkhovna Rada of Ukraine must be adequate and timely — and harsh, if you want — today.

One might develop an impression we have been following scenarios sketched and launched for us all the time. We react to one only for another to come in sight. The last one has posed a threat to nation’s sovereignty and the territorial integrity.

Therefore, some principled and critical evaluation should be given to instances of separatist, autonomist moods proliferation, primarily on the territories of the Eastern and South-Eastern Ukraine, which certain political forces and public servants attempt to implant overriding constitutional norms and the law in force.

That found its way into actions and decisions of local governments, especially of the leaders of regional state administrations and councils of Odesa, Kharkiv, Lugansk and Donetsk Oblasts — particularly as regards subordination of military law enforcement agencies, expansion of powers of the Executive, pondering the issue of possibly reducing raw material supplies, withholding assessments to the central budget, and initiating establishment of illegal and anti-constitutional territorial formations.

It came to United Nations Secretary-General’s calls from the world’s supreme tribune to Ukraine to preserve its unity, sovereignty and territorial integrity — the task of paramount importance for the Ukrainian people and for the regional and international security. And here we see only clink-clank and no responsibility whatsoever.

One should note in the same time that these events development practically within one day during the visit of foreign political crisis mediators to Kyiv.

Besides, it is indicative that the decisions local governments made in some oblasts instantly triggered the ‘moth-balled’ issue of possible federalization of Ukraine.

One of the variants of implementing such spontaneous initiatives of the local government is mentioned a possibility of some oblasts and regions’ separation with prospects of their subsequent accession to another state.

I am far from thinking that some regional leaders protect their choice in such a way, both in the East and in the West. There should be a limit; there should be something holy and impervious that should not be trespassed whatever the circumstances are. If there’s no respect for the Law, there should at least be an idea of responsibility before one’s children. As there obviously some mutual agreement should be reached on avoidance of any repressions against supporters of either of the sides. This is yet another factor that catalyzes tension. These are the realities that clearly should be discussed.

The fact that some media outlets spoke of the probability of separatist moods spread in Ukraine as of unavoidable phenomenon resulting from geographic divide of predilections of the followers of the two presidential candidates, not only based on the results of the last election campaign but also throughout 2002 Parliamentary elections merits some special attention. The mentioned tendencies in Ukrainian developments coverage have become even more pronounced of late.

Nevertheless, even preliminary analysis of this, undesirable for Ukraine, scenario, shows that it remains mostly speculative and theoretic, though some political forces in our state and (we cannot rule out this opportunity) abroad, try to make it as topical as possible.

Availing myself of this opportunity, I would like to note that the time is ripe for the Ministry of Justice to use legal mechanisms to cancel registration of those political parties that are in breach of the law.

We have to establish, and at the same time stress, the issue of breach of 1992 agreements on guarantees of territorial integrity of our country in exchange of nuclear weapons withdrawal from Ukraine.

Until now, no statements have been made by the nations, who are guarantors of Ukraine’s territorial integrity. Our Ministry of Foreign Affairs keeps silence and would not stir the matter either.

On the other hand, further intentions and actions of Ukraine’s local government representatives aimed at declaring their region’s autonomy in this or that form, contravene constitutional norms and laws in force in Ukraine and thus render impossible any thinkable implementation of approved illegal decisions. Thus, in accordance with Article 2 of the Constitution of Ukraine, our state is the unitary one, and its territory is integral and inviolable within the existing borders. Any change of Ukraine’s constitutional order bypassing the central bodies of the Executive and the Legislature is impossible and may happen only via an all-Ukrainian Referendum (Article 73).

The all-Ukrainian Referendum on the above matters may, in its turn, be announced by the President of Ukraine on initiative of the people on the request of at least three million of citizens eligible to vote given that signatures in support of the referendum are collected in at least T of oblasts with at least 100,000 signatures in each oblast (Article 72).

The above shows that an attempt by any single regional authority of Ukraine to declare any form of autonomy of a certain part of Ukraine is completely anti-constitutional.

No referendum held in one or several administrative/territorial units of Ukraine may make decisions on the above issues. Local referendums may only decide on matters of local significance within the competence of local self-government.

Organizing and conducting local referendums on changes in the territorial structure of the whole Ukraine —more yet, even with claims of the mandatory force of such their decisions — is an overtly provoking breach of the Constitution and of the laws of Ukraine, and criminal penalties should apply to the coordinators of such referendums.

Besides, further activities of local government representatives focused on the promotion of separatist and autonomist moods completely fall under Paragraph 2, Article 110 of the Criminal Code of Ukraine, and relevant actions may be brought against them by the Prosecutor-General Office and the Security Service of Ukraine.

For your information: Paragraph 2, Article 110 of the Criminal Code of Ukraine establishes that premeditated actions made to change the boundaries of the territory, or the state border of Ukraine in contravention to the procedure as set out in the Constitution of Ukraine made by a person who is a representative of the government, or repeatedly, or when prearranged by individuals, or in combination with fomentation of ethnic or religious hatred, shall be punishable by limitation or deprivation of freedom from three to five years.

For example, the following may be regarded as such premeditated actions: declaring certain part of Ukrainian territory a sovereign state, or actual establishment of political and economic sovereignty of a certain administrative-territorial unit of Ukraine to signify its actual recognition as a sovereign state.

Notwithstanding that, we have already heard calls for the need of creating new territorial-state units, and relevant decisions have already been made to support their implementation.

That is, it is about the anti-constitutional efforts to organize and practically implement measures that violate Ukraine’s territorial integrity as such.

In this regard, I feel compelled to remind those repeated calls for the establishment of a South-Eastern State within nobody-knows-what federation that were voiced at the assembly of deputies of local councils in Severodonetsk. Though — it should be noted for the sake of objectiveness — not reflected in the assembly’s decision, those calls nevertheless themselves make sufficient grounds for the Security Service and the Office of Prosecutor-General of Ukraine to make a legal assessment of them.

Actions in breach of the Constitution of Ukraine that aim at declaring a new autonomy within Ukraine without subsequent changes in the boundaries of the territory, or the state border of Ukraine, are criminally punishable as well.

Under certain circumstances such actions should be deemed as the abuse of authority as actions that obviously go beyond the scope of rights or authority granted to certain officials (Article 365 of the Criminal Code of Ukraine).

Calls for creation of a new autonomy in Ukraine in an unconstitutional manner are fomentation of crime under Article 365 of the Criminal Code of Ukraine (abuse of the powers or the authority).

Should the actions related to the creation of a new autonomy in Ukraine in an unconstitutional manner be taken by individuals other than officials, these may be qualified as criminal under Article 353 of the Criminal Code of Ukraine – voluntary misappropriation of the official powers of an official; and calls for such actions made by individuals other than officials may be qualified as fomentation of such crime.

Therefore, from a legal standpoint, all actions, including public calls, aimed at illegal breach of the political system and the integrity of Ukraine should be examined for indications of criminally punishable acts. Under such conditions, everyone vested with the authority to properly legally react to such actions, primarily the President of Ukraine, the Security Service of Ukraine, and the Office of Prosecutor-General of Ukraine, should say what they are entitled to under the Law.

And those who state that for them it is nearer to the Russian Federation than to Kyiv should bear in mind, among other things, that it is impossible to add certain Ukrainian regions to the Russian Federation also from the legal point of view — even given a strong desire of a certain territory and when this desire is imposed on the Russian Federation.

Because, above all, this will contravene the Russian legislation. In this way the federal Law on the Procedure of Accession to the Russian Federation and Establishing within Its Structure a New Subject of the Russian Federation clearly defines the procedure of changing the structure of the Russian Federation in relation to granting the status of Russian Federation’s subject to a foreign state or part thereof.

In particular, the accession to the Russian Federation is implemented by mutual consent of the parties pending execution of an international treaty. At the same time, the international treaty can be concluded exclusively on the initiative of the foreign state.

This circumstance is by itself indicative of the adventurism of the endeavors of the initiators of the separation of a part of territory from Ukraine.

It should be taken into account however, that if the present political conflict that shows a tendency towards increasing continues, there may come into being a situation when the central power of Ukraine would be paralyzed or ruined and the country will find itself outside the Constitution, which would automatically ruin legal barriers both to autonomist and separatist tendencies that dwell in a latent form.

I would like to stress once again that the events of the recent days compel one into thinking about the likelihood of existence of an "anti-Ukrainian plan" one component part of which is the attempt to divide Ukraine according to different principles, including on the basis of the geographic criterion.

The above mentioned information is proved, in particular, by the fact that the mass media had actively discussed the "diametrical polarity of the sympathy of the population of Ukraine: the West is for V. Yushchenko, the East and South are for V. Yanukovych" as early as before the beginning of the electoral campaign. Special focus was made on the economic backwardness of the "pro-Yushchenko oblasts" against the background of the "industrial strength" of those regions whose body of electors sympathized with V. Yanukovych.

The mentioned theme was also actively exaggerated by many politicians and political technologists. Let us recall, at least, the map of Ukraine divided into parts aired by some national TV channels almost every night. What could it be if not zombying?

It is also necessary to make a principal and exhaustive legal and political assessment of the whole wave of other decisions and other actions of local self-government and of some heads of local governments that clearly contravene the Constitution and the laws of Ukraine.

This concerns the establishment of the "executive committees" of oblast and district (rayon) councils which aspire to receive part of the powers. This also concerns the attempts of take over the functions of the central government bodies of Ukraine (for example, to subordinate internal affairs’ authorities, withhold fiscal transfers to the State Budget, the prohibition certain channels broadcasting over the relevant territory).

First of all, it shall be necessary to condemn strongly and unambiguously that sort of actions. Because objectively they also threaten the state and its territorial integrity.

There are also cases in which a council decides to individually exercise its powers, which according to the Law "On Local Self-government in Ukraine" (Article 44, Article 43, part 1, paragraph 27) it delegates to the relevant state administration, and in this connection takes a decision to establish executive committees, as, for example, it has been done in Volyn, Ivano-Frankivsk, Lviv, Ternopil oblasts which may be the first to set an example of a peculiar attitude to the effective legislative basis. There are also violations of law in this case, although there are no encroachments on powers and functions of the central public authorities.

We, however, have a right to demand emphatically and categorically of those councils not to overstep the limits of the provisions of existing laws, to bring their decisions to exact conformity with the Constitution and the Law of Ukraine "On Local Self-government in Ukraine."

Of a more serious nature in terms of their consequences are the decisions of local councils or actions of certain heads of local state administrations which or who, using the situation in the country, are anxious to usurp powers of the central public authorities and the finances of the state. Those decisions and actions were the open manifestation of separatism. May be, they have been adopted on the basis of emotions, in a "polemic zeal."

In any circumstances it is necessary to cancel that sort of decisions immediately, to stop the attempts to usurp the power prerogatives which belong to the whole Ukrainian state.

And if such decisions and actions are the deliberate manifestation of hostility towards Ukraine, the General Prosecutor's Office, the Security Service of Ukraine must react to them irrespective of the region – both in the West and in the East – in the way in which it is necessary react to actions which are dangerous to society.

It is necessary, obviously, to remind that, if a local council violates the Constitution and laws of Ukraine, both in the East, in the West and in the Center, and if it disregards the demands of public authorities to bring those decisions in conformity with law, the Verkhovna Rada (Parliament) of Ukraine may call an extraordinary election of such councils thereby dissolving them.

Separately and with a special emphasis I would like to point out that statesmen’s participation in a meeting where the possibility of anti-Constitutional change of the state structure and other actions which infringe the integrity and sovereignty of the state were discussed is inadmissible. Not to mention from what force they derive and in what region they are proclaimed.

Taking into account the potentially dangerous degree of similar decisions and actions and proceeding from the necessity to suppress and, if you like, to eradicate them in their first stages, the Verkhovna Rada (Parliament) of Ukraine must adopt the proposed resolution, having determined its attitude towards those variants which are included in the draft.

That sort of approach will not only save the Ukrainian State, but will also give an impetus to the development of parliamentarism in Ukraine, to the real strengthening of democracy and the supremacy of law.

The Verkhovna Rada (Parliament) of Ukraine must not only declare that it has to take responsibility for the situation in the state, but also to practically do this.