24 September 2022
Since the release on 25 August 2022 of the Fact Sheet “The Banning of Political Parties in Ukraine: Chronology and Status of Appeals”, two more of the seven opposition parties appealing their bans before the Supreme Court of Ukraine have lost their appeals.
After an appeal hearing on 6 September, the Supreme Court declined to overturn a lower court’s decision to ban the Party of Shariy. It is noteworthy that one piece of evidence used against that party was an interview given by activist Anatoly Shariy, for whom the party is named, five years before the Party of Shariy was founded.
Amendments to the Law of Ukraine “On Political Parties in Ukraine”, banning “pro-Russian parties”, were passed by Parliament and signed into law in May 2022. The cases brought by the Ministry of Justice of Ukraine against 16 opposition parties, however, have consistently applied that law retroactively to statements and actions dating from long before May 2022, despite the fact that Article 15 of the International Covenant on Civil and Political Rights, to which Ukraine is a party, states: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”
The appeal of the party Opposition Platform – For Life (OPFL) was heard before the Supreme Court on 15 September. This party had received 13 percent of the vote in the Parliamentary elections of 2019 and held 44 seats in the Supreme Rada (Parliament), the second largest bloc. The Supreme Court let the lower court’s ruling stand, meaning that the OPFL is now permanently banned in Ukraine.
The next hearing of an appeal is scheduled for Tuesday, 27 September at 10:00am local time. Representatives of the Progressive Socialist Party of Ukraine (PSPU) will argue their case, that due process and their fundamental civil and political rights have been trampled in the Ministry of Justice and Security Service of Ukraine drive to ban their party. The Central Committee of the PSPU has released a statement, dated 8 September, “Ukrainian Democracy Needs to Be Defended by the Supreme Court against the Government’s Dictatorship” (English translation below). It will be attached to the case files, along with statements by individual PSPU members, when the PSPU representatives argue their case.
Observers, including foreign diplomats and media, are permitted at Supreme Court hearings, which are held at 8 Moskovskaya St., Bldg. 5, in Kyiv. Telephone number for Supreme Court: (044) 207-35-46. For requests regarding specific case files: (044) 501-95-30. The online schedule of hearings before the Administrative Court of Appeal (in Ukrainian) can be checked for updates.
Ukrainian Democracy Needs to Be Defended
by the Supreme Court against the Government’s Dictatorship
of the Central Committee
of the Progressive Socialist Party of Ukraine
Kyiv, 8 September 2022
We, members of the Central Committee of the Progressive Socialist Party of Ukraine (PSPU), lawfully elected by a Congress of the PSPU, as confirmed in the Register of the Ministry of Justice of Ukraine, are compelled to address the Supreme Court in connection with its review of the PSPU’s Appellate Complaint. The purpose of our address is to inform the high court about the real goals and actions of the PSPU, which have been grossly distorted in the statement of claim by the Ministry of Justice of Ukraine (hereinafter “MinJust”) and the letter of the Security Service of Ukraine (SBU), which led to an unlawful and groundless decision by the 8th Administrative Appeals Court in Lviv on 23 June 2022.
We dispute that court ruling and fully support the Appellate Complaint of the PSPU dated 21 June 2022, and we demand that the decision of the 8th Appeals Court’s decision be overturned. We hope that, in meticulously reviewing our Appellate Complaint, you will be convinced that that court decision, in effect, abolishes any democratic constitutional order in Ukraine, grossly violates the state’s obligations to ensure the rights of citizens of Ukraine, assembled in the PSPU, under the Constitution and conventions, and abrogates Article 15 of the Constitution of Ukraine, which guarantees the freedom of political activity, and Article 12 of the Law of Ukraine “On Political Parties in Ukraine”, with respect to the protection of opposition activity.
In basing its decision upon the positions of the Ministry of Justice of Ukraine, the court of the first instance grossly violated fundamental principles of European democracy (formulated by the Venice Commission): 1) the rule of law, including a transparent, regulated, and democratic procedure for adopting laws; 2) legal certainty; 3) the impermissibility of arbitrariness in taking decisions; 4) access to due process of law, carried out by an independent and impartial court with the possibility of appealing administrative acts in court; 5) respect for human rights; 6) nondiscrimination and equality before the law.
During the 26 years of the PSPU’s activity, there have been no claims against either the programmatic goals of our party, or against its actions. Not a single administrative or criminal protocol has been drawn up regarding any violations of law by the party, nor has any court ruling found the PSPU to be in violation of either Article 37 of the Constitution of Ukraine or Article 11, Paragraph 2 of the European Convention on Human Rights.
We consider the Decree of the President of Ukraine, dated 19 March 2022, on banning the activity of political parties, including the PSPU, to be a challenge to democratic constitutional principles. That Decree violated the principle of the supremacy of law in Ukraine, unlawfully halted the activity of the PSPU, and, during a situation of heightened tension in the country due to the tragedy of the war, unlawfully attached to our party the political label of a “pro-Russian, anti-Ukrainian party”.
We evaluate all that as political repressions against an opposition party, as is confirmed by the political, rather than legal, arguments provided for the claim by the Ministry of Justice of Ukraine and the ruling by the 8th Administrative Appeals Court of Lviv.
We see in this not only a presumptuous reprisal against our party, but also a violation of all the foundations of Ukraine under the Constitution and conventions. This is the road to totalitarianism, dictatorship, and fascism.
Mankind has already paid with tens of millions of lives for Italian fascism and German Nazism. And now we see horrific parallels.
In 1928 the governing body of the fascist party (the Grand Council of Fascism) became one of the highest agencies in Italy and officially banned all political parties except for the fascists. The same kind of process of banning parties took place in 1933 in Germany, making it possible to establish the Nazi regime. Hitler’s people carried out the Reichstag fire provocation, for which two days later (without any investigation!), Hitler accused the Communists. After this the court exonerated Dimitrov, Tanev, and Popov, but found Marinus van der Lubbe guilty, and he was beheaded. This Nazi sentence was overturned on 10 January 2008, and Lubbe was amnestied on the basis of the Federal Republic of Germany (FRG) Prosecutor General’s finding that the sentence was incommensurate with the act committed and because the communist was sentenced to death on the basis of a law adopted after the incident.
In his presentation at the Nuremberg International Military Tribunal, member of the prosecution from the USA Maj. [Frank] Wallace exposed the essence of German Nazism as being the destruction of everything non-German. Analyzing chapter 4 of the party program of the National-Socialist German Workers’ Party, Wallace brought to the attention of the Tribunal that the theory of a superior race: “had annihilation as its goal. Call something ‘non-German’ or ‘Jewish’, and you have the full right – moreover, you are obligated – to wipe it from the face of the Earth” (Nyurnbergskii protsess [The Nuremberg Trial], collected materials in 7 volumes, Vol. 1, p. 569).
This alarming parallel to a slide into dictatorship and totalitarianism arose from the adoption by the President of Ukraine of Decree №153/2022, dated 19 March 2022, on suspension of the activity of certain political parties (including the PSPU) and the application of that Decree as the basis of the statement of claim by the Ministry of Justice of Ukraine and the Security Service of Ukraine on banning the activity of the PSPU. The 8th Administrative Appeals Court of Lviv used these grounds for making its ruling to ban the PSPU.
The political and civil rights of citizens of Ukraine, among which are the right of association in political parties, are defined solely by the Constitution and laws of Ukraine and the obligations of the state under ratified international treaties. In particular, under the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Without withdrawal from these treaties and the passage of amendments to the Constitution, which would endow the President with the right to interfere in the activity of parties by decree (including to halt the activity of parties and to block their bank accounts), it is illegal to manipulate these processes. The application of the Presidential Decree dated 19 March 2022 by the Ministry of Justice, the SBU and the 8th Administrative Appeals Court violated a fundamental principle of the democratic order – the supremacy of law.
This Decree, in violation of the presumption of innocence, labelled all members of the PSPU as “anti-Ukrainian and pro-Russian”. Neither the Constitution nor any law of Ukraine contains any legal certainty regarding these terms, nor is there any indication of what these violations of law consist in and what the consequences are for parties in the event of their committing such violations. Consequently, the PSPU evaluates the application of such accusations to parties as a manifestation of Nazism and the annihilation of the opposition on political grounds.
This political label tarnished the dignity of members of our party, who are conscientious, law-abiding citizens of Ukraine, turning them into enemies of their own people in the eyes of not only the Ukrainian, but the world community. This was an instigation to political harassment of members of the PSPU, their families and friends, and to physical reprisals and killings.
With this policy towards members of the PSPU, the President of Ukraine, the MinJust, the SBU and the court of the first instance, in violation of Article 3 of the European Convention on Human Rights, launched psychological and moral terror, and created conditions of fear, suffering, and inferiority for members of the PSPU.
One of the examples of such terror was the harassment of member of the CC PSPU, Secretary of the Sumy Regional Committee of the party Sergei Gavras (Serhiy Havras). This outstanding athlete, a world-class master of sports in the javelin throw, many-time champion of Ukraine, the USSR, Europe, the world, and the Olympic Games, was forced in August of this year to leave Ukraine because of harassment in his native town of Romny in Sumy Region, with not only insults, but also threats of physical reprisals.
We, members of the CC PSPU, are disturbed by the MinJust’s and SBU’s distortion of the programmatic goals, founding principles, and activity of our party. We have been accused of crimes, defined in Article 37 of the Constitution of Ukraine and amendments to Article 5 of the Law of Ukraine “On Political Parties in Ukraine”, among which is: “The party and its members continue to propagandize a pro-Russian position and circulate reports justifying the actions of the Russian Federation” (Article 7 of MinJust’s claim).
As members of the CC, the governing body of the Party, we are authorized to inform the Court, that this position of the MinJust and the SBU is a politically motivated lie.
The PSPU has never, in the entire 26 years of its opposition activity, called for the use of violence, for a violent change in Ukraine’s constitutional order, for undermining the security of the state, for violating its sovereignty or territorial integrity, for fanning inter-ethnic, religious, or race enmity, or for infringing human rights and freedoms. The PSPU always adopted its decisions collectively – by a congress, by the Central Committee, or by the CC Presidium. All such sessions were always video- and audio-recorded and all resolutions of the PSPU were published.
We draw the Court’s attention to the fact that neither the MinJust nor the SBU presented any decision by the PSPU’s governing bodies in support of their accusations. That is because none exist.
As for the unfounded assertion regarding “continuation of pro-Russian propaganda and justification of the RF’s aggression”, we state that the PSPU has adopted no decisions in that regard, nor could it have done so, because all units of the party (including the governing bodies of the PSPU) ceased their activity as of 24 February 2022.
Unlike the organizational form of the Nazi Party in Germany or the Fascist Party in Italy, which implemented the “fuehrer” principle, i.e., members of the party, before joining, pledge allegiance and unconditional obedience to the head, or fuehrer, of the party, the PSPU Charter embodies the principles of collectivism and democracy in decision-making.
The MinJust, to deceive the court, concealed the contents of the PSPU Charter, according to which all units of the party (from local cells to regional organizations to governing bodies) make their decisions democratically, i.e., by a majority vote of those present. A unique element of democracy within the party is that the governing bodies of the PSPU, the leaders of the PSPU, and the governing bodies and leaders of local and regional PSPU organizations are chosen by secret ballot. That is the highest form of democracy.
The MinJust deliberately left out of account that, upon joining the PSPU, citizens of Ukraine united around the party’s programmatic goals, but did not surrender their personal rights to freedom of speech, freedom of thought, and freedom of belief.
Thus, in accordance with the PSPU Charter, the party’s position on any economic, social or political issue was determined by an officially adopted decision. The party bears responsibility for its adopted decisions, but not for the statements or actions of members of the party. We cite Paragraph 1.4 of the PSPU Charter:
“The activity of the PSPU is incompatible with the propaganda of violence, of ethnic, religious, or social enmity, or of narrowing the content of existing human and civil rights and freedoms.
“The party shall bear no liability for the statements or actions of a member of the PSPU, or of leading persons in the local, municipal or regional organizations of the PSPU and their governing bodies, if they violate the Constitution of Ukraine or fail to adhere to the PSPU’s Program and Charter and to the decisions of the Party’s highest governing bodies.”
The PSPU has always been guided, in its programmatic goals and actions, by two fundamental documents, on the basis of which the entire world recognized the sovereignty and independence of Ukraine, and, inclusively, guaranteed its territorial integrity. Those documents, adopted by the Ukrainian Parliament, are the Declaration of State Sovereignty of Ukraine and the Declaration of the Rights of the Nationalities of Ukraine. Section V of the PSPU Program recognizes fulfillment of these two declarations as the PSPU’s minimum program.
The programmatic goals and activity of the party in fulling the aforementioned declarations have not been found to be illegal under any law of Ukraine. It is not the PSPU, but the government of Ukraine, without the approval of our people (without holding a referendum), that has refused to implement those declarations in the conduct of domestic and foreign policy. The government authorities have ignored repeated warnings from the Progressive Socialists about threats to the sovereignty and territorial integrity of the state, in the event that domestic and foreign policy contradict those declarations.
It is the governing regime, not the people of Ukraine by referendum, that adopted the laws on lustration, on decommunization, on the functions of an official language, on making heroes of the Organization of Ukrainian Nationalists and the Ukrainian Insurgent Army (OUN-UPA), on Ukraine’s path into the EU and NATO, and on the sale of land. It is the government, the President, the National Security and Defense Council of Ukraine, the SBU, the Ministry of Defense, and the Ministry of Justice – upon whom the Constitution lays responsibility for defending the sovereignty, security, and territorial integrity of Ukraine – that miscalculated the risks and consequences of such policies. And now they lay the blame on us.
The essence of democracy, which the governing authorities are obliged to defend, has been set forth many times in decisions of the European Court of Human Rights. In particular, in the Prager and Oberschlick case (Prager et Oberschlick c. Autriche. 26.04.95), the court emphasized that the freedom of speech applies not only to “information” or “ideas” that are received positively and considered harmless or insignificant, but also to ones that offend, shock, or perturb the state or any part of society.
We are disturbed by the position of the SBU and the MinJust, that ideas about developing Ukraine upon the principles of the Declaration of State Sovereignty of Ukraine have become, in effect, the basis for banning the PSPU. Moreover, that Declaration was supported by the population of Ukraine in two referendums, those of 17 March and 1 December 1991, and acquired the status of highest juridical authority.
The political pretensions set forth by the MinJust in its complaint, supported by the SBU and applied by the court of the first instance in making its ruling on banning the PSPU, contradict the requirements of European democracy and Ukrainian legislation. No law forbids discussion of such political issues as these:
- a neutral, non-bloc status for Ukraine (i.e., against its joining NATO);
- granting the Russian language the status of an official language for inter-ethnic communication or the status of a second official language;
- the impermissibility of making heroes of the OUN-UPA fighters, who collaborated with Nazi Germany;
- Ukraine’s entry into an interstate union with republics of the former USSR (i.e., against joining the EU);
- opposition to the sale of land;
- opposition to a colonial model of capitalism in accordance with International Monetary Fund reforms.
Therefore, to indict the PSPU for raising such questions constitutes political repression and is a manifestation of totalitarianism and dictatorship.
We, members of the CC PSPU, inform the High Court, that our party has funded its activity by contributions from members of the party and has not received financing from any Russian funds.
We reject the SBU falsehood that our party has financed L/DPR terrorists.
We are disturbed that the SBU, having failed to provide any legal substantiation against the legal position of the PSPU’s Appellate Complaint, resorted once again to pressuring the court by packing the case files with so-called evidence in the form of screenshots from Internet websites. That is, information from the Internet cesspool. This has been done on the basis of a review, dated 1 August 2022, of six web pages of little known and probably SBU-controlled websites, on which a pile of dirt against N. Vitrenko has been poured (beginning from her activity in the year 1974), along with fabrications about illegal activity by the women’s organization Gift of Life.
In violation of the law, the SBU did not submit this information to the court of the first instance, where evidence is supposed to be investigated, but rather attached it to the case files in August of this year. We state that not a single piece of this information has anything to do with the activity of our party in general and, in our view, cannot be recognized by the court as proper and authentic evidence.
We also state that the PSPU did not manage the activity of the All-Ukraine Women’s Organization “Gift of Life”, did not receive any funds from it, and had no plans to use such funds for any illegal activity.
Our party took no decisions and endowed no one (including L. Shesler) with the right to create a Facebook group called “Our Leader is Natalia Vitrenko!” and post information there in the name of the PSPU.
We are disturbed by the MinJust’s distortion of the content of interviews given by PSPU leader Natalia Vitrenko on 22 February 2022 and 24 February 2022. Without study of the transcript, without any forensic examination by expert linguists, without examination of the original electronic evidence, and without the establishment of N. Vitrenko’s guilt in accordance with the procedure established by law, the MinJust has submitted its personal conclusions, suppositions, and personal evaluations as evidence for banning the party.
The MinJust, the SBU, and the court unquestionably know that publications of N. Vitrenko’s interviews without examination of the original sources in the form of complete transcripts (not posted fragments) cannot be accepted as appropriate, authentic evidence. The European Court of Human Rights has determined the need for special protection of statements of a person’s own opinion and evaluative judgments on issues of general interest. For example, in the case Altuğ Taner Akçam v. Turkey, from 25.10.2011, it stated: “…the plaintiff stated his own opinion and critical judgments regarding the situation with the freedom of expression, and his statements were clearly part of debates of issues of general interest. Consequently, his freedom to express his views should enjoy the highest level of protection, while interference in his exercise of that freedom ought to be under strict control; moreover, government agencies should be allowed a narrow limit of freedom for review.”
The interviews given by our party’s leader N. Vitrenko concerned an extraordinarily high level of general interest. N. Vitrenko was not found to be in violation of the law for these personal opinions and evaluative judgments. Consequently, we consider the employment of her statements as evidence for banning the PSPU to be unlawful and disproportionate.
A mockery of the principle of the supremacy of law, and in particular the establishment of actual circumstances, is the MinJust’s position (supported by the SBU and employed by the court of the first instance in making its ruling on banning the PSPU) in submitting as evidence the assertion: “From publicly available sources and analysis of the activity of the Defendant, it is known that the political party Progressive Socialist Party of Ukraine is a pro-Russian political party in Ukraine” (p. 5 of the MinJust complaint). This is a travesty of all requirements for the concept of evidence – requirements established both by national legislation and by international norms of law.
By analogy, for example, anyone – in particular, Minister of Justice of Ukraine Maliuska – may be accused of crimes involving drug addiction or pedophilia, based on information from “publicly available sources”, and his dismissal and punishment be demanded.
We, members of the CC PSPU, inform the High Court, that the political persecution of our party by the SBU and the MinJust has been going on since 2015. On 29 October 2016 the SBU, without stating any pretensions against the PSPU, and without notifying the party’s leaders and in their absence, conducted a search in the central party office in Kyiv (seized the day before by the raider Shatilin). During the search the SBU seized the party’s archive in both paper and electronic form (on hard disks), party literature, blank party cards and official PSPU stationery, and the personal scientific and political libraries of N. Vitrenko and V. Marchenko. In violation of the norms of the Criminal Code of Ukraine, the SBU did not make copies of the seized documents and did not return the originals to the party. We are disturbed, that the SBU could have used the party stationery and blank party cards to fabricate any video-montage, falsifying the activity of our party for the purpose of discrediting it.
Since 2015 the Ministry of Justice of Ukraine, by its unlawful activity, impeded the PSPU’s participation in parliamentary, presidential, and local elections, refusing to register the PSPU’s amendments to its Program, Charter, and the make-up of the PSPU’s governing bodies, which had been adopted by congresses of the PSPU. The party was forced to litigate with the MinJust until 2019, trying to overturn its illegal juridical conclusions. We won the court cases, by which the unlawful refusal to register the PSPU’s documents was lifted. The party has attached the judges’ decision to the files of this case.
In 2020 the MinJust was compelled to register the PSPU documents submitted. But this was done only after the presidential and parliamentary elections had taken place, which deprived the public of a political alternative. We believe that by doing this, the MinJust deprived our society of a chance to avoid war.
We, members of the CC PSPU, believe that the MinJust, supported by the SBU and subsequently also by the decision of the 8th Administrative Appeals Court of Lviv, has completely annihilated the legal system of Ukraine as defined by the Constitution of Ukraine and by our country’s obligations under international law, by retroactively applying Article 5 of the Law of Ukraine “On Political Parties in Ukraine”. This is a disgraceful parallel with Nazi Germany. In 1933, the Communist Marinus van der Lubbe was executed there as the arsonist against the Reichstag, on the basis of a law adopted only after the incident. In 2008 the Prosecutor General of the FRG amnestied him on the grounds that the law was adopted after the incident and the sentence was out of proportion to the violation of law.
The Constitution of Ukraine sought to avert the commission of such dictatorial, totalitarian crimes by establishing in Article 58, Part 1 of the Constitution: “Laws and other regulatory acts have no retroactive validity…”, while Part 2 of that Article states: “No one is answerable for actions, which at the moment of their commission were not recognized by law as violations of law.”
This norm of the protection of democracy against totalitarianism has twice been explicated and supported by the Constitutional Court of Ukraine. This question is central to the protections of the European Convention on Human Rights and the practice of the European Court.
Consequently, the MinJust had no right to file on 18 May 2022 its complaint for banning the PSPU on the basis of Article 5 of the Law on Political Parties with amendments, adopted in May 2022, and including indictment of the PSPU for actions that occurred before 24 February 2022.02.2022.
We draw the Court’s attention to the fact that there were no allegations against the programmatic goals and actions of the PSPU until the adoption of points 10 and 11 of Article 5 of the Law of Ukraine “On Political Parties in Ukraine”. Yet upon the adoption of those points regarding justification of the Russia Federation’s aggression and so forth, the MinJust applied these types of violations, newly introduced into the law, to our party. And it accused us of committing these violations from the moment the PSPU was founded in 1996. For this reason, it submitted to the court the documents of incorporation of the PSPU, from April 1996.
Such a violation of a fundamental principle of juridical certainty – the ban on retroactive application of a law – was likewise committed by the court of the first instance in making its ruling on banning the PSPU.
If the Supreme Court does not overturn the ruling of the 8th Administrative Appeals Court of Lviv, dated 23 June 2022, on banning the PSPU, we believe that will mark the end of democracy in Ukraine.
Addressed to the Supreme Court by members of the CC of the Progressive Socialist Party of Ukraine: Natalia VITRENKO, Chairman of the PSPU; Vladimir MARCHENKO, First Deputy Chairman of the PSPU; Vasily RUDAKOV, Deputy Chairman of the PSPU, Secretary of the Committee of the Kharkiv Regional Organization of the PSPU; Victor BOBOSHKO, Secretary of the Committee of the Cherkasy Regional Organization of the PSPU; Sergei GAVRAS, Secretary of the Committee of the Sumy Regional Organization of the PSPU; Ivan DONETS, Secretary of the Committee of the Chernihiv Regional Organization of the PSPU; Lyudmila GORBACHOVA, Secretary of the Committee of the Vinnytsia Regional Organization of the PSPU; Vera MARISAY, Secretary of the Committee of the Kyiv Regional Organization of the PSPU; Larisa SHAKALENKO, Secretary of the Committee of the Mykolaiv Regional Organization of the PSPU; Tatyana MAKARENKO, Secretary of the Committee of the Dnipropetrovsk Regional Organization of the PSPU; Vladimir SOLOZHUK, Secretary of the Committee of the Kirovohrad Regional Organization of the PSPU; Nina SORBA, Secretary of the Committee of the Chernivtsi Regional Organization of the PSPU; Alexander DERENYUK, Deputy Secretary of the Committee of the Odessa Regional Organization of the PSPU; Larisa SHESLER.
Chairman of the PSPU Natalia Vitrenko