Whether the blow inflicted on Ukraine’s fragile democracy last week proves fatal will depend on a number of factors, not all linked with the EuroMaidan mass demonstrations. The blitzkrieg attack was so brazen, both in method and ammunition used, that all protest from the west seemed scarcely worth the effort.
This, I believe, is not yet the case. A president desperate to remain in power and his parliamentary titushki may do the opposition and civic activists a favour – if some painful lessons can be learned.
Ukraine remained in the world headlines for two weeks or so in November-December, first because of the vast pro-Europe demonstrations, then due to outrage over the violence against peaceful protesters, particularly on November 30. The attention waned and concerns increased as it became evident that Viktor Yanukovych and his guard had no intention of doing more than making a few insincere noises. The president’s “applause” for peaceful protesters came against a background of blanket bans on all protests in Kyiv and throughout the country. The promises to find those guilty of excessive violence against protesters remained words as empty as the law passed on waiving criminal prosecutions against protesters.
Instead of the promised amnesty, repressive measures, similar to those so scandalously “adopted” by the ruling majority on January 16, began gaining pace. The number of obvious attempts to provoke trouble from hired thugs or titushki increased, as did attacks on journalists and civic activists, most prominently the savage assault on investigative journalist and civic activist Tetyana Chornovol.
Every new mass demonstration was greeted with triumph, as proof that the people had not been cowered. Every new attack strengthened campaigns in the West for “sanctions.”
The December 15 mass demonstrations coincided with repeat parliamentary elections in the five “problem constituencies.” Large numbers of observers, including foreign ones, registered multiple irregularities, including the ominous presence of “titushki” at many polling stations. The main Ukrainian watchdogs OPORA and the Committee of Voters of Ukraine [CVU] both criticized the mass use of vote-buying, administrative resource, as well as the scandalous use of the courts to remove the likely winning candidate in one constituency.
The demonstrations continued, as if in some parallel world. There were no specific calls for sanctions over the elections. Even if there had been, they would have remained words alone, especially given the fact that the main vote rigging had been organized before the observers took their places. While large numbers of students, for example, stood on Maidan, others supplemented their student grant by selling their vote.
Yanukovych’s moves over the last two months are widely seen as being specifically aimed at “winning” the 2015 presidential elections. If those elections end like the last Belarusian farce (December 2010), then sanctions will be imposed. Sanctions did not oust Lukashenko in Belarus, and will change little in Ukraine.
There was nothing subtle about the blitzkrieg offensive last week. Large numbers of activists had arrived at Maidan [Maidan Nezalezhnosti] on January 15, following rumours of a new attempt to disperse the protest and clear the city centre. The attack came instead the next morning in the Verkhovna Rada and proved fiendishly successful.
Ten bills, including one overtly aimed at neutralizing journalists and civic activists, were “adopted” by the two ruling parties – the Party of the Regions and the Communists – with breathtaking disregard for parliamentary regulations and the Constitution. The draft laws had only just been registered, they hadn’t passed through any of the required procedure for consideration and discussion, nor were they discussed on January 16. Instead there was a “show of hands,” with the requisite number conveniently counted, although photographic evidence suggests that only half the MPs needed were actually present.
More details can be added although really only for the record. Why speaker Volodymyr Rybak felt the need to assert on the official parliamentary website that the voting had been in accordance with European standards is perhaps a question for psychologists. There was no pretence of adhering to the law, and the calls on the president to veto such demonstrably unconstitutional laws were also, unfortunately, largely pro forma. His signing of all the texts on Friday surprised nobody.
The laws are primitive with their targets being embarrassingly obvious. There are a number of amendments to legislation bringing in draconian fines, possible confiscation of vehicles, aimed specifically at crushing the AutoMaidan movement which has been organizing processions to the residences of the president and high-ranking officials. Any more than five vehicles must now effectively have the permission of the traffic police, which it will not get. This is in direct breach of Ukraine’s Constitution, since Article 39 requires only that the authorities are informed, not that they give permission.
The law contains numerous amendments specifically designed at using others to put pressure on activists. The law, for example, makes the person in whose name the car is registered liable regardless of the person’s actual involvement in the protests.
There are similarly repressive measures, including up to fifteen days imprisonment for wearing helmets or a mask at a demonstration, for erecting tents ,which are a traditional part of peaceful protest in Ukraine, and others. Criminal charges carrying up to five years imprisonment are proposed for seizing official buildings, and similar.
A number of the punitive measures, including up to fifteen days imprisonment, are to be imposed for organizing a peaceful protest which does not comply with “established procedure”. There is no such established procedure, which means that it is likely to refer to whatever document the local authorities decide should constitute such procedure, with one favourite being a decree from Soviet times (1988).
Once again, the penalties for such supposed infringements of Article 185-1 of the Code on Administrative Offences are extended in the second paragraph to business or organization leaders for supporting peaceful protests which somebody deems to not comply with this same “established procedure.”. The penalty here is up to ten days imprisonment.
Ominous role model
Some of the worst aspects of Law No. 3879 are taken straight from legislation controversially passed in Russia over the last years. Defamation has been re-criminalized in a clear attempt to silence critical journalists and activists. Some of the sentences in this part of the law could almost have the names of specific journalists added. The penalties for “libel” are especially draconian if the person has accused somebody of being behind a serious or particularly serious crime. Chornovol and others have been open in accusing the president, the Interior Minister, or Prosecutor General of being behind the attack on her.
All of the above becomes extremely serious given the total degradation of the judiciary over the last four years. There is heavy pressure on judges to pass “the right sentences,” punitive measures against those who don’t, and likely promotion or other benefits for those judges who demonstrate servility or who are in with the clan. Rodion Kireyev, who sentenced the former Prime Minister Yulia Tymoshenko to seven years, was made deputy head judge of the Pechersky District Court in Kyiv shortly after gaining indefinite tenure.
Judges, as well as law enforcement officials, have been particularly well looked after in the new law where something termed “interference in their activities” can carry a two-year term of Imprisonment. Interference in the work of the court has nothing to do with trying to pervert the course of justice. The law says that this is circulating information about a judge which is of an “overtly offensive nature and demonstrates disrespect for the judge and justice system…” Disrespect for a judge like Kireyev who sentences an opposition leader to seven years on politically motivated charges can hardly be denied. Expressing well-founded suspicions when the judge in whose court the president’s criminal record got “lost” is made head of the Constitutional Court or when this same judge, Volodymyr Ovcharenko, and others sport watches cost $30,000 is now likely to be deemed a criminally liable act.
The scope in the law is vast with “extremist activity” always there to fall back on if other charges prove problematical. The charm here is in a definition of “extremism” which is so vague and far-reaching in its scope that it effectively covers any criticism of those in power.
The law is quite overtly aimed at intimidating and silencing civil society. In the most ominous aping of neighbouring Russia, NGOs “which fulfil the function of a foreign agent” are supposed to register themselves as such, submit quarterly reports and pay corporate tax. NGOs are thus stigmatized with the population encouraged to see them as some kind of fifth element. How successful this will be is debatable, in part because the government has long shirked its real responsibilities and a large range of social, medical, and other activities would simply be inconceivable without foreign assistance. The real target are those NGOs engaging in “political activity” this being defined as activities “which are aimed at influencing decision making by state bodies, a change in the state policy which those bodies have defined, as well as forming public opinion for those purposes.” In short anyone the authorities wish to nail, which can be said of most norms of this law.
Other laws are also dangerous, with one making it possible to try a person in absentia regardless of the reasons for their absence, another extending the amnesty passed by a constitutional majority yet thus far not enforced to those Berkut riot officers guilty of savage attacks on peaceful protesters.
An attempt to further divide and radicalize protest in Ukraine can be seen in Law №2179а which criminalizes the “denial or justification of the crimes of fascism.” A closer reading makes it clear that the bill will be applied against members of the VO Svoboda party and other Ukrainians who view Stepan Bandera and the Ukrainian Insurgence Army [UPA] in a positive light.
All of the laws are so sweeping that they could only ever be applied selectively. This is a major advantage to the authorities who can respond to situations likely to discredit the protest, while ignoring many others. Such tactics must still intimidate since there is no way of knowing who will be targeted.
As with previous repressive or violent measures, the laws did not stop tens of thousands from coming out into the centre of Kyiv on Sunday, January 19. This time, rumours about likely provocation seem to have proven correct. Most reports suggest that the trouble which erupted on Hrushevsky Street on Sunday evening was initiated by a group of Russian-speaking provocateurs wearing orange masks who attacked the interior ministry troops (conscript soldiers) cordoning off the government quarter.
The police are already threatening prosecution and possible fifteen-year sentences, and there is no doubt that real laws this time have been broken. .
There is bitter irony in the fact that provocation was made much easier by the number of people who demonstrated their resistance to pressure by donning masks. While most of the anti-protest measures are undoubtedly repressive, the ban on masks and other means of remaining anonymous would protect real protesters. They would hopefully also restrain hot-headed protesters who join in after trouble has started.
The brutal truth, however, is that ongoing street protest given a subservient police force and large numbers of titushki or thugs who are not brought in for their intellectual input cannot endlessly restrain outside provocateurs and its own activists eager for more action. A similar provocation on December 1 outside the president’s administration on Bankova St resulted in the arrests and ongoing prosecutions of activists, journalists, and protesters who almost certainly had nothing to do with the trouble. The same scenario may well be repeated now.
One major factor cannot be attributed to those in power, but is doubtless most welcome to them. An appeal initiated by Ukrainian intellectuals and civic activists on Friday is calling on the opposition leaders to put aside personal ambitions and decide on one leader and presidential candidate now. Similar calls were heard on Maidan during Sunday’s demonstration. There is no sign that the opposition leaders intend to heed this call. When asked why not, Arseny Yatsenyuk apparently bleated something about the Ukrainian people being the leader–not overly helpful when the Ukrainian people have just faced the gravest threat to their constitutional rights since independence. It remains unclear even whether the law passed by the ruling majority in November really can exclude Udar Party leader Vitaly Klitschko from the presidential race.
Whether or not the disturbances on Hrushevsky Street were initiated by specially commissioned provocateurs, after last week’s legislative coup, they were very widely predicted. The results of continued failure to prepare adequately for the 2015 elections, including intelligent methods of ensuring informed choice; preventing concealment and manipulation of information, as well as resistance to vote-buying, are no less foreseeable.