Glimpses Of Presidential And Judicial Power In Ukraine Under The Presidency Of Victor A Yushenko
A Character of this Article is Informative since a Goal of this Article is: To show that Ukraine has a diversified system of legislation for national awards that every president of Ukraine must follow when he confers the title of Hero of Ukraine.
Summary of the Article: Ukraine has a a legal framework for awards recognizing deserving Ukrainians.
Former president (in 2004 up to 2009) of Ukraine Yushenko (who is no longer the president) groundlessly issued a Ukase awarding Bandera the title of Hero of Ukraine posthumously with investiture of the Order of the State made of pure banking gold.
President Yushenko later gave this award to Bandera's grandson unlawfully which damaged the dignity of the people of Ukraine.
Body of the Article is, as it follows: Stephan Bandera was born on 15 October 1909 in Stariy Ugriniv in Galicia, a subject of the then Austo- Hangarian empire and was , one of the leaders of the Organization of Ukrainian Nationalists(OUN) acting in Western Ukraine .
In the former USSR.
the mass mediaidentified Bandera as a very active leader of the UNO that instead of fighting the Nazis, assassinated Russian soldiers liberating the Ukrainian Socialist Republicï?from the Nazis during the Second World War.
Today some Russian and Ukrainian historians support this argument.
Newspapers and books suggest that Bandera, believing that Ukraine should belong only to Ukrainians, ordered his troops to kill Russian and Polish families living in the territory of the Western Ukraine.
After the end of the Second World War Bandera's band groups contined the policy of such killings.
After the Second World War Soviet authorities authorized Bandera's assasination by the KGB in Munich, West Germany on 15 October 1959.
On 20 January 2010, just pror to the presidential elections, President Viktor A.
Yushenko issued his Ukaseï?§ â??46\2010 reading: "Due to the firmness of his spirit in the cause of upholding the national ideal"; for showing heroism and self-sacrifice in his struggles for an Independent Ukrainian State, I am ordering: "To confer on Stephan Andryevich Bandera the title of the Hero of Ukraine and reward him with the Order of the State posthumously".
Such a presidential Ukase caused mixed reactions both in Ukraine and outside its borders.
Many parts of the Ukrainian community said they supported rewarding Bandera with the title of national Hero, but others- definitely did not.
Because of this the Association of Independent Jurists and Journalists 'The Democratic Space,' decided to investigate the presidential Ukase and the legal grounds both for the edict and against it.
The Association of Independent jurists and journalists 'The Democratic Space' is a community organization founded in Kirovograd, Ukraine under Article 36 of the Constitution of Ukraine In its charter, 'the Democratic Space' makes legal and social analyses of parliamentary statutes, presidential edicts and other legislation in Ukraine, paying particular attention to their legality and their conformity with International Human Rights'Law.
This particular research project was not directed into the history of events, but into the conformity of the Ukase to the applicable standards established by current Ukrainian Law.
The current Ukrainian laws that apply to this are: 1.
A Ukase issued by the former president Kuchma of Ukraine, dated 19 February 2003 #138\2003, "On the Order of Submitting for award and for an investiture with the State Rewards of Ukraine.
" 2.
The Law of Ukraine dated 16 March 2000, "On The State Rewards of Ukraine".
3.
A Statute, "Of the Title of The Hero of Ukraine"( confirmed by the Ukase of the former president Kuchma of Ukraine on 02 December 2002 #114\2002.
) Examination by the Association's president determined the following.
The edicts of the former president Kucma mentioned above were not changed nor in any way amended by the next president Victor A.
Yushenko that is, they were currently in force on the date Yushenko issued his Ukase regarding Stephan Bandera.
We find a good basis in Ukrainian law regulating the manner of conferring the title of hero.
Note that Article 6 of the law(above), 'governing the state rewards of Ukraine' reads: "A title of the Hero of Ukraine shall be conferred on the citizens of Ukraine due either to their heroic deeds or to their notable works.
" Bandera's heroic deeds do not relate to Ukraine, because Ukraine as such did not exist that period of time.
Bandera could not have been a Ukrainian citizen at that time, and so did not comply with the requirements of Article 6.
In defining legal grounds for conferring state rewards, this law in Article 4 sends us back to the Statute 'Of the Title of the Hero of Ukraine', saying: Statutes and Regulations concerning state rewards shall define the legal grounds for such rewards".
This Statute was confirmed by an edict issued on 02 December 2002 by President Leonid D.
Kuchma #114\2002, that foresees in Article I, clause1 that "a title of the Hero of Ukraine shall be conferred on the citizens of Ukraine due to their heroic deeds or notable labor efforts.
" Clause 8 of Section II reads: "Submissions petitioning to confer a title of The Hero of Ukraine shall be presented to the president of Ukraine by the Supreme Council of Ukraine, by the Attorney General of Ukraine, by other Central Organs of the Executive power in Ukraine and also by the Commission of the State Rewards and of Heraldry of Ukraine".
Since the Ukase by Youshenko does not contain in its text legal grounds substantiating a necessity and reasons for conferment of a title of the Hero of Ukraine on Bandera, one may soundly admit that such submissions had not been presented to Yushenko by any of these institutions.
Internet searches have also failed to substantiate that the necessary institutions presented these submissions.
To crown it all, the specific lists that had to precisely enumerate Bandera's services as required by Clause 9 of Article II of Kuchma's Ukase of 19 February 2003 were not presented to President Yushenko either.
In his article: 'The Crimea is in shock, Lvov is pleased ( in theUkrainian newspaper "Segodnya" (dated 28 January 2010) Boris Oleynic, Head of the Commission of the State Rewards and of Heraldry of Ukraine did not indicate he had presented to President Yushenko a submission petitioning him to confer the title of The Hero of Ukraine on Bandera.
This is substantiation that President Yushenko was not in compliance with the proper legal procedure when he conferred state rewards on Bandera, and that in the long run the award of these honors was illegal.
In judicial analysis, heroism in historical events can be legitimately investigated, but not for its history and above all not for its politics.
This means that facts of law concerning heroism in the deeds of historical persons have to be determined by legal means in accordance with the processes defined in the Constitution of Ukraine.
Article 24 of the Constitution reads: "Jurisdiction of courts extends over all legal relationships that appear in the state.
" This means that the legal determination of Bandera's heroic deeds depends on recognition by the court.
The Security Council of Ukraine( formerly the KGB) could have submitted its application with proofs: archival documents( to which the Security Council has access) including statements and explanations from living witnesses of those events.
Unfortunately that has not been done, and so the necessary legal grounds required to confer the title of Hero of Ukraine upon Bandera have not been established; we have only the subjective desire of Yushenko.
Only a research of the evidence of Bandera's 'heroic' deeds that results in a proper judicial judgment could have a valid legal right to speak to the heroism and self-sacrifice of Bandera, in his efforts toward an Independent Ukrainian State.
As a result the presedential Ukase declaring the heroism and self-sacrifice of Bandera is invalid and illegal.
More over, through this Ukase by Yushenko, Bandera was awarded the Insignia of the State.
Pursuant to Article 6 of the Law of Ukraine 'On the state Rewards of Ukraine' mentioned above,an Insignia of the State shall be conferred for a performance of notable achievements.
Whether Bandera has duch achievements in the name of the as yet unborn state of Ukraine has not been mentioned in any historical document, and this is also not mentioned in the presidential statement.
This means that this Ukase through which Bandera was awarded the Insignia of the State is groundless.
In conclusion the Association of Independent Jurists and Journalists "The Democratic Space" concluded that the Ukase issued by President Yushenko #46\2010 of 20 January 2010 concerning a conferment on Bandera the title of The Hero of Ukraine is invalid..
An Insignia of the State, which was awarded to Bandera posthumously on the 20th of January 2010 was personally handed to Bandera's grandson by President Yushenko.
This action by a president of Ukraine looses both moral and legal grounds by Article 5 of the Law of Ukraine "On the State Rewards of Ukraine" which foresees that the Insignia of the State had to be conferred on Bandera alone and could not be given to his grandson.
This is also mentioned in the Statute 'Of the Hero of Ukraine', in which the question of rewarding the deceased are decided in this way: "After a death of a Hero of Ukraine rewarding attributes remain as a memory with the family of the deceased.
" This has to be understood as meaning that when a living person who was previously confirmed Hero of Ukraine dies, then and only then can the attributes of his award remain as a memorial with his relatives.
Otherwise they have to remain with a museum of the State..
In our case Bandera was not a Hero of Ukraine when he lived.
Hence the Insignia of the State that was awarded him by the President of Ukraine could not be a gift to Bandera's grandson.
As a result of this, the Association came to the conclusion that lawful and valid grounds did not exist for President Yushenko to issue his Ukase #45\2010, concerning conferring a title of Hero of Ukraine on Bandera and rewarding him with the Isignia of State.
Therefore this Ukase had to be repealed and the former President of Ukraine Yushenko had to reimburse the State damages caused by an unlawful delivery of the Insignia of the State to Bandera's grandson.
The state's loss is financialand material because this award was made of pure gold that was the property of the people of Ukraine, that is of the Ukrainian Republic.
On 08 March 2010 this opinion of the Association was sent to newly elected President of Ukraine Mr.
Victor Yanukovich who was asked on the basis of these legal grounds to annul the Ukase issued by Peresident Yushenko.
On 02.
April 2010 a Donetsk circuit court having considered an attorney's law suit, recognized this Ukase issued by President Yushenko to be illegal and liable to be repealed.
This judgment was stipulated on the basis of the fact that a title of the Hero of Ukraine could only be conferred on citizens of Ukraine, but Bandera died in 1959 prior to the foundation of the Independent Ukrainian State.
In June 2010 a Donetsk Appellate Administrative court issued a decision, after which twenty appeals remained with it without resolution.
The judgment of the First Instance Court stands without any changes.
Former President of Ukraine Yushenko and the grandson of Stephan Bandera have appealed all these judicial decisions before the Supreme Administrative Cout of Ukraine A court session to examine these appeals has not yet been appointed.
Summary of the Article: Ukraine has a a legal framework for awards recognizing deserving Ukrainians.
Former president (in 2004 up to 2009) of Ukraine Yushenko (who is no longer the president) groundlessly issued a Ukase awarding Bandera the title of Hero of Ukraine posthumously with investiture of the Order of the State made of pure banking gold.
President Yushenko later gave this award to Bandera's grandson unlawfully which damaged the dignity of the people of Ukraine.
Body of the Article is, as it follows: Stephan Bandera was born on 15 October 1909 in Stariy Ugriniv in Galicia, a subject of the then Austo- Hangarian empire and was , one of the leaders of the Organization of Ukrainian Nationalists(OUN) acting in Western Ukraine .
In the former USSR.
the mass mediaidentified Bandera as a very active leader of the UNO that instead of fighting the Nazis, assassinated Russian soldiers liberating the Ukrainian Socialist Republicï?from the Nazis during the Second World War.
Today some Russian and Ukrainian historians support this argument.
Newspapers and books suggest that Bandera, believing that Ukraine should belong only to Ukrainians, ordered his troops to kill Russian and Polish families living in the territory of the Western Ukraine.
After the end of the Second World War Bandera's band groups contined the policy of such killings.
After the Second World War Soviet authorities authorized Bandera's assasination by the KGB in Munich, West Germany on 15 October 1959.
On 20 January 2010, just pror to the presidential elections, President Viktor A.
Yushenko issued his Ukaseï?§ â??46\2010 reading: "Due to the firmness of his spirit in the cause of upholding the national ideal"; for showing heroism and self-sacrifice in his struggles for an Independent Ukrainian State, I am ordering: "To confer on Stephan Andryevich Bandera the title of the Hero of Ukraine and reward him with the Order of the State posthumously".
Such a presidential Ukase caused mixed reactions both in Ukraine and outside its borders.
Many parts of the Ukrainian community said they supported rewarding Bandera with the title of national Hero, but others- definitely did not.
Because of this the Association of Independent Jurists and Journalists 'The Democratic Space,' decided to investigate the presidential Ukase and the legal grounds both for the edict and against it.
The Association of Independent jurists and journalists 'The Democratic Space' is a community organization founded in Kirovograd, Ukraine under Article 36 of the Constitution of Ukraine In its charter, 'the Democratic Space' makes legal and social analyses of parliamentary statutes, presidential edicts and other legislation in Ukraine, paying particular attention to their legality and their conformity with International Human Rights'Law.
This particular research project was not directed into the history of events, but into the conformity of the Ukase to the applicable standards established by current Ukrainian Law.
The current Ukrainian laws that apply to this are: 1.
A Ukase issued by the former president Kuchma of Ukraine, dated 19 February 2003 #138\2003, "On the Order of Submitting for award and for an investiture with the State Rewards of Ukraine.
" 2.
The Law of Ukraine dated 16 March 2000, "On The State Rewards of Ukraine".
3.
A Statute, "Of the Title of The Hero of Ukraine"( confirmed by the Ukase of the former president Kuchma of Ukraine on 02 December 2002 #114\2002.
) Examination by the Association's president determined the following.
The edicts of the former president Kucma mentioned above were not changed nor in any way amended by the next president Victor A.
Yushenko that is, they were currently in force on the date Yushenko issued his Ukase regarding Stephan Bandera.
We find a good basis in Ukrainian law regulating the manner of conferring the title of hero.
Note that Article 6 of the law(above), 'governing the state rewards of Ukraine' reads: "A title of the Hero of Ukraine shall be conferred on the citizens of Ukraine due either to their heroic deeds or to their notable works.
" Bandera's heroic deeds do not relate to Ukraine, because Ukraine as such did not exist that period of time.
Bandera could not have been a Ukrainian citizen at that time, and so did not comply with the requirements of Article 6.
In defining legal grounds for conferring state rewards, this law in Article 4 sends us back to the Statute 'Of the Title of the Hero of Ukraine', saying: Statutes and Regulations concerning state rewards shall define the legal grounds for such rewards".
This Statute was confirmed by an edict issued on 02 December 2002 by President Leonid D.
Kuchma #114\2002, that foresees in Article I, clause1 that "a title of the Hero of Ukraine shall be conferred on the citizens of Ukraine due to their heroic deeds or notable labor efforts.
" Clause 8 of Section II reads: "Submissions petitioning to confer a title of The Hero of Ukraine shall be presented to the president of Ukraine by the Supreme Council of Ukraine, by the Attorney General of Ukraine, by other Central Organs of the Executive power in Ukraine and also by the Commission of the State Rewards and of Heraldry of Ukraine".
Since the Ukase by Youshenko does not contain in its text legal grounds substantiating a necessity and reasons for conferment of a title of the Hero of Ukraine on Bandera, one may soundly admit that such submissions had not been presented to Yushenko by any of these institutions.
Internet searches have also failed to substantiate that the necessary institutions presented these submissions.
To crown it all, the specific lists that had to precisely enumerate Bandera's services as required by Clause 9 of Article II of Kuchma's Ukase of 19 February 2003 were not presented to President Yushenko either.
In his article: 'The Crimea is in shock, Lvov is pleased ( in theUkrainian newspaper "Segodnya" (dated 28 January 2010) Boris Oleynic, Head of the Commission of the State Rewards and of Heraldry of Ukraine did not indicate he had presented to President Yushenko a submission petitioning him to confer the title of The Hero of Ukraine on Bandera.
This is substantiation that President Yushenko was not in compliance with the proper legal procedure when he conferred state rewards on Bandera, and that in the long run the award of these honors was illegal.
In judicial analysis, heroism in historical events can be legitimately investigated, but not for its history and above all not for its politics.
This means that facts of law concerning heroism in the deeds of historical persons have to be determined by legal means in accordance with the processes defined in the Constitution of Ukraine.
Article 24 of the Constitution reads: "Jurisdiction of courts extends over all legal relationships that appear in the state.
" This means that the legal determination of Bandera's heroic deeds depends on recognition by the court.
The Security Council of Ukraine( formerly the KGB) could have submitted its application with proofs: archival documents( to which the Security Council has access) including statements and explanations from living witnesses of those events.
Unfortunately that has not been done, and so the necessary legal grounds required to confer the title of Hero of Ukraine upon Bandera have not been established; we have only the subjective desire of Yushenko.
Only a research of the evidence of Bandera's 'heroic' deeds that results in a proper judicial judgment could have a valid legal right to speak to the heroism and self-sacrifice of Bandera, in his efforts toward an Independent Ukrainian State.
As a result the presedential Ukase declaring the heroism and self-sacrifice of Bandera is invalid and illegal.
More over, through this Ukase by Yushenko, Bandera was awarded the Insignia of the State.
Pursuant to Article 6 of the Law of Ukraine 'On the state Rewards of Ukraine' mentioned above,an Insignia of the State shall be conferred for a performance of notable achievements.
Whether Bandera has duch achievements in the name of the as yet unborn state of Ukraine has not been mentioned in any historical document, and this is also not mentioned in the presidential statement.
This means that this Ukase through which Bandera was awarded the Insignia of the State is groundless.
In conclusion the Association of Independent Jurists and Journalists "The Democratic Space" concluded that the Ukase issued by President Yushenko #46\2010 of 20 January 2010 concerning a conferment on Bandera the title of The Hero of Ukraine is invalid..
An Insignia of the State, which was awarded to Bandera posthumously on the 20th of January 2010 was personally handed to Bandera's grandson by President Yushenko.
This action by a president of Ukraine looses both moral and legal grounds by Article 5 of the Law of Ukraine "On the State Rewards of Ukraine" which foresees that the Insignia of the State had to be conferred on Bandera alone and could not be given to his grandson.
This is also mentioned in the Statute 'Of the Hero of Ukraine', in which the question of rewarding the deceased are decided in this way: "After a death of a Hero of Ukraine rewarding attributes remain as a memory with the family of the deceased.
" This has to be understood as meaning that when a living person who was previously confirmed Hero of Ukraine dies, then and only then can the attributes of his award remain as a memorial with his relatives.
Otherwise they have to remain with a museum of the State..
In our case Bandera was not a Hero of Ukraine when he lived.
Hence the Insignia of the State that was awarded him by the President of Ukraine could not be a gift to Bandera's grandson.
As a result of this, the Association came to the conclusion that lawful and valid grounds did not exist for President Yushenko to issue his Ukase #45\2010, concerning conferring a title of Hero of Ukraine on Bandera and rewarding him with the Isignia of State.
Therefore this Ukase had to be repealed and the former President of Ukraine Yushenko had to reimburse the State damages caused by an unlawful delivery of the Insignia of the State to Bandera's grandson.
The state's loss is financialand material because this award was made of pure gold that was the property of the people of Ukraine, that is of the Ukrainian Republic.
On 08 March 2010 this opinion of the Association was sent to newly elected President of Ukraine Mr.
Victor Yanukovich who was asked on the basis of these legal grounds to annul the Ukase issued by Peresident Yushenko.
On 02.
April 2010 a Donetsk circuit court having considered an attorney's law suit, recognized this Ukase issued by President Yushenko to be illegal and liable to be repealed.
This judgment was stipulated on the basis of the fact that a title of the Hero of Ukraine could only be conferred on citizens of Ukraine, but Bandera died in 1959 prior to the foundation of the Independent Ukrainian State.
In June 2010 a Donetsk Appellate Administrative court issued a decision, after which twenty appeals remained with it without resolution.
The judgment of the First Instance Court stands without any changes.
Former President of Ukraine Yushenko and the grandson of Stephan Bandera have appealed all these judicial decisions before the Supreme Administrative Cout of Ukraine A court session to examine these appeals has not yet been appointed.