|The debate on law drafts on 'Holodomor Denial' in Ukraine|
|Sunday, 04 March 2012|
This is an extract from the article published in 2010 in: Postdiktatorische Geschichtskulturen in Europa. Bestandsaufnahme und Forschungsperspektiven. Wallstein Verlag: Gottingen, 2010.|
Dr., Prof., Georgiy KASIANOV, Head, Department of Contemporary History and Politics Institute of History of Ukraine, Kiev
The Holodomor (hunger plague) is a metaphorical term which covers events of 1932 - 1933 Great Famine in Ukraine. In 1990s and beginning of 2000s the term got wide public circulation and was legitimized by presidential and parliamentary decrees and then got international recognition. According to academic estimates, Ukraine lost about 3,5 - 4 millions of population in 1932 - 1933.
On 2 November 2006 President Yushchenko submitted a draft Law of Ukraine “On the Holodomor of 1932–33” for consideration by the Verkhovna Rada. The draft consisted of six points, three of which had overt political ramifications: Art. 1 defined the “Holodomor of 1932–33 in Ukraine as genocide of the Ukrainian nation”; Art. 2 forbade “the denial of the fact of the Holodomor of 1932–33 in Ukraine”; and Art. 6 established “administrative responsibility for public denial of the Holodomor of 1932–33 in Ukraine.” It is worth noting that by this point even the most hardheaded left-wing politicians no longer denied the famine of 1932–33 as a fact; commemorative dates and practices had already been established; and the fact of the famine of 1932–33 was an element of Ukrainian history courses in schools. It may therefore be assumed quite credibly that this initiative of the president’s had the purely political goal of anticipatory discreditation of political opponents by associating them with amoral political practices.
As planned, the bill drew objections from the president’s political opponents, mainly with regard to the appropriateness of the term “genocide” to the criteria to which the president referred and the advisability of establishing administrative responsibility for denying the famine of 1932–33 as a fact. Three deputies from the Party of Regions registered their own bill, which opposed the president’s bill primarily with regard to the points concerning genocide and responsibility for denying the famine of 1932–33 as a fact.
On 28 November 2006 there was a dramatic debate on the president’s bill and the alternative version. All participants in the debate once again openly invoked the current political situation in order to make the famine of 1932–33 a topical issue. Representatives of the opposition stressed the tragedy’s association with the current difficult situation of the Ukrainian nation, while their adversaries insisted that the “campaign” in support of the bill was a form of direct pressure on political opponents.
As was to be expected, the president’s bill was voted down by the “anti-crisis coalition” (the Party of Regions, socialists, and communists), while the alternative version was defeated by the opposition (the People’s Union “Our Ukraine” and the Bloc of Yulia Tymoshenko). This result showed that in the prevailing political context the idea of “consolidation” around the famine of 1932–33 declared by the president actually aroused discord and divided the political forces representing various regions of Ukraine. The head of the Verkhovna Rada, Oleksandr Moroz, emerged as a peacemaker by proposing a compromise version of the bill (approved in consultation with the president) that retained the article defining the famine of 1932–33 as an act of genocide, while the article on responsibility appeared in the following redaction: “Public denial of the Holodomor of 1932–33 in Ukraine is deemed an insult to the memory of the millions of victims of the Holodomor and demeaning to the dignity of the Ukrainian people and is contrary to law.” This version also included the point according to which the famine was directed not only against “part of the Ukrainian people” but also against “other peoples of the USSR.” Consequently, the law was adopted with the support of the opposition factions and the socialist faction. Only two deputies from the Party of Regions—H. Herman and Taras Chornovil, who played the important role of “nationally conscious Ukrainians” in the party’s public relations—voted for Moroz’s version of the bill, thereby formally opposing the party line.
The adoption of the law turned out to be a mere prelude to more radical actions on the part of the president and his supporters in parliament. On 21 December 2006 two deputies from the opposition factions, Yaroslav Kendzior and R. Chubarov, registered a bill in the appropriate committee of the Verkhovna Rada on introducing amendments to the Criminal Code of Ukraine (concerning responsibility for public denial of the fact of the Holodomor of 1932–33 as genocide of the Ukrainian people).
The purpose was no longer to criminalize denial of the famine of 1932–33 as a fact but denial that it constituted genocide. Considering that scholarly discussion is still going on, notably at the international level, on the appropriateness of this term with regard to the famine of 1932–33, this initiative seemed ambiguous, to put it mildly. What made it especially piquant was that the two deputies who initiated the bill were former dissidents for whom the struggle for freedom of speech was no abstraction but part of their own biographies. In March 2007 deputies from the Party of Regions demanded that the bill be sent back for revision, but it was withdrawn in connection with the fact that the president himself had come forward with this legislative initiative.
On 28 March 2007 President Yushchenko submitted a bill “On Introducing Amendments to the Criminal Code and the Code of Criminal Procedure of Ukraine (Concerning Responsibility for Denial of the Holodomor).” The president proposed to introduce criminal responsibility for “denial of the Holodomor of 1932–33 as genocide of the Ukrainian people and of the Holocaust as genocide of the Jewish people.” Such public denial, as well as the preparation and dissemination of material to that effect, was to be punishable by a fine of 100 to 300 times the minimum individual income before tax or by a term of imprisonment up to two years. The same actions committed by civil servants, or repeated offenses, were to be punishable by a term of imprisonment up to four years. The amendments were to be made to Art. 442, “Genocide,” of the Criminal Code of Ukraine. In formal terms, the intention was probably to concretize the section of the previous law (“On the Holodomor of 1932–33”) concerning the illegality of denying the famine of 1932–33.
Informally, the point was once again to establish responsibility not for denying the famine of 1932–33 as a fact but its treatment as genocide. The point about civil servants was probably an indication to the local authorities in the eastern and southern regions, who made a frequent practice either of simply ignoring the president’s instructions on honoring the memory of the victims or of sabotaging them, or even going so far as to oppose local civic initiatives with regard to commemorations. The addition of the point on the Holocaust was clearly intended to legitimize the initiative on the basis of world practice (the bill made direct reference to laws on Holocaust denial in Europe, the United States, and the Near East).
An explanatory note accompanying the bill asserted that “the adoption of the Law will help consolidate the Ukrainian people and citizens of all nationalities around the idea of establishing social intolerance for all manifestations of violence, increasing respect for the lives, rights and freedoms of citizens, and reinforcing inter-ethnic harmony and civil peace in Ukraine.” The authors of the note did not explain how administrative and criminal prosecution for interpretations of the famine of 1932–33 that the authorities considered incorrect would help reinforce inter-ethnic harmony and civil peace in the land.
This portion of the argumentation in favor of criminalizing denial of the Holodomor and the Holocaust as acts of genocide becomes even more interesting in light of materials posted on the official website of the president of Ukraine. A noteworthy statement is the following: “The Holodomor was greatest in the regions where the electoral base of the anti-crisis coalition is concentrated. However, in view of insufficient information, Soviet propaganda, and the unclear position of coalition leaders, residents of those territories do not understand the true consequences of this tragedy. According to survey data, only 40 percent of respondents in the East (of those who expressed an opinion) agree that the Verkhovna Rada should adopt legislation recognizing the Holodomor of 1932–33 as an act of genocide against the Ukrainian people. In the South the figure is 64 percent, which is also lower than the average throughout Ukraine (71.4 percent).”
The president’s initiative aroused opposition on the part of lawyers on the staff of the Verkhovna Rada. According to a finding of the Rada’s Main Administration of Scientific Expertise, the initiative sought to criminalize actions that “are a form of expression of particular views and convictions.” The Constitution of Ukraine provided for limitations on that right only in the interests of national security, territorial integrity, or civil order for the purpose of preventing disturbances or crimes, dealing with threats to public health, protecting the reputation or rights of others, preventing the dissemination of confidential information, or upholding the authority and impartiality of jurisprudence, according to Art. 34. The legal commentary emphasized that “the mere fact of a person’s expression of disagreement (even publicly) with a provision of one law or another or, all the more, with the interpretation of a particular fact or historical event cannot be considered a socially dangerous action; hence we discern no appropriate basis for establishing criminal responsibility for it.”
Although the president deemed the bill urgent, the appropriate committee of the Verkhovna Rada placed it on the agenda for consideration in May 2007. However, two days after introducing the bill, President Yushchenko signed a decree on the dissolution of parliament. The political crisis became acute, and the question of the famine of 1932–33 also became politicized to the utmost. For evidence of this, one need only note that a constituent of the political compromise package proposed by Yushchenko was the adoption of a law on criminal responsibility for denying the Holodomor and the Holocaust as genocide (notably, along with laws on the opposition and on constitutional amendments).
In October 2007, following pre-term elections to the Verkhovna Rada, when prospects appeared for the formation of a pro-presidential majority in parliament, President Yushchenko publicly declared that he would resubmit the bill for parliament’s consideration. On 23 November 2007, on the eve of commemorations of the famine of 1932–33, the bill was withdrawn, probably because the newly elected Verkhovna Rada began its deliberations that day.
On 7 December 2007, after the formation of a nominally pro-presidential coalition in the Verkhovna Rada, President Yushchenko submitted thirteen urgent bills for consideration in parliament. These included the above-mentioned bill on criminalizing denial of the Holodomor and the Holocaust as genocide—an exact copy of the previous bill. Once again, the bill concerned denial of the Holodomor and the Holocaust as facts of genocide.
The explanatory note to the bill also argued the case for criminalizing such denial by citing “the need to anticipate such behavior, and thus to eliminate it as a social danger, preventing injury to natural and legal persons, society, and the state.” The note failed to explain how an interpretation of the Holodomor differing from the one proposed by President Yushchenko could inflict these various kinds of injury on the parties listed in the bill. It is also worth noting the contradictions in the text, which by now had become commonplace—in one passage, there was mention of denial of the Holodomor and the Holocaust as such; in another, of their denial as acts of genocide. Whether this was done deliberately or in error, questions inevitably arise concerning the responsibility of politicians for their actions (or lack of same).
In January 2008 the president’s bill was duplicated at the initiative of two deputies of his faction, Our Ukraine — People’s Self-Defense Bloc. The former functionary of the CC CPU and former minister of foreign affairs of independent Ukraine, Borys Tarasiuk, and the former dissident Yaroslav Kendzior submitted a bill to the Verkhovna Rada “On Introducing Amendments to the Criminal Code of Ukraine” (On Responsibility for Public Denial of the Fact of the Holodomor of 1932–33 as Genocide of the Ukrainian People). Deputies from the “democratic coalition” proposed the introduction of penalties for the action described in the title of the bill and “for the preparation of materials containing public denial of this fact with the intention of disseminating them, or the dissemination of such materials”: arrest for a term up to six months or imprisonment up to three years.
In the text of their explanatory note the authors used different formulations in different passages: one passage concerned the simple denial of the Holodomor as a fact, another the denial of the Holodomor as genocide, and a third the “denial of the fact of genocide of the Ukrainian people.”
These efforts were accompanied by massive international campaign headed by President Yushchenko's office for recognition of Holodomor as an act of genocide (2007 - 2009). These attempts were effectively blocked by Russia at the level of international organization (UN, European Parliament, PACE), however, the parliaments of 13 countries have passed resolutions recognizing Holodomor as an act of genocide.
Dr., Prof., Georgiy Kasianov] email@example.com
 “Prezydent Ukraīny vnis na rozhliad parlamentu Zakon Ukraīny ‘Pro Holodomor 1932-1933 rokiv v Ukraīni’” (www.president.gov.ua/news/data/print/11457.html).
 Zakon Ukraīny “Pro Holodomor 1932-1933 rokiv v Ukraīni” (http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi).
 http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=29140; accessed 20 October 2007.
 http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=29753; accessed 20 October 2007.
 Explanatory note to draft Law of Ukraine “Pro vnesennia zmin do Kryminal'noho ta Kryminal'no-protsesual'noho kodeksiv Ukraīny,” p. 2 (author’s archive). The document was copied from the official site of the Verkhovna Rada of Ukraine (www.gska2.rada.gov.ua/pls/zweb_n?webproc4_1?id=&pf3511=29881), but there is no access to it at present.
 The minimum individual income before tax was 17 UAH per month; hence the amount of the fine was between 1,700 and 5,100 UAH, or $340–1,020 US (at an exchange rate of 5.05 UAH per $1 US).
 Explanatory note to draft Law of Ukraine “Pro vnesennia zmin do Kryminal'noho ta Kryminal'no-protsesual'noho kodeksiv Ukraīny,” p. 2 (author’s archive).
 As noted, there is a long history, going back to the days of Leonid Kuchma, of ignoring or failing to carry out presidential directives on state commemorative actions with regard to the Holodomor on the part of local state administrations. More research would be needed to establish in which instances this was due to lack of executive discipline or political motives. Whatever the case, in Kuchma’s time no particular attention was paid to the execution of ideological directives and decrees. Under Viktor Yushchenko, when the “politics of history” became an important component of presidential policy, the situation changed, but it may be assumed that the general level of executive discipline in agencies subordinate to the president remains low.
 Explanatory note to draft Law of Ukraine “Pro vnesennia zmin do Kryminal'noho ta Kryminal'no-protsesual'noho kodeksiv Ukraīny” (author’s archive).
 This was the name adopted by the parliamentary coalition (the Party of Regions, communists, and socialists) that arose in June 2006 as an alternative to the “Orange coalition” that failed to take shape. The creation of the “anti-crisis coalition” led to the formation of a parliamentary majority and government consisting of opponents of President Yushchenko.
 “Vyznannia Holodomoru 1932-1933 rokiv aktom henotsydu ukraīns'koho narodu” on the official site of the President of Ukraine (http://www.prezident.gov.ua/content/p_150_18.html; accessed 31 October 2007).
 Finding concerning draft Law of Ukraine “Pro vnesennia zmin do Kryminal'noho ta Kryminal'no-protsesual'noho kodeksiv Ukraīny,” pp. 1–2 (author’s archive).
 “Iushchenko vnis do VR zakonoproekt pro vstanovlennia kryminal'noī vidpovidal'nosti za zaperechennia Holodomoru,” Korespondent.net, 28 March 2007 (http://ua.korrespondent.net/main/69866).
 “Iushchenko perezavantazhyv matrytsiu,” Ukraīns'ka pravda, 25 April 2007 (http://www.pravda.com.ua/news/2007/4/25/58014.htm).
 Explanatory note to draft Law of Ukraine “Pro vnesennia zmin do Kryminal'noho ta Kryminal'no-protsesual'noho kodeksiv Ukraīny” (http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=30993; accessed 24 January 2008).
 http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=31473; accessed 24 January 2008.
 Lithuania, Poland, Georgia, Ecuador, Columbia, Paraguay, Peru, Canada (both chambers), Australia (both chambers, twice), USA (Congress), Estonia, Hungary, Mexico — the status of the documents was different, from commemorative statements to special resolution. The word 'genocide 'was used.