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Compensation for the crime of Holodomor

12:56, 28-го листопада 2020 · Джерело: institutedd.org

Compensation for the crime of Holodomor
Holodomor (the Manmade Famine) is an officially and legally recognised act of genocide against the Ukrainian nation. This is a huge tragedy which affects both the present day and the historical evolution of different generations. In its course of development the main purpose of today’s society is to demonstrate the inevitability of punishment for this crime, which has a high degree of danger to society.

According to the art. 442, p. 1 of the Criminal Code of Ukraine, the crime “genocide” is defined as action conducted with full awareness and intent to totally or partially eradicate any nation, ethnic, racial or religious group through life deprivation of this group’s representatives, or causing them serious bodily harm; creating the conditions for the group with the goal of its total or partial physical destruction, childbearing decrease or prevention within this group, or forced relocation of children from one group to another.
The provisions of international law are also relevant to this issue. In particular, according to art. 1 of the Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948, the Contracting Parties confirm that genocide, no matter whether it occurs in peacetime or in time of war, constitutes the crime violating international law and which they are committed to prevent and punish for. Also, the art. 2 of this Convention stipulates that the genocide includes the following actions conducted with full awareness and intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
A) the killing of its members,
B) causing serious bodily or mental harm to members of the group,
C) deliberate imposing living conditions that seek to bring its physical destruction in whole or in part,
D) preventing births, or
E) forced transferring of children out of the group to another group.
A very important fact is that on October 31, 2008 the European Convention on the non-applicability of the limitation period to Crimes against Humanity and War Crimes entered into force for Ukraine.
Thus, the issue of legal responsibility for the crime of Holodomor should be an essential component of public policy.
The Ukrainian judiciary has already decided the case on the crime of Holodomor.
In particular, the case nr. 1-33/2010 investigating the crime of Genocide was closed, provided by the Kyiv Court of Appeals decision where it was stated: “To dismiss the criminal case investigating the crime of Genocide in Ukraine in 1932-1933 relating to the citizen 3, citizen 155, citizen 6, citizen 7, citizen 8, citizen 10 and citizen 11, due to their death, who according to the conclusion of the investigating agency - the Investigation General Directorate of Security Service of Ukraine - arranged the genocide campaign intentionally in order to suppress the people’s liberation movement in Ukraine and avert the building and establishment of the independent state of Ukraine, by deliberate imposing of the living conditions that seek to bring physical destruction of the part of Ukrainian national group by means of their pre-planned Holodomor of 1932-1933, which eventually caused death to 3 million 941 thousand of people; that is, they have directly committed the crime according to the art. 442, p. 1 of the Criminal Code of Ukraine (the details of the decision can be found at: https://reyestr.court.gov.ua/Review/9470003).

However, the inevitability of punishment also provides the possibility of compensation for the damage resulting from the crime commitment. According to the Resolution of the Plenum of the Supreme Court of Ukraine № 13 of 02.07.2004, in cases of the crimes which caused the death of the victim, the rights provided by p. 3 and 4 of the art. 49 of the Criminal and Penal Code (1001-05), are delivered to his close relatives. Since p. 11 of the art. 32 of the CPC contains an exhaustive list of such relatives (it includes parents, one of the spouses, children, siblings, grandparents, grandchildren), the courts are not entitled to recognize other persons as victims in these cases. If several of the close relatives of the person who has died claim these rights, they may all be recognized as victims. In this regard, it is important for these people to take active action to ensure that compensation is possible.

It should be noted that this crime was committed by the senior officials of the Soviet Union. Since the Union of Soviet Socialist Republics has ceased to exist as a state, the responsibility must be transferred to the Russian Federation as the official successor to the USSR. One of the documents recognizing the succession of the USSR to the Russian Federation is the letter of the Ministry of Foreign Affairs of the Russian Federation dated January 13, 1992 "On the exercise of rights and obligations arising from the international treaties concluded by the USSR”.

Today there is a trend of developing a network of descendants of the Holodomor. Thus, it is important to strengthen communication cooperation in this direction, as this is the way to implement concrete actions in order to achieve the compensation for the crime of Holodomor.

However, in this case, a high level of cooperation at the interstate level is required, as compensation is possible through the implementation of international diplomatic efforts at the corresponding international court.
The examples of compensation for crimes against humanity include the following. Germany is still paying compensation to the Holocaust victims, starting from 1953.

In order to initiate such a process on the part of Ukrainians who have suffered from genocide, a corresponding regulatory framework has been created in the national and international legislation. In particular, such legislative acts in Ukraine are the following:

  • Law of Ukraine "On the Holodomor of 1932-1933 in Ukraine"
  • Law of Ukraine "On Rehabilitation of the Victims of Repressions of the Communist Totalitarian Regime of 1917-1991";
  • Law of Ukraine "On Condemnation of Communist and National Socialist (Nazi) Totalitarian Regimes in Ukraine and Prohibition of Propaganda of Their Symbols", etc.

An important factor for promoting compensation for the victims and descendants of the Holodomor can be the inter-state dialogue between, for example, Germany and Israel in the context of the Holocaust, in particular the Reparations Agreement between Israel and the Federal Republic of Germany of 10 September 1952.

However, it seems obvious that there will be no such contractual process between Ukraine and the Russian Federation. In this case, it is necessary to file the interstate lawsuits that would help to establish compensation for these losses.

The human suffers and grief caused by the Holodomor cannot be measured in any sum of money. However, actions for compensation in this direction will prevent the next governments from taking similar steps. Moreover, the strengthening of Ukraine's national identity is possible, inter alia, through the recognition of these crimes at the international level.

Володимр Кістяник
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