“Prava Ludiny” (human rights) monthly bulletin, 2011, #07

As reported, the Ministry of Education has slashed government funding for a number of Master’s programmes offered by the Kyiv-Mohyla Academy in Kyiv, including those in the School of Journalism and for the social work course. The cuts were announced only after applications for places had closed.  The Kyiv-Mohyla Academy staff are convinced that this is revenge for the stand taken by the university leadership against the changes brought in by controversial Minister Dmytro Tabachnyk and against corruption.

In an interview to the information agency UNIAN, President of the National University of “Kyiv-Mohyla Academy” [NaUKMA] Serhiy Kvit stressed that the courses for which funding has been cut – the Mohyla School of Journalism and the Professor Poltavets School of Social Work are unique. He says that social work first appeared at the Kyiv-Mohyla Academy.  “Our graduates took part in creating this field in Ukraine. We are the main experts here. Instead of consulting with the School of Social Work on how to best develop this specialized field, the Ministry of Education is trying to destroy it.

We fought for a long time to receive an original licence for our school of journalism and for the first time began taking students for the Master’s programme who chose a journalist career after any Bachelor’s degree. All our graduates remain in the field. That is a good western standard. In addition, NaUKMA has the best technical backup in the country. We work in close cooperation with British, American, German and Spanish partners and offer the only PhD programme in Ukraine on Mass Communication. Together with the Rinat Akhmetov Charitable Foundation, the Mohyla School of Journalism does not just teach students, but also  journalists on using new media. Incidentally there are no such courses in Western Europe. From next year we will also be teaching lecturers from journalism faculties throughout the country. As well as our lecturers, a number of specialists from the USA and Western Europe teach at the Mohyla School of Journalism”.

He points out that despite assurances throughout the year, there have also been serious cuts on Bachelor’s programmes.

Serhiy Kvit was asked if he sees the cuts as Tabachnyk making them pay for their criticism of him, and for their position.

“I would call our position normal expert activity. NaUKMA has its own views on many important issues including on the new draft Law on Higher Education.  We believe that it should be based on the principle of university autonomy. Our professional position will not waver in accordance with the size of government funding.”  He adds that from a financial point of view it is not a disaster. Graduates are now collecting money for grants to pay for the studies of the best students who can’t afford to pay the fees, and they will also increase the number of people on contract basis.

On the other hand, they will inevitably be able to take less talented students from lower-income families, rural areas, etc. “Thus from the social point of view as well as in terms of upholding State interests, such steps by the Ministry have no justification. That makes me most angry”.

He notes that the whole system is archaic.  Each year they’re asked about their plans on intake.  They prepare plans, fill in forms, and then the figures come bearing no relation to what they’ve done. He calls the distribution “unclear and lacking in transparency.  Nobody knows what criteria are presently used for deciding on government funded places.”  He notes that it cannot be the university’s rating – if it was, NaUKMA would get more and more each year, since “the market needs our graduates”.

As far as he knows, deans of other universities are also unhappy, particularly over the lack of transparency. However they are all keeping quiet.  He says that the information reported here about cuts at the Lviv University was disclosed due to active work by journalists.

Asked about the promises from students to intensify protest against Tabachnyk’s draft Law on Higher Education, and whether lecturers will join in, he spoke of “demands of the genre”. He does not interfere in student protest, but nor does he take part in them as they are student protests.  He says it is interesting that students express more suspicion to the proposed version with respect to potential corruption abuses.

“From the legal point of view such suspicions are not always properly substantiated, however from the practical point of view, students know better than anybody what abuses can occur in our system of education.

He notes that the Ministry’s version is already not that which emerged in November 2010 (when there was widespread protest – translator). “It has in fact undergone some change. Even some of our proposals have been taken into account. Yet the content of the document remains essentially aimed against university autonomy. There are over 100 statements against the Ministry, what rights it has, what it should do, and how to approach it. It’s basically a law about the ministry, and not about universities. The principles of academic autonomy and inter-disciplinary activity remain in doubt.”

With respect to student protests:

They are listened to, he says, and adds that it was the student protests last year that played an important role in preventing the draft Law on Higher Education getting to parliament and being voted into law.  “Yet maybe even that is not the main thing. The principle of student self-government is steadily forming. Students are having ever greater impact on university life, standing up for their rights. It’s important that another kind of young person is forming – responsible, thinking and concerned”.

Abridged from the interview taken by Anna Yashchenko

Arkady Bushchenko, Kharkiv Human Rights Group Legal specialist and Head of the Board of the Ukrainian Helsinki Human Rights Union will be representing former Prime Minister Yulia Tymoshenko in the European Court of Human Rights.

Arkady specializes in human rights, criminal and administrative cases. Over the last 10 years he has represented applicants in around 50 cases in Strasbourg, and has not lost any.

In the Case of Afanasyev v. Ukraine from 5 April 2005, the Court found that there had been a violation of Article 3 (prohibition of torture and ill-treatment).  In the more recent case of Lazarenko v. Ukraine, the prosecution case had been built on a confession obtained through the use of torture.

Arkady Bushchenko is quoted as having told the newspaper Komsomolskaya Pravda in Ukraine that he regards the Tymoshenko case as one that cannot be lost.

“It is interesting from the legal point of view which is why I accepted it. It is bad luck to guess how a trial will go, but I think that during the court proceedings we will present pretty serious arguments.”

The time frame for examination of cases can vary from several months to several years, however the Court plans to complete its consideration by the end of autumn.

“I hope that we will receive the European Court judgement in two or three months. We are for the moment interested in the judgement itself, it is not a question of material compensation.” Arkady Bushchenko explained. 

According to a study carried out by the Democratic Initiatives Foundation, an absolute majority of those asked see the prosecution of former Prime Minister and leader of BYUT, Yulia Tymoshenko as a demonstration of political repression and selective justice.  Out of the 52 respondents 40 called the case repression, and not one viewed it as an example of just judicial proceedings.

Among reasons suggested for criminal proceedings against Yulia Tymoshenko, the most frequently mentioned was an attempt by those now in power to prevent her taking part in the next elections. Most also saw it as an attempt to deflect attention from current socio-economic problems, while at the same time placing the blame for problems on the previous government.

The 52 respondents who included prominent journalists, medial lawyers, human rights activists and political analysts,  were asked:

What in your opinion was the real reason for initiating criminal proceedings against Yulia Tymoshenko?  (mark all that you consider important)

The respondents gave a generally negative assessment of the likely consequences of the trial of Tymoshenko for the internal political situation in Ukraine. The overwhelming majority believe that this trial will lead to the collapse of the justice system and undermine people’s faith in it. Only one person expressed the opposite view.

Most viewed as negative the influence of the courts on democratic processes, linked with an increase in authoritarian trends. Only one person thought that democracy would become stronger as a result of the trial. There was a split regarding the likely influence of the trial on the development of civil society in Ukraine: some saw it leading to it becoming more active while others expected no significant impact.

An absolute majority are convinced that the trial will not have major consequences for the Party of the Regions Batkivshchyna and the opposition as a whole. However among those respondents who believed there was an influence, most think that the trial will lead to a fall in support for the ruling Party of the Regions and growth in support for the opposition Batkivshchyna Party (21 respondents) while at the same time a fall in the role of the opposition as a whole.

The effect on international relations was seen as being extremely negative. Not one respondent predicted any positive changes to Ukraine’s international image, the negotiations between Ukraine and the EU on signing an Agreement of Association; the investment climate; and the authority of the Ukrainian regime in the West. Only 3 respondents envisaged the possibility of an improvement of Ukraine’s standing in Russia.

Among other potential consequences of the trial of Yulia Tymoshenko, some respondents mentioned a worsening in relations with the West and an intensification of Ukraine’s isolation, as well as Ukraine’s moving further into Russia’s sphere of interests.

From the report at: http://dif.org.ua/ua/press/jkojerogjoj

Director of the Media Law Institute, Taras Shevchenko is clear in his response to the report in Ukrainska Pravda that members of the Party of the Regions are gathering confidential information about journalists and their publications.  A law recently passed increasing criminal liability envisages terms of imprisonment or a fine for collecting confidential information.

“Recently the Party of the Regions, together with other Verkhovna Rada Deputies, passed a law on increasing criminal liability for collecting confidential information about a person. The Media Law Institute came out against this law and we called on the President to veto it. Unfortunately President Yanukovych signed it. According to that law, if it is deemed that damage from the gathering of confidential information is significant, this is punishable by a fine or corrective work”.

Taras Shevchenko adds that if the information which the Party of the Regions is gathering contains people’s first and last names, then all the data linked to specific people automatically becomes information which, in accordance with the Law on Personal Data Protection, should be regarded as a database.  This, he stresses, is pursuant to the law which members of the Party of the Regions signed.

“That means that such a database should be registered with the relevant State body.  The Regulations for registering such databases were recently approved by the Cabinet of Ministers. You can submit an information request asking whether such a database has been registered. I imagine it hasn’t.”

Taras Shevchenko repeats the comment made by the author of yesterday’s article, that according to this law it is categorically prohibited to gather information concerning party affiliation. Such information can only be obtained when applying for work in certain cases, for which there is an exception in the law. “However overall for a database it is against the law to gather such information. And another thing, in gathering information fro inclusion in a database you must have a person’s consent. Such consent is clearly not asked for by the Party of the Regions.”

He stresses that if a media outlet or journalists know that information about them is being unlawfully collected, they can turn to the body in charge of protecting personal data, asking it to defend their rights. Or, referring to the Criminal Code, they can inform the Prosecutor that confidential information about them is being gathered, and demand an investigation.

Telekritika is seeking comment from Olena Bondarenko, whose name is on the letters sent around. 

On 6 July officers of the MIA Special Force Berkut unit burst into the courtroom of the Pechersky District Court in Kyiv where the trial is taking place of former Prime Minister Yulia Tymoshenko and used physical force against journalists.

According to the information agency UNIAN, the Berkut officers, without any explanation roughly shoved journalists, pushing them out through the corridor out of the courtroom. They ignored objections that they were violating at least three articles of the Criminal Code – 171 in obstructing the professional activities of journalists, 364 (abuse of power or official position) and 365 (exceeding authority). The Berkut officers simply told them to complain to the police if they thought the force was unlawful.

According to TVi correspondent Anastasia Stanko, it all began when Judge Kiryeev tried in vain to eject National Deputy from BYUT Yevhen Suslov. After a break was announced, a police officer asked the journalists to leave the courtroom for 10 minutes, supposedly to get some air in.

“Since two cameras remained for broadcasting the hearing, I went into the corridor together with a journalist from Chornomorka and a lot of cameramen – to film what would happen, because we expected Suslov to be removed. My colleagues and I sat on the bench near the metal tourniquet. Suddenly Berkut officers appeared from somewhere – around 70-80 and filled the whole corridor. …. There was a scuffle in the courtroom and you could hear Suslov shouting that he would leave himself. At that same moment the camera men began being pushed out, somebody pulled me off the bench and hurled me against somebody’s video, I scratched my hand. There was a terrible crush and lots of pushing. We were all pushed out to the staircase, we almost fell down it”.

ВІДЕО (video)

Ms Stanko considers the behaviour of the Berkut officers obstruction of journalists’ professional activities.

Lawyer from the Institute for Mass Information, Roman Holovenko presumes that the Berkut officers were afraid that the journalists would film them removing National Deputies who have immunity for which formally they could be held to answer. 

Photos : UNIAN

Serhiy Kostakov is accused of having damaged a car during the peaceful protest against the Tax Code in late November 2010.  He has been held in custody since 1 December 2010, although if convicted of the crime he would not spend longer imprisoned, He has not been convicted, and there are serious doubts about the case with the only witnesses being police officers, and their video footages, according to the independent journalist investigative bureau Svidomo not showing Kostakov touching the car.

The NGO Vpered [Forward] reports that the Human Rights Ombudsperson Nina Karpachova is planning to ask the court to change the restraint measure against Kostakov to a signed undertaking not to leave the city. They report that she met with Natalia Korolevska, National Deputy from BYUT and Head of the Board of Vpered on 4 July to discuss the course of the investigation into the case. As a result of this meeting, Ms Karpachova sent a letter to the Head of the Pechersky District Court Inna Otrosh giving grounds for changing the restraint measure from remand in custody.

According to Natalya Korolevska, “the Kostakov case is an example of how the state treats those citizens who are not afraid of openly expressing their civic position. This case may not be as high-profile as others, but that does not mean that we can remain indifferent to the fate of an active citizen who was daring enough to express his disagreement with the authorities”.

Natalia Korolevska has lodged a number of applications with the Pechersky District Court in Kyiv to have Serhiy Kostakov released on a signed undertaking. The last, in the second half of June, was signed by 11 National Deputies. So far these and other efforts have been in vain.

The next hearing into the case is scheduled for 11 July.  It has been agreed that a representative of the Human Rights Ombudsperson will be present.

The prosecution’s case is based on the evidence of 8 police officers. 7 police officers have still not testified, and their failure to  appear in court has been one of the reasons why the case has dragged on so long. The video footage has not been shown in court and the accused has had his application to see the video turned down. 

The court on Monday hearing the “gas charges” against the former Prime Minister, presidential candidate and leader of the main opposition party, Batkivshchyna - BYUT, announced an adjournment until Wednesday. The judge decided that one day was enough for the new lawyer to read through the case material.  BYUT consider that such haste reflects the wish to convict the former Prime Minister as quickly as possible.

Several hundred BYUT supporters and a picket by a small number of their opponents from the “All-Military Union of Ukraine” were divided by a large number of police officers. The Head of the Kyiv MIA Public Relations Department V. Polishchuk says that around a thousand police officers have been assigned “to protect public order”.  In the courtroom around a third of the space is occupied by guards.

Since according to Ms Tymoshenko, her lawyer Serhiy Vlasenko is abroad for consultation with foreign auditors on gas schemes, lawyer Mykola Tytarenko has taken on the case. He said that he had had only one day to read through the material and asked for an extra month. The judge however gave him only one day.

The Head of the Parliamentary Committee on Legal Policy, BYUT Deputy Serhiy Mishchenko believes that such haste is because the court “is carrying out the command to convict Tymoshenko as quickly as possible”. As a former official of the Prosecutor General’s Office, he called the dozens of police officers in the courtroom, the corridors and on the street absolutely unnecessary. He asserts that this, as well as the row of police officers in black behind the lawyer and Tymoshenko, are “elements of psychological pressure so that the lawyer and his client feel that there is a threat that they will suddenly change the restraint measure from signed undertaking not to leave to remand in custody”.

During the court hearing, one of the prosecutors called Tymoshenko “convicted”. Mishchenko believes that is symbolic and is convinced that “the judge and the prosecutors are through all their actions demonstrating that for Tymoshenko even before the end of the trial the sentence has already been prepared.” The former Prime Minister herself turned to those present, saying that this was a difficult stage for the country when, instead of the authorities there is a regime, instead of a justice system there are servants of the regime, and instead of the Prosecutor’s office there are cronies.

The Kharkiv Prosecutor has passed a criminal file to the court against three police officers. 

The Prosecutor General’s Office website informs that the investigation has been completed into a criminal file initiated against two police officers under Article 121 § 2 and 365 § 3 of the Criminal Code (deliberately causing grave bodily injury and exceeding official position committed by law enforcement officers) and against a detective from that department under Article 365 § 3 of the Criminal Code.

The report states that “the above-mentioned police officers on 30 March 2011 unwarrantedly, and with the use of physical violence and special means (handcuffs) detained and brought to the Kharkiv Regional Central Department of the MIA two persons. During the detention one of them was inflicted bodily injuries as a result of which he died.”

http://gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=95650

The following provides more details about the case:

Yevhen Zvenigorodsky

At the end of March 2011 it became known that a man whose body was found in a city square had been beaten in the neighbouring police station and left there to die. Two men had been detained: 32-year-old Yevhen Zvenigorodsky and Vitaly Adonin.  The Kharkiv Regional Police are claiming that both were suspected of committing a crime, but, the author says, the Prosecutor has already admitted that the detention was unlawful and involved officers “exceeding their authority”.

They began beating Yevhen Zvenigorodsky straight away, then took both men to the Central Police Station on Sovnarkomskaya.  The official records say that they were there for more than an hour. The Prosecutor’s information says that Yevhen Zvenigorodsky complained several times that he was feeling bad. The Prosecutor says that at that stage his internal organs had been damaged, and he was haemorrhaging.

Instead of calling an ambulance, the police officers kept beating him.  The Regional Police Department does not deny that the officers demanded money from the detainees.

They stopped the beating only when Yevhen Zvenigorodsky’s state became very bad.

According to official Prosecutor information, the men were taken out after an hour.

Yevhen Zvenigorodsky could not move by himself, and they left him to die on a bench in the square.

After that they returned to the police station and wrote in the visitors’ book, as though from the detainees themselves, that they had no complaints against the police.

An ambulance was called for Yevhen Zvenigorodsky at around 11 in the evening.  His relatives are convinced that that means he was not tortured for only an hour.

Yevhen Zvenigorodsky died during the night of his injuries.

An autopsy was carried out on 31 March, and all police officers who had anything to do with the detained men gave testimony.

The author points out that the Kharkiv Prosecutor, Yevhen Popovych has taken a principled stand in this matter, and immediately initiated a criminal investigation over inflicting fatal injuries and exceeding authority with grave consequences.

The police refused at the last minute to be interviewed, and the men under investigation are claiming that Yevhen Zvenigorodsky arrived at the police station in that state, though this does not explain why they didn’t call an ambulance. 

One of the two newspapers in the Crimean Tatar language – “Kiyrym” will be published until September on credit and thanks to support from readers and sponsors. The first issue came out on 16 July after a break of almost two months. Since then there have been two more issues on 20 and 23 July (the newspaper had long come out twice a week). 

The Editor, Bekir Mamutov says that they have begun publishing the paper thanks to readers providing a certain amount, enabling them to pay off about a fifth of their debt to the printers.  He said that the printers understand the position the newspaper is in and are not insisting on immediate full repayment.

The largest Crimean Tatar paper with a print run of 4 thousand, “Kiyrym” stopped coming out in May.  Since the beginning of the year the Ukrainian government has totally stopped funding of this paper.  Up till the end of May the newspaper had survived on subscriptions and was printed on credit

“Kiyrym” is the second newspaper in the Crimea which has stopped being published over the last year and a half, following the closure of “Krymskaya Svitlytsa”, a Ukrainian-language newspaper, last year.

Bekir Mamutov points out that his newspaper cannot turn to Armenia or Israel as members of the national minorities of those countries do.  The Crimea is the Crimean Tatars only native home, as it is for Ukrainians.

In July an appeal was sent calling on the President and Head of the Crimean Government to take measures to support the newspaper. It stated:

“The ethnic press, particularly of a people without many representatives, cannot live without subsidies, cannot function as a business project. Support for the ethnic press is international and European practice. The Ukrainian state also guarantees lawful support for periodic publications coming out in languages of national minorities.

We ask for your involvement in promoting a speedy professional resolution concerning the newspaper Kiyrym”. We are convinced that such resolution is a matter of honour and reputation of the Ukrainian regime in power. “

New information from Telekritika

Over 50 civic organizations making up the partnership New Citizen have issued an appeal expressing concern over the effective sabotage by the Cabinet of Ministers of the Law on Access to Public Information.

The appeal points out that the Cabinet of Ministers was obliged to have brought its normative legal acts into line with the new Law before it came into force on 9 July.  It should have also ensured its implementation by executive bodies of power, and tabled in parliament a draft law on bringing legislation into line. None of this, they are forced to report, has been done.

The State TV and Radio Broadcasting Committee as the body responsible for preparing normative legal acts drew up all the draft documents needed for implementation of the law, yet none of these has yet been submitted for the Government’s consideration. The delay is due to the failure by the Ministries of Justice and of Finance to provide their opinion of the law.

“Without the full legal field, work using the Law on Access to Public Information at the present time is enormously impeded. Despite individual successful requests for information where a response in full was provided, most bodies of power in Ukraine, particularly in the regions, are not ready to fulfil the requirements of the law, provide only fob-off answers, and in many cases overtly ignore the Law, treat it at their own discretion or violate it.”

In view of this, New Citizen is initiated a monthly rating on openness of bodies of power, where the most persistent infringers of the Law will be identified, as well as those whose openness and high quality of work should be a model for others.

“We are convinced that formal procrastination in fulfilling their obligations by the relevant State bodies could cause the failure of effective implementation of the Law on Access to Public Information which is intended to be an effective weapon for fighting corruption and monitoring the authorities. We call on the heads of the Cabinet of Ministers to take the situation under their personal control and implement the President’s decree and the requirements of current legislation.”

Two laws – the Law on Access to Public Information and a Law on Amendments to the Law on Information came into effect on 9 May.

At the beginning of May a presidential decree instructed the Cabinet of Ministers to introduce monitoring of implementation by executive bodies of the Public Information Act and court rulings issued in connection with violations of the right to receive this information. In addition, the government should prepare draft laws on carrying out government control over measures to ensure access to public information.

The Cabinet of Ministers appointed the State TV and Radio Broadcasting Committee responsible for preparing subordinate acts needed to bring the Public Information Law into force.

On 25 May the Cabinet of Ministers passed a resolution on ensuring implementation of the Law which regulates an algorithm for all executive bodies of power to implement the law. 

The Court of Appeal in July returned the criminal case over alleged damage to the granite stone on Maidan Nezalezhnosti [Independence Square] in the centre of Kyiv during the demonstrations against the draft Tax Code late last year to the Shevchenkivsky District Court in Kyiv. This was reported by Serhiy Melnychenko, the Head of the Coalition of Participants in the Orange Revolutions and one of those charged.

He said that the Court of Appeal had thus partially allowed the appeal from the Kyiv Prosecutor against the ruling on 9 April from this same Shevchenkivsky District Court ordering the criminal file to be passed to the Prosecutor to check that the pre-trial investigation had been carried out fully.

The Court however rejected one of the Prosecutor’s demands, that being to appoint a new panel of judges to examine the case, and it will be examined by the previous court makeup.

The Court will begin its examination with a preliminary hearing, but according to Mr Melnychenko no date has yet been set for the examination of the case.

The prosecutions were brought against alleged participants in the small business owners’ protest on Maidan Nezalezhnosti against the Tax Code in November and early December last year, Some apparent concessions were made at the time but then the protesters’ tent camp was forcibly dismantled almost the next day. As well as one person remanded in custody for alleged damage to a car during the protest, there have also been arrests and a criminal investigation into alleged «deliberate damage to the State of more than 200 thousand UAH (roughly 18 thousand euro)». The claim is that the accused drove metal pikes into the granite stone on Maidan.

Lawyer from the Ukrainian Helsinki Human Rights Union who is defending some of the accused, Oleh Levytsky has called this case unique in his legal practice. «For the first time in our history the regime has found a collection of down-and-outs and people who wanted to earn a few kopecks by holding a banner and has accused them of damaging granite covering. This is after the Party of the Regions itself in 2008 erected tents on Maidan, a fair number, if not the most in Maidan’s history, which can even be seen on photographs from the party’s official website.

Now they’ve collected up some innocent people and are stating to the whole world that they’ve found people who entered into a criminal conspiracy to damage the granite stone in the centre of a European capital.»

He added that this was the first time in independent Ukraine’s legal practice that people are facing criminal prosecution for exercising their constitutional right to peaceful assembly

New information reported at Segodnya

Civic and human rights activists have criticized the government’s policy on reform of benefits and social guarantees. A roundtable entitled Truth and Myth about Reform of Benefits and Social Guarantees in Ukraine on 26 July run by the Centre for Public Advocacy, pointed in particular to the plan to give the Cabinet of Ministers authority to determine the size and procedure for receiving social guarantees and consequently revoke the norms presently setting these. The participants stressed that it was quite unclear what impact this would have on enforcement of court rulings.

There are presently hundreds of thousands of cases regarding social payments guaranteed by law but not provided for with public funding. These are effectively paralyzing the court system. There is no legal dispute involved in such cases, yet citizens, mainly elderly people, are forced to turn to the courts to stand up for their right to legally established social payments. Abusing the right to court redress, the Pension Fund offices are en masse appealing against court rulings in favour of the claimants through the appellate or cassation courts.

Volodymyr Yavorsky, Executive Director of the Ukrainian Helsinki Human Rights Union informed that the government is not only trying to restrict social payments as much as they can, but is directly pressuring the courts. He explained that the Ministry of Finance had sent a letter to the High Administrative Court in which it called on the latter to formulate court practice on social cases which would ensure “budget stability”.  He stressed that such letters constitute pressure on the court and interference in the exercise of justice.

The roundtable participants believe that the Law on Amendments to the Law on the State Budget for 2011 needs particular attention. This came into force on 19 June and gives the Cabinet of Ministers  the above-mentioned right to determine the size and procedure for social payments to victims of the Chernobyl Disaster, children of the War and pensioners on the basis of the financial possibilities of the 2011 Budget. 

The Ukrainian Helsinki Human Rights Union has sent an appeal to the Human Rights Ombudsperson, Nina Karpachova asking her to send a submission to the Constitutional Court regarding the failure to comply with the Constitution of Item 4 of the Final Provisions of the Law on the State Budget for 2011.  This Item was inserted via the 16 June Law on Amendments.

.The Director of the Centre for Public Advocacy, Leonid Tarasenko considers that instead of consistent reform of benefits, the government from time to time takes inconsistent and chaotic steps In this sphere. This includes effectively revoking them by giving the right to the Cabinet of Ministers  to establish their size depending on the financial situation in the country, this violating the principle of legal certainty.

At present around 20 million Ukrainians receive some kind of benefits with around a third of the State Budget going on their financing. Over 50 legislative acts establish benefits and over 600 different types. According to various estimates, the value of the declared benefits comes to 19-29 billion UAH per year. The huge number of benefits for different categories of the public means that the budget is incapable of paying them to all those who are entitled. 

A study in 2009 found that the number of professionally-linked benefits exceeded the number of those on social grounds. Public funding for professionally based benefits was also considerably better than for those on social ground. The Director of the Rule of Law Programme of the International Renaissance Foundation, Roman Romanov says that this refutes the myth that Ukraine is a social state and that social policy is aimed at supporting those on low income. 

The Ukrainian Helsinki Human Rights Union has addressed an appeal to Human Rights Ombudsperson, Nina Karpachova and to the heads of deputy factions in the Verkhovna Rada asking her to stand up for the rights of victims of the Chernobyl Disaster, children of the War and pensioners.

They ask her to do all necessary within the scope of her powers to have revoked Item 4 of the Final Provisions of the Law on the State Budget for 2011.  This Item was inserted via a Law on Amendments to the said Law, No. 3491-VI from 14.06.2011.

UHHRU is turning to her in view of the unconstitutional nature of Item 4 of the Final Provisions of the Law on the State Budget for 2011 (http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2857-17 , document  2857-17).. This does not meet quality criteria for legislation (it does not contain a clear, unequivocal definition of the size and procedure for receiving social guarantees, and does not allow Ukrainian citizens to properly foresee the consequences of their actions). It jeopardizes Ukraine’s commitments in the area of human rights and has an extremely adverse impact both on Ukrainian society and on the country’s standing in the international arena.

Item 4 clearly states that in 2011 the provisions on victims of the Chernobyl Disaster, children of the War, pensioners and military servicemen are applied according to the procedure and with the amounts fixed by the Cabinet of Ministers on the basis of the financial possibilities of the 2011 Budget.

“These amendments envisage cancellation of specific amounts defining social rights and guarantees which are fixed through special laws for these groups of people.

This is being done by transferring the authority to fix the size of socio-economic guarantees to the Cabinet of Ministers which will, at its own discretion, based on the country’s financial possibilities, determine who will receive how much.

Bearing in mind the lack of funding for these benefits even now when the law clearly stipulates their size and anyone can defend their rights through the court, it is entirely clear that this step has been chosen by the government as a means of not honouring the socio-economic rights and guarantees set down in law, while avoiding responsibility for this”.

UHHRU stresses that making this dependent on the decisions of the Cabinet of Ministers is in breach of the principles of the rule of law – the principles of proportionality, meeting legal expectations, legal certainty.  There is insufficient openness and public accessibility with the adoption of subordinate acts.

The proposed procedure also runs counter to the Law on State Social Standards and State Social Guarantees which stipulates that the sizes of these benefits must be fixed through laws.

UHHRU points out that review of the conditions for social protection must be based on the constitutional provisions regarding the inviolability and inalienability of human rights and the prohibition on narrowing the scope and content of such rights when passing new laws or making amendments to existing laws.

It mentions also the legal force of the acts of executive bodies of power is lower than that envisaged by the Constitution, quoting Article 19.

“The transferring of the determination of conditions of social security to the level of bodies which are obliged to ensure implementation of legislative decisions will lead to the violation of a stabile and foreseeable system of civil rights and reduce the guarantees for their being honoured.”

This will lead, UHHRU warns, to the effective cancellation of socio-economic rights and guarantees because of the impossibility of effectively defending them through the court.  By depriving people of the human right of court defence, the state is depriving people of the rights themselves, since these turn into fiction.

It should be noted too that civic organizations and experts on human rights defence point out that the amendments to the law do not comply with the criteria of quality for legislation formulated in judgements of the European Court of Human Rights and violate the norms of the Constitution.

“In our view any laws aimed at reform of social guarantees and benefits must comply with established principles of reform which are not seen in this law. There is only a reallocation of powers between bodies of power with regard to a number of social guarantees for particular groups of citizens.

Item 4 does not comply with the principles of reform of social guarantees and benefits since is virtually not linked with basic normative legal acts according to which the process of reform is taking place, does not comply with the main directions of such reform and provides excessive authority to the Cabinet of Ministers “

UHHRU therefore asks the Human Rights Ombudsperson to make a submission to the Constitutional Court regarding the unconstitutional nature of Item 4 of the Final Provisions of the Law on the State Budget for 2011.

The appeal is signed by Volodymyr Yavorsky, UHHR Executive Director

On 1 July 2011 the Law on the Basic Principles for Preventing and Countering Corruption came into force. Analysts believe that aside from some undoubtedly positive elements, there are also failings, with the pluses and minuses fairly closely intertwined.  The Law also makes the President the main person responsible for anti-corruption policy in the country.

The new law extends the range of those who can be held liable for corruption offences. This is first and foremost public officials, including the top people in the country: the President, Prime Minister and Speaker of the Verkhovna Rada. The Law also regulates procedure for holding people liable. Many corruption offences previously classified as administrative have now been criminalized. This means sentences from 2 to 15 years imprisonment.

There is also a norm defining conflict of interests in the civil service and the procedure for its being regulated.

The norm obliging public servants to declare not only their income, but also their outgoings has been to a large extent emasculated by parliamentarians in the new law.

Oleksy Khmara, Head of TORO, Transparency International’s partner in Ukraine, explains that at first the amount involved for a single purchase was two times their average salary, but after consideration in parliamentary committees, this became 50 thousand UAH. Then after heated debate the amount was increased to 150 thousand UAH.  He considers the arguments used, that a normal plasma television can’t be bought for less than 40 thousand.

Oleksy Khmara points out that as a rule in European countries a purchase equalling the average monthly salary is declared. In money terms, where in Europe the amount is 5 thousand euro, in Ukraine it is now around 15 thousand euro.  This causes the paradoxical situation where one of the poorest countries in Europe has one of the highest thresholds for declaring outgoings.

As reported, the package of anti-corruption laws submitted by President Yushchenko were passed back in 2009, only to be deferred three times and then finally cancelled after President Yanukovych submitted a new version.

According to Yury Yakymenko from the Razumkov Centre this drawn out process says a lot, making it clear that the law impinges on the interests of those who deferred it. They saw it as threatening them.

Oleksy Khmaa notes that the procrastination has not led to the law being improved.   He points out also that responsibility for anti-corruption policy is now firmly with the President.

“Everything ends with him. He draws up anti-corruption strategy, creates a special body to coordinate anti-corruption activities, appoints procedure for checking candidates for the public service”.

Both experts are most doubtful about how in practice the new legislation will be implemented. According to the law a special body should oversee its implementation, yet this is only to be created next year, and the State Budget this year does not envisage its upkeep. For the moment its functions will be carried out by the Ministry of Justice and the SBU [Security Service].

According to last year’s figures from Transparency Internation, Ukraine is in 134th place according to their corruption index. The least corrupt was found to be Denmark, the most – Uzbekistan and Turkmenistan. 

Kharkiv Human Rights Group Anti-Torture Programme Coordinator Andriy Didenko spoke to Roman Skrypin on Radio Svoboda about his own experiences and the situation with penal institutions in Ukraine.

Andriy Didenko is aware that there are situations where only the individual can defend his or her rights. He himself spent 8 years imprisoned, won a huge number of court cases, only not in his own case. His work in the human rights field is impelled in part by the fact that he knows the situation and what needs to be done.

In Ukraine, he says, a person who ends up before the courts is doomed. The whole system is built that way.  If he is remanded in custody, ending up in a SIZO [pre-trial detention centre], that’s it and he won’t be released.

On the deployment of a Special Forces unit at Penal Colony No. 89 in Dnipropetrovsk on 5 July

“I arrived at No. 89 on the invitation of the then Head of the Department, Babets, on 5 July. We had information that a large number of prisoners had been beaten. I arrived and unfortunately did not get into the actual penal institution.

I don’t actually know why. There was a Prosecutor’s instruction to allow me into the colony. The Acting Head of the Colony came out and said that he could admit me but only to those suffering from tuberculosis. I told him that I was not interested in those with tuberculosis, but in certain specific prisoners. He said that unfortunately he couldn’t let me in.

He was asked about the conditions generally in SIZO and penal institutions, and whether the things that he talks about in the Dnipropetrovsk colony happen often

“Why did I go there at all? Why was I in Dnipropetrovsk?  It was because we were dealing with the deployment of a unit of Special Force Officers from the State Penitentiary Service. It is called inter-regional but that’s something else. The Special Unit is basically illegal with [registration of the order for] the existence of the special unit having been cancelled by the Ministry of Justice in 2008”

The whole point is that despite the Ministry’s action, the unit still exists, and prisoners are beaten, intimidated.

This, he says, is always the case where the special unit is deployed. The latest cases have been in Dnipropetrovsk and Simferopol. He points out it is virtually impossible to follow these events properly and that even though Ukraine ratified the Optional Protocol to the UN Convention against Torture [OPCAT] in 2006, it has yet to fulfil its obligation to provide a national preventive mechanism

The interviewer commented that Valeria Lutkovska from the Ministry of Justice had been in their studio and said that the government does react, that it was good that he had reported it, and so forth.  Yet prisoners are beaten, with a special unit existing, and Didenko is forced to run around, sounding the alarm. He asks if the government is doing anything in this direction and whether we are talking about the system of punishment and execution of sentences, or effectively a system of torture in Ukraine.

Andriy Didenko notes that thanks to Valeria Lutkovska a third attempt at a draft law on implementing OPCAT is being drawn up and discussed. The first draft law on introducing a national preventive mechanism was not introduced because there was no money. The second would have extended the powers of the Human Rights Ombudsperson to cover this area. 

The third variant involves transitional provisions with a mechanism under the President’s Administration capable of visiting penal institutions etc.

Can you recount your own memories or impressions about what happens to a person when he ends up behind bars?

“The main problem, in my opinion, is that a person who ends up behind bars is not protected, because information about him does not become public. That is very important. “

He says that the torture and inhuman treatment begins at the very outset, at the stage at which there is no protocol of detention, no records.

He notes that a public survey carried out by the Kharkiv Institute of Sociological Research together with the Kharkiv Human Rights Group suggested that just in the police acts of unlawful violence take place every 40 seconds. This is without mentioning all the violations in penal institutions.

He adds that when we speak of violence, it is not necessarily physical – psychological pressure can also be applied.

He gives the example of a young girl brought to a police station, barraged with questions by 6 CID officers.  The pressure is enormous and the protocol should mention that there were so many officers at the interrogation, but it doesn’t.

Torture takes place in the main where a person is not officially recorded, when he doesn’t officially exist.  Later a lawyer has access and the case is passed on to the investigators.

The interviewer returned to the situation in SIZO and penal institutions, trying to gauge how such cases as deployment of officers who beat up prisoners can happen.

Didenko points out the case of Davidov and others v. Ukraine over the mass beating of prisoners in 2001-2002 at the No. 58 Izyaslav Penal Colony. The European Court of Human Rights found that there had been a violation of the prisoners’ rights and torture.  He notes that for maybe the first time, the Court actually came themselves to carry out their own investigation. The Judgement names those likely to have been implicated.

And yet, he says, the situation has not changed, and the special unit is still use, very actively in fact, for beatings of prisoners.

The interviewer points out that the Department for the Execution of Sentences [the Department] denies the existence of any special unit.  Andriy Didenko says that maybe it doesn’t [officially] exist, but it works alright, and prisoners are beaten.  Asked, he confirms his view that they are beaten for no reason.

Asked what the point is, he says to beat and intimidate. He believes the Department’s philosophy is not about prisoners being reformed, but about them being beaten and cowered.. The change of name to the State Penitentiary Service has not changed this philosophy. It is not interested in trying to change a prisoner’s attitude to the crime.

Do those in power know what is going on?  Why does the system remain totalitarian in essence?

It is the single state structure that has not undergone any changes or reform. He says that at present a lot is said about plans for reform, but he doesn’t know how realistic that is.  He does say that he has met with heads of the department who do seem committed to change.

Abridged from the interview at: http://radiosvoboda.org/content/article/24282072.html

The United States has imposed visa bans on Russian officials connected to the 2009 prison death of lawyer Sergei Magnitsky, whose case that has come to symbolize corruption and the state of human rights in Russia.

In doing so, the administration of President Barack Obama looks to heed lawmakers’ calls for Washington to take action, while minimizing potential damage to the "reset" of relations with Moscow.

The announcement was made quietly to Congressmen in the administration’s written reaction to a Senate bill that seeks broader sanctions -- both visa bans and asset freezes -- against the officials. The bill would also pave the way for the United States to take similar action in other cases, and has provoked the ire of Moscow.

A Congressional source familiar with the matter told RFE/RL that the administration statement said that U.S. Secretary of State Hillary Clinton "has taken steps to ban individuals associated with the wrongful death of Sergei Magnitsky from traveling to the United States."

It specified that the individuals are "already flagged in the visa-adjudication system used by visa officers."

On July 27, Russia’s Foreign Ministry said Moscow would respond to U.S. plans to impose visa restrictions on Russian officials. "It is clear that such actions can be a serious irritant in Russian-U.S. relations and damage attempts to improve trust and constructive cooperation, " a statement said.

U.S. State Department spokesman Mark Toner defended the move, saying it was part of a broader U.S. program to limit the travel of human rights violators.

"Where we have credible evidence of association or culpability [for human rights violations], we do issue visa restrictions on individuals around the world, " Toner said. "In this specific case it was the individuals that we believe are responsible for [Magnitsky’s] death."

Looking For Justice

Citing senior U.S. officials, "The Washington Post" said the blacklist did not cover all 60 people indentified as responsible in the Senate bill.

That list was first compiled with the help of William Browder, the CEO of investment firm Hermitage Capital, which Magnitsky represented.

Since the lawyer’s death, and while the top officials on the list remain unpunished at home, Browder has led a campaign to seek justice outside of Russia. 

"I think at this point, there is nothing [Russia] can do to avoid sanctions of people who are involved in torture and murder, " Browder told RFE/RL’s Russian Service after learning of the visa bans.

"I think that what they can do in terms of not having this happen in any other case is to clean up their judicial system and prosecute all these people. I mean, it is absurd that the United States says, ’These people are torturers and murderers, they can’t come into our country.’ And in Russia, these same people are being promoted and given state honors and with no consequence at all to their crime."

In 2008, Magnitsky was arrested after implicating top officials from Russia’s Interior Ministry, Federal Security Service, and other agencies in a complex scheme to defraud the government of $230 million.

He died in 2009 after nearly a year in pretrial detention, during which he was repeatedly denied medical care. A report on Magnitsky’s death issued this month by the Kremlin’s human rights council said the lawyer had also been severely beaten before dying.

Amid international outrage, Russian President Dmitry Medvedev fired 20 prison officials after Magnitsky’s death. Last week authorities launched criminal investigations against two others. However, the top officials implicated by Magnitsky have been given promotions.

Interests To Balance

Matthew Rojansky, the deputy director of the Russia and Eurasia Program at the Carnegie Endowment, a Washington think tank, says the Obama administration is carefully balancing its interests in issuing the visa bans.

He said the move might be a way to take the Magnitsky issue "out of Congress’s hands, " and as a result, avoid additional damage that the more far-reaching Senate bill could inflict on the "reset."

The administration feels it "doesn’t need Congress to tell it who to put on a visa ban list; it can do that itself. It didn’t like the notion that these things were supposed to be made public, because, of course, that’s not U.S. policy -- we don’t make visa-ban names public, " Rojansky said. "And generally, it doesn’t like the notion that Congress is going to be running its Russia policy at a sensitive time in the relationship."

Rojansky said that by quietly imposing the visa bans, and perhaps on only some of the officials listed in the Senate bill, the administration is taking action without making it a "blunt instrument against Russia."

Russian opposition to the Senate bill was on full display in June, when lawmakers in Moscow introduced a retaliatory bill into the Duma that would ban visas and freeze assets of foreigners deemed to have violated the rights of Russian citizens.

More ominously, "The Washington Post" quoted the administration’s announcement of the visa bans as saying: "Senior Russian government officials have warned us that they will respond asymmetrically if this [Senate] legislation passes. Their argument is that we cannot expect them to be our partner in supporting sanctions against countries like Iran, North Korea, and Libya, and sanction them at the same time."

The statement adds that Russian cooperation on the transit of supplies to Afghanistan could also be jeopardized by passage of the "Sergei Magnitsky Rule of Law Accountability Act."

It remains to be seen whether that warning, coupled with the visa ban, is enough to dilute strong bipartisan support for the bill.

Rojansky also notes that the administration must win the support of Congress in order to remove trade restrictions on Russia and allow it to join the World Trade Organization -- a move Obama has vowed to pursue as the next step in the "reset."

The administration could be wagering, Rojansky said, that enacting the visa bans will win some lawmakers’ support.

More To Come?

Those considerations aside, Hermitage Capital’s Browder said the U.S. move set a precedent for the European Union, Canada, the Netherlands, and others to follow.

"We’ve been in touch with a number of other countries all over Europe and I would expect that because the United States has done this, it gives everybody else the confidence to do it as well, " he said.

"And you’ll see many other countries doing this. I don’t think that these 60 people who killed Sergei Magnitsky or were involved in this terrible crime will be able to travel much other than to really uncivilized places in the future."

By Richard Solash,  Irina Lagunina

It was two years ago that rights worker Natalya Estemirova was kidnapped from outside her home in the Chechen capital, Grozny, and slain with shots to the head and chest.

Now, on the anniversary of her killing -- on July 15, 2009 -- journalists and rights activists inside and outside of Russia say little progress has been made in resolving her murder and are calling for a thorough and impartial investigation into her death.

The Russian rights group Memorial -- Estemirova’s employer at the time of her death -- has collaborated with the independent "Novaya gazeta" newspaper and the Paris-based International Federation for Human Rights to conduct its own investigation into the killing of the 50-year-old activist.

Their findings -- presented to Russian President Dmitry Medvedev last week and leaked to the media on July 14 -- suggest that the government investigation is on the wrong track and that the secret services were used to concoct a false version of events to steer attention away from the true killers.

Friederike Behr works in the Moscow office with Amnesty International, one of the rights groups behind a separate press release calling for renewed efforts to fully investigate the murder.

She says the new report doesn’t put blame on specific authorities but points to critical gaps in the investigation -- including DNA evidence found on Estemirova’s fingernails and clothes -- that make it impossible to adequately judge who was behind the killing.

"It’s not convincingly proven that the current theory published by the investigation committee -- that she was murdered by members of an armed group -- is founded in sufficient evidence, " Behr says, "and that with all the other leads suggesting that she was murdered maybe by staff members of law-enforcement agencies, that there’s really not enough evidence to prove that this version can be excluded."

Medvedev used the first anniversary of Estemirova’s killing to announce that authorities had uncovered the killer and were looking for the masterminds behind the attack. Government investigators claim the activist was murdered by Chechen insurgents in retaliation for exposing some of their crimes.

But the new independent report disputes that theory, saying the circumstances of Estemirova’s death point to the possible involvement of public officials.

Chechen authorities, including President Ramzan Kadyrov, had publicly criticized Estemirova for her reporting on human rights abuses in the North Caucasus republic, including extrajudicial executions, enforced disappearances, and torture by the Chechen government. Just weeks before her death, Estemirova had exposed a case of extrajudicial killing by local police. Federal investigators, however, have failed to explore any possible role of the police in her killing.

Estemirova had frequently been threatened and harassed for her human rights work. Rachel Denber, who works in the New York office of Human Rights Watch, says the authorities’ selective investigation into the murder "raises more questions than it resolves."

"There were very strong circumstances around Estemirova’s murder that suggested that there could have been some official involvement, " Denber says. "You know, the threats that had been made against Estemirova and others like her, the threats against Memorial, the timing of the threat, the kinds of crimes that Estemirova had been investigating -- all of that pointed to a very strong official interest in seeing some kind of harm done to her."

Rights groups say the Russian government is obligated under both domestic and international law to investigate Estemirova’s case properly and prosecute all responsible, regardless of rank or position. Without such a commitment, says Denber, activists like Estemirova continue their work in the North Caucasus "at serious peril."

written by Daisy Sindelar