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Human rights in Ukraine – 2004. XVI. RIGHT TO SAFE ENVIRONMENT

13.10.2006

The second half of the twentieth century heralded two fundamental changes, both in international law and in the legal system of almost every country. First human rights, and then a clean environment became universally recognized as ftive Offences Code («resisting the police»). Two were detained for 72 hours, but the law enforcement officers could not manage to lay charges of possession of drugs, allegedly found when searching the tent city. At around 12 o’clock on 1 August the Sumy police again attacked the tent city, which had been erected after the organizers informed the local authorities of their intention to carry out this form of protest action. There was no court sanction limiting the right of the organizers of the tent city to peaceful assembly, yet the police officers took the tents down. The attack on the student protest tent city took place in the presence of the Mayor of Sumy, Volodymyr Omelchenko.

On 5 August, the Romen City District Court of the Sumy region considered an application from the Sumy Regional State Administration ««to limit the holding of a walk by Sumy students from the city of Sumy to Kyiv», and decided:

«To ban the walk from Sumy – Romen – Kyiv by Sumy students under the title «Student Resistance»

In the morning of 6 August, the Sumy police, referring to the decision of the Romen City District Court, detained around 30 students taking part in the walk from Sumy to Kyiv. All of them were sentenced to one day’s administrative arrest under the «traditional» Article 185 of the Administrative Offences Code («resisting the police»). One of the participants – a student of Sumy Pedagogical University, Vyacheslav Kobylyakov, undamental social values. In both cases, the existing State and legal institutions had to change in order to guarantee these values. It was the crimes of the totalitarian regimes which brought about an understanding of the importance of the rights of each individual. The importance of a high quality of environment was understood as a result of the ever more frequent situations when the exhaustion of natural resources, or their pollution were seen to place insurmountable obstacles in the way of exercising virtually all human rights.

The UN Conference on the Human Environment held in Stockholm in 1972 was the first in international practice to assess the importance of the problem of the quality of environment. The preamble to the Stockholm Declaration states that both the natural and the man-made environment are essential to people’s well-being and to the enjoyment of fundamental human rights, including the right to life itself. Principle 1 of the Stockholm Declaration declared the right of each individual «to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being».

In 1992, twenty years after the Stockholm Conference, a United Nations Conference on Environment and Development, also known as the «Planet Earth Summit» was held in Rio de Janeiro (Brazil). The Rio Declaration developed the provisions of the Stockholm Declaration and presented a new approach to the protection of the environment as a whole and of the environmental human rights, linking these to issues of sustainable development. Principle 1 of the Rio Declaration declares that «human beings are at the centre of concerns for sustainable development». In Principle 10 of the Rio Declaration, other environmental human rights are only declared – the right of access to environmental information, to participation in decision-making processes and judicial protection of these rights, etc.

The Rio Summit stressed the interdependence between the observance of fundamental human rights and the state of the environment. Violations of fundamental human rights can lead to damage to the environment. For example, non-observance of the right «to work» or to «to protection against unemployment» (Universal Declaration of Human Rights (UDHR), Article 23, Paragraph 1) pushes people to plunder or destroy the natural environment In turn, the degradation, destruction and pollution of the natural environment can lead to a worsening of sanitary conditions, pose a threat to people’s health or cause damage to property. All of this is a violation of the human right to a «productive life in harmony with nature» (The Rio Declaration on environment and development, Principle 1) and the right to a standard of living «adequate for the health and well-being of himself and of his family» (UDHR, Article 25, Paragraph 1).

The Vienna Declaration (1993, Article 5) recognized the universal nature, integrity, interdependence and interrelation between human rights – civil, cultural, economic, political, social and environmental. The integrity of rights denotes the refusal to categorize rights as of higher or lesser priority. This provided wide scope for cooperation between «green» and other human rights movements. This provision is especially important for environmentalists (activists of the environmental movement), because it shows the complex nature of any violation of rights and therefore assumes the complex character of protection of these rights.

The principles set out in the Declarations of the UN Conferences in Stockholm and Rio de Janeiro had a profound impact on the legal systems of many countries, including that of Ukraine. However the right to healthy and safe environment has still not been directly articulated in the international system of human rights. This is connected with the enormous complexity of issues involving protection of the environment and sustainable development, as well as with certain specific features of these rights.

1. Specific features of environmental rights

Human rights are generally divided into «negative» and «positive». «Negative» rights are those which a person is born with – the right to freedom from torture, freedom of speech, of conscience, of movement, etc and the State is simply obliged to not deprive the individual of these rights or restrict them in any way. The second category, including the right to an adequate standard of living, to social protection, to healthcare, to employment, etc, require considerable effort and expense from the State to ensure their implementation. Since there is no limit as such to well-being, even in the most developed countries, it is difficult in the case of «positive» rights to ascertain whether or not they are being observed.

The right to a safe environment has several unique features:

1) It combines characteristics of both «negative» and «positive» rights. For people living in a natural environment which has suffered little environmental degradation, the right can be considered «negative» – the State must simply not permit any actions which could lead to a worsening in the state of the environment in that area. However for people who live in an enviwas taken to hospital with serious injuries. On both occasions involving detention – 1 and 6 August, the Deputy Head of the Sumy Police Department, Kostyantin Bezsalov, was in charge of the police.

The Ukrainian State authorities were also criticized by a number of human rights organizations over the Sumy students.

On 16 August, one of the organizers of the Sumy students’ protest actions, Oleksandra Vesnych, with the legal support of the Institute «Republic», lodged a complaint to the Appeal Court of the Sumy region about the ruling of the Romen City District Court from 5.08.04. The complaint points to the incompatibility of this ruling with Article 39 of the Constitution of Ukraine and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as to the violation by the Romen City District Court of a number of procedural norms – consideration of the case in the absence of one of the parties, violation of the principle of equality of arms, and of impartiality during the court hearings. The complaint also mentions that during the walk of the Sumy students there were no breaches of public order, and there was no risk to the health of the population, nor to the rights of other individuals.

The Appeal Court of the Sumy region, having considered Vesnych’s complaint, on 8 November reversed the ruling of the Romen City District Court from 5 August. Yet by 2 December the Sumy Regional State Administration had turned to the Supreme Court of Ukraine with a cassation appeal against this resolution, stating that «The Appeal Court of the Sumy region mistakenly concluded that infringements were made in the procedure for resolving issues». The Sumy Regional State Administration asks the Supreme Court to reverse the resolution of the Sumy Appeal Court and to reinstate the resolution of the Romen City District Court. The Supreme Court has yet to consider this cassation appeal.

Several thousand vendors of the «Troeschina» market in Kyiv, in protest at the closing of this market, on 25 August blocked off the transport route across Moskowsky bridge. The Police did not interfere in these events even when scuffles arose between those participating in the political meeting and car drivers. The next day, several dozen protesters were sentenced to 15 days administrative arrest.

On the other hand, protest actions by vendors of the Central Market in Kharkiv, which took place in May, passed off without incident.

A separate place in this category of mass actions should be given to the meetings in Simferopol commemorating the 60th anniversary of the deportation of Crimean Tatars (the estimates of law enforcement officers put the figure of those who took part at 25 thousand), as well as a number of meetings against the war in Iraq, which took place through May and June (Kyiv, Sumy, Khmelnitsky and others) and which were organized both by civic and by political organizations (the Communist Party of Ukraine and the Socialist party of Ukraine, without large numbers of participants. These meetings passed without trouble, and the State authorities took no measures against them.

2.3. Specific features of exercising the right to peaceful assembly during the Presidential campaign (October – December 2004)

In connection with the Presidential elections (31 October 2004), the number of demonstrations, political rallies and pickets in Ukraine increased significantly, as did the numbers of those taking part. Virtually all mass actions were of a political nature, with even actions on social issues taking on a political slant.

Basically political in nature were also the actions of ecologists in Kyiv protesting against decisions of the Kyiv City Council which gave a number of pieces of land in the nature reserve zones of Kyiv – Feofania and Pushcha-Voditsa to be used by politicians of the pro-regime camp (to be fair, one should mention that among these politicians were a few figures of the political opposition.

In all, judging by information from the Public Relations Department of the Ministry of Internal Affairs of Ukraine, from October to November 2004 (up till the second round of Presidential elections on 21 November), hundreds of thousands of people in all regions of Ukraine took part in pre-election mass events. The largest of these were students viche[6] in support of Presidential candidate Viktor Yushchenko (16 October, with around 20 thousand people), the political rally of Yushchenko supporters near the premises of Central Election Commission (23 October, 13 thousand people) and the all-Ukrainian charity socio-cultural action «Youth – against! Youth – for!» (basically an event in support of Presidential candidate Viktor Yanukovych which took place in many cities of Ukraine).

In the evening of 21 November in Kyiv, and on 22 November in many other cities, primarily in the West and Center of Ukraine, actions by supporters of Viktor Yushchenko began. The demands of these actions were the annulment of the results of the second round of elections, in which, according to the Central Election Commission, Yanukovych had won, and the declaration of Yushchenko the winner. The actions were, in the majority of cases, indefinite. Meetings took place not only in cities, but also in many villages (in the West of Ukraine, in the Kyiv, Chernihiv and Sumy regions) where there had been no mass events for decades.

After the Court Chamber for Civil Cases of the Supreme Court of Ukraine ruled on 3 December 2004 that, due to numerous violations of Ukrainian legislation during the second round of the Presidential elections, it was impossible to establish the results of the elections, and that there would be ronment with considerable man-made pressure on the environment, the right to a safe environment is «positive». The enforcement of this right in such cases requires long, complex and coordinated activity of all parts of the State machinery with the ensuing need to obtain and spend large amounts of money.

2) The large range of ways this right can be violated – ecological accidents, etc – are easily explained by the diversity of both the environment and human activities that adversely affect the environment. As a result, a large number of different legislative and normative acts imposing necessary restrictions are required to safeguard environmental rights.

3) Violations of this right can be on vastly different scales and have entirely different consequences – from a temporary deterioration of working conditions at a single work place to long-lasting transboundary pollution of entire regions on the planet.

4) Cause and effect chains which lead to violations of this right can be over a long period and begin from systems of social values. The road to an ecologically safe environment requires a transition to new ways of looking at the world.

5) As a result of the rising dependence of civilizations on technology, large-scale man-made environmental catastrophes with the potential to influence the health and quality of life of millions of people, can be caused by misjudged actions of small groups or even single individuals.

It is in view of these specific features that public participation in the protection of the environment, and most importantly, their access to environmental information, are of vital importance for national and international environmental law systems. In fact, all the most recent achievements of international law underline the importance of the public community. The principle of public participation is enshrined not only in the Rio Declaration and the Agenda of the XXI century, adopted at that UN Conference, but also in a series of international treaties signed after Rio. Some of these were developed and agreed within the framework of the Europe-wide process «Environment for Europe», the fifth general summit of which took place in Kyiv in 2003.

The special role of the public is most fully reflected in the Aarhus Convention: «Access to information, public participation in decision-making and access to justice in environmental matters». This Convention is of enormous importance for the environmental movement.

2. Environmental rights in Ukrainian legislation

Article 50 of the Constitution of Ukraine states that «Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right». In addition, the Constitution guarantees everyone «the right of free access to information about the environmental situation, the quality of foa re-run of the second round, and especially after the Verkhovna Rada on 8 December passed a vote of no confidence in the Central Election Commission, and also approved amendments to the Constitution – the «political reform» – the protest actions by Yushchenko supporters began to abate. However, the last tents – in Kyiv – were only dismantled on the eve of the inauguration of the new President on 23 January 2005.

On the other hand, especially after the re-run on 26 December 2004, which Viktor Yushchenko won, mass actions by supporters of Presidential candidate Yanukovych began in the East and South of Ukraine (these actions were, however, on a smaller scale than the actions by Yushchenko supporters).

In general, during these actions from October to December 2004, the number of violations of the right to peaceful assembly decreased markedly in comparison with the previous nine months. One can explain this as a change in attitude of State executive bodies and bodies of local self-government to the right of people to peaceful assembly brought about through mass pressure on the executive bodies by civic organizations and the participants of demonstrations themselves.

Court restrictions on the right to freedom of peaceful assembly in the last months of the year

Throughout this period the Institute «Republic» recorded only two cases where peaceful actions were prohibited by the courts – in Dnipropetrovsk and Lviv (we have discussed this incident already) – however in neither case was the court ruling adhered to, and no repressions against the organizers or those taking part in the meetings were applied.

Instead, courts of first instance did not, in most cases, satisfy the applications of local executive bodies to restrict the right to peaceful gatherings, not finding any constitutional justification for this. Even courts which had previously «automatically» satisfied such submissions from the local authorities about prohibiting peaceful gatherings now turned such submissions down.

For example, on 28 October 2004, the Zarichny District Court in Sumy rejected the application of the city council to restrict the right to peaceful assembly of supporters of the Presidential candidate Viktor Yushchenko, and the Shevchenkivsk District Court in Kyiv twice – on 6 and 20 November – turneod and consumer goods, and also the right to disseminate such information. No one shall make such information secret».

Thus, environmental rights are enshrined in the norms of the Constitution of Ukraine and form a qualitatively new, independent group of principles aimed at protecting individual environmental (and not political, material, spiritual and other) needs and interests.

Ukraine has become a party to more than 40 international environmental protection conventions of global as well as regional significance, among them being:

 Convention on the Wetlands of International Importance Especially as Wildlife Habitat (1971);

 Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), Paris, 1972;

 Convention on the Conservation of the European Wildlife and Natural Habitats (1979);

 Convention on the Conservation of Migratory Species of Wild Animals (1979);

 Vienna Convention for the Protection of the Ozone Layer (1985);

 Convention for the Protection of the Marine Environment of the Baltic Sea Area (1992 Helsinki Convention), Helsinki 1992;

 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 1992;

 Convention on Biological Diversity, Nairobi, 1992;

 Convention on Nuclear Safety, Vienna, 1994;

 The Aarhus Convention (1999).

International environmental conventions and treaties, upon their ratification by Parliament, become part of national legislation and impose on Ukraine additional obligations with regard to protection of the environment and safeguarding people’s environmental rights.

In their analysis of documents of Ukrainian environmental legislation, international experts have more than once commented on its high quality, systematic nature and consistency. In particular, Article 3 of the base Law «On the protection of the environment» sets out a number of crucially important principles for environmental protection, among them: the priority of the demands of environmental safety; the preventive nature of environmental protection measures; the obligation to carry out environmental expert studies; openness and democracy in the taking of decisions, the implementation of which may have impact on the environment; the development of environmental awareness in the population, etc.

However the experience of adherence (or, more accurately, non-adherence) of this legislation is appalling. Most of the provisions of the Law remain on paper.

3. Ratification of the Kyoto Protocol

Of the Laws and Resolutions on environmental issues adopted by the Verkhovna Rada in 2004, most significant was undoubtedly the Law «On the ratification of the Kyoto Protocol to the United Nations Framework Convention on Climate Change».

Civic environmental organizations, in particular those participating in the Working Group of Ukrainian NGOs on Issues of Climate Change (hereafter the Working Group) welcomed Ukraine’s ratification of this important international initiative and viewed it as a chance to implement energy-saving technologies in Ukraine through the so-called common projects in the framework of the Kyoto Protocol.. Without this, it would be impossible to significantly reduce power consumption in Ukrainian production and increase its competitiveness on world markets. It is ultimately this very modernization which will make it possible to raise the standard of living of Ukrainian citizens and, through the environmental effects of modernization of technology, the quality of life.

However the benefits from the ratification of the Kyoto Protocol can only be gained given specific conditions which have yet to be created. This is, first and foremost, complete fulfilment of the obligations under the UN Framework Convention on Climate Change (hereafter FCCC), which Ukraine took upon itself from 11 August 1997. However, with the fulfilment of the FCCC, Ukraine has experienced a number of problems, and even failures:

1. Of the post-Soviet countries, Ukraine stands alone in still not having determined its National Focal Point for communication with the Secretariat of the FCCC in Bonn, although it pays its contributions to the Secretariat.

2. In spite of its obligations under Article 4 of the FCCC (paragraphs 1. b, 1. f, and 2. b), the Government of Ukraine has still not ensured that the National Strategy (which in fact has yet to be drawn up) and the Action Plan for diminishing the effects of climate change are discussed at public hearings and implemented.

In its social, economic and ecologic policy, the impact of climate change is not being taken into consideration (and is not mentioned in a single legislative normative document). Nor is detailed information provided on a periodic basic about policy and measures for preventing climate change.

3 In spite of its obligations under Article 4 (paragraph 1a) and Article 12 of the FCCC, Ukraine has not been regularly submitting anthropogenic emissions surveys, and the National statements on Climate Change to the Secretariat of the Cond down an application from the Kyiv City State Administration to «limit» the right of Yushchenko’s headquarters to peaceful meetings which they were planning to hold on Independence Square in the centre of Kyiv. Previously, in 2002, this very court, on the application of the Kyiv City State Administration, had prohibited an action by the political opposition «Rise, Ukraine!» on European Square in Kyiv.

In its ruling of 20 November, the Shevchenkivsk District Court in Kyiv effectively gave «the green light» for Yushchenko’s headquarters on the night from 21 to 22 November to hold a «parallel vote-count in the second round of Presidential elections» action on Independence Square, which in the morning of 22 November turned into an indefinite protest action against the official results of the elections.

Moreover, on 22 November, the Kyiv City Council, whose executive body is the Kyiv City State Administration – the initiator of the court bans on peaceful gatherings mentioned earlier, under the leadership of the Kyiv Mayor, Oleksandr Omelchenko, decided to support the protest actions by Yushchenko supporters on Independence Square. Similar decisions were taken by the majority of city councils on the territory of West and Central Ukraine.

Nor did local councils in Eastern and Southern Ukraine from October to December apply to the court to limit the right to hold peaceful actions of Yanukovych supporters, and as for attempts to gain court restrictions on the right of Yushchenko supporters to hold peaceful meetings, «Republic» recorded only one such attempt, in Donetsk.

On 10 December, several Yushchenko supporters, who had arrived in Donetsk from Kyiv, erected tents near the monument to John Hues, a British founder of Donetsk. Within twenty minutes, the tent city had been demolished by a group of unidentified individuals. A criminal case was opened into the assault on the tent city activists and the journalists present at that moment (which is yet to be investigated), but on the same day, the Executive Committee of the Donetsk City Council lodged an application with the court to limit the right of Ostap Kryvdyk (who had notified the Executive Committee about the planned action) to erect tents on the territory of the city of Donetsk. In its application, the City Executive Committee referred to the ruling of the City Council back in 1999, which regulated procedure for organizing and holding mass events in the city, and the ruling of the Mayor’s Office from the current year (11 June 2004) on «small architectural forms» with the supplements to it adopted on 25 November, at the height of the protest action. In these supplements, the Donetsk City Council decided: «To introduce supplements to the ruling of the City Council of 11 June 2004, №11/11 «On the approval of Rules for locating small architectural forms on the territory of Donetsk», by supplementing Paragraph 12 of the Rules with the following paragraph: «On the territory of the city it is prohibited to erect small architectural forms, including tents, with the intention of living in them».

On 13 December 2004, the Voroshilivsky District Court in Donetsk began its consideration of the City Executive Committee’s application to limit the right of Ukrainian citizen, Kryvdyk (whose interests are represented by a lawyer from the Institute «Republic») to erect tents in Donetsk, however during the court hearing, a representative of the City Executive Committee, Maksim Rovinsky, withdrew their application.

Repression of those taking part in peaceful meetings, and police dispersal of peaceful gatherings

From October to December 2004, there was one recorded incident involving the dispersal by the police of a peaceful gathering without court sanction. This incident was yet again in Sumy.

Near the building of the Kovpakivsky District Court in Sumy, on 13 November, an unplanned political meeting took place, with 100 – 150 participants. The reason for the meeting was the detention of Presidential candidate Viktor Yushchenko’s observers at polling station № 46. On the same day, 6 people were sentenced to 10 days administrative arrest for «resisting officers of law enforcement bodies» during the night after the first round of the elections, when they demanded that the results of the voting be displayed on the premises of the polling station. Neither defending lawyers, nor journalists, nor the parents of those detained were admitted to the hearing of the Kovpakivsky District Court , where the observers’ case was being considered. Later, the individuals convicted at this closed court process were declared prisoners of conscience by the international human rights organization «Amnesty International» – Ukraine’s first prisoners of conscience.

The participants of the spontaneous demonstration demanded an explanation and prevented the police vehicle which was to carry those detained to the place where they were to be held in custody. A special detachment of the police, «Berkut», together with unidentified individuals in civilian clothes, dispersed the demonstration. Bats were used, as well as teargas. The journalist, Irina Cherny had her dictaphone machine taken away, and was also beaten up. Several participants of the demonstration were hospitalized with serious injuries.

Such action by the police led to a new wave of mass actions of disobedience in Sumy, in particular, Sumy students erected a tent city near the Regional State Administration building, and over 20 students declared a hunger strike. Ukrainian human rights groups, and the Human Rights Ombudsperson, all came out in defence of the observers. According to the ruling of the Sumy Appeal Court, they should have been released on 17 November, however they were held for all 10 dayvention. An inventory of emissions and absorption of greenhouse gases has only ever been prepared for the period of 1991-1998 and only one National statement on Climate Change has been issued.

4. NGO representatives are most concerned by Ukraine’s failure to fulfil its obligations under Article 4 (Paragraph 1.i) and Article 6 of the FCCC, specifically that the Government of Ukraine has not organized systematic work on issues of climate change in the field of education, has failed to train experts in this field, to increase public awareness, to initiate public discussion and involve wide range of people in this process, including the NGOs. The public are not being involved in the taking of the relevant decisions. Even the package of Kyoto Protocol ratification documents were submitted to the Verkhovna Rada, entirely bypassing the public. This is also a violation of Ukraine’s international obligations under the Aarhus Convention.

Upon ratification of the Kyoto Protocol, Ukraine needs to fulfil other, even more specific obligations, in addition to its obligations under the FCCC. Article 18 of the Kyoto Protocol envisages the implementation of effective mechanisms for identifying situations of non-compliance with obligations and for reaction to such situations.

Is the problem a lack of money or a lack of transparency? The claim is sometimes heard from those in the Government that there was not enough money to meet the obligations under the FCCC, in particular, the cooperation with the public, and development of a National Strategy and National Action Plan with regard to the National statements on Climate Change. One can often hear the government blaming lack of necessary funds for meeting the obligations under the FCCC in general, and for cooperation with the community, and developing of the National Strategy and National Action Plan in particular. In fact, Ukraine has received millions of dollars in foreign aid for these purposes. However these funds are spent without transparency or accountability to the public or parliament as to whether they are being spent efficiently. For example, in 2003 Ukraine received 1 million Canadian dollars under the Canadian-Ukrainian program for environmental cooperation for the implementation of the FCCC. In our view, this money was not used efficiently by the Minister, V. Shevchuk. Around measures of international assistance, a certain clique («the climate clan») has formed which has an interest in controlling the trade in quotas for greenhouse gases.

Risks of the international trade in quotas on emissions Even if Ukraine was to meet the eligibility criteria, the trade in quotas could impose artificial limits on the development of the Ukrainian economy and, on the whole, prove damaging. There is no guarantee that money obtained from the trade of quotes will not disappear through corrupt channelss of the administrative punishment. On 21 December 2004, the Kovpakivsky District Court of Sumy reconsidered its ruling of 13 November and concluded that the observers representing Presidential candidate Yushchenko had not committed any violations. The latter have now lodged complaints about their illegal convictions and are demanding compensation.

Some participants of peaceful meetings also experienced repression after the meetings. For example, some participants of the All-Ukrainian Student Viche in support of Presidential candidate Viktor Yushchenko, which took place in Kyiv on 16 October 2004, were, a few days after returning home, accused of various criminal acts (dealing in counterfeit money, theft of mobile phones, etc). Such incidents were recorded in the cities of Chernihiv, Vinnytsa, Sevastopol and Poltava. In all these cases, local courts declared the charges groundless.

In particular, on 18 October 2004 in Chernihiv more than 20 students of local institutes were detained. Some of them, in contravention of current legislation, were not even charged. However some of them were told that they looked suspiciously like people who had, the day before, stolen a mobile phone, or to somebody who, a month earlier, had raped a person in a city park. They were soon released however in the evening of that same day, a third-year student of the Chernihiv State Pedagogical University, Oleksandr Kovalenko, was detained. He was accused of buying and selling counterfeit money, however as a result of pressure from civic organizations and the help of a lawyer, found for him by the Chernihiv Civic Committee for the Protection of Human Rights, the criminal case against him was dropped.

Later – at the end of October in Kyiv and other Ukrainian cities, there were searches on a huge scale of offices and private homes of civic activists who had organized or taken part in the organization of pickets, political rallies and demonstrations. In the course of these searches, the police found nothing illegal.

The Institute «Republic» considers such actions by law enforcement officers to be persecution and intimidation of those taking part in peaceful gatherings.

 

 

 

Applications from representatives of State executive bodies and bodies of local self-government to limit the right to peaceful assembly

The administrative crisis over issues involving climate change. The problem of climate change has enormous international, political, economic and environmental significance. Yet in the Ukrainian Cabinet of Ministers there is no single official responsible for coordinating all work on climate change issues in Ukraine – that is, an official only dealing with these issues. The issue falls within many disciplines and branches, and does not fully come under the competence of any of the present ministries or departments, while Deputy Prime Ministers have dozens of such obligations. The responsibility and authorities as regards issues of climate change need to be balanced and personalized as much as possible, as with the Chief Designer or Human Rights Ombudsperson. The administrative crisis over issues of climate change can be overcome by the creation of an office of the Representative of the Cabinet of Ministers of Ukraine on issues on climate change, as the Working Group has on many occasions suggested to the Cabinet of Ministers, the Inter-departmental Commission on fulfilling the obligations under FCCC and the Ministry of the Environment.

The Inter-departmental Commission (IDC), created by Resolution of the Cabinet of Ministers of Ukraine from 14 April 1999 № 583, can be a regulatory or supervisory body for such a Representative and his or her Office. However the IDC is not in a position to carry out routine executive work. Its activity is virtually paralyzed by the changes in leadership (frequent over the last 5 years) in the Government and the Ministry for Environmental Protection (MEP) which should act as the secretariat for the IDC. Over these five years, there have been five new Ministers of MEP, five new Deputy Prime Ministers (who chair the IDC), four new Heads of the State Committee on Energy Conservation, while the Minister of Energy has actually changed eleven times in ten years. Thus, there simply has not been anyone available to constantly deal with these issues. The Government is too absorbed in current matters to review its practice concerning the management of issues involving climate change. This practice has already led to the non-fulfilment by Ukraine of its obligations under the UN Framework Convention on Climate Change, and if it continues, failures and sanctions are inevitable.

4. Supplementary legislation for implementing the Aarhus Convention

Of all supplementary acts in the area of environmental protection adopted in 2004, the most noteworthy were «On approving provisions on the procedure of the Ministry for Environmental Protection of Ukraine for giving information concerning the environment» (order of the Ministry for Environmental Protection from 18 December 2003 №169, registered in the Ministry of Justice 4 February 2004 № 156/8755) and «On approving Provisions on public participation in decision-making in the area of environmental protection» (order of the Ministry for Environmental Protection from 18 December 2003 №168, registered in the Ministry of Justice 4 February 2004 № 156/8754). The Ministry for Environmental Protection considers these to be mechanisms for implementing the Aarhus Convention.

The very title of the first of these Provisions, «giving information concerning the environment» does not coincide with the «access to information concerning the environment» foreseen by the Aarhus Convention. Officials to the last wish to control the process of disseminating information, retaining at least some opportunity to give it out or not at their discretion. Giving information requires a clearly formulated request for information from the public (which is not always possible), whereas access envisages the possibility of looking through, and of working with catalogues and other forms of systematization.

It is not for nothing that the Aarhus Convention demands in Paragraph 2, Article 5: «Each Party shall ensure that, within the framework of national legislation, the way in which public authorities make environmental information available to the public is transparent and that environmental information is effectively accessible interalia.

by:

….

(b) Establishing and maintaining practical arrangements, such as:

i) Publicly accessible lists, registers or files;

Paragraph 2.1 of the Provision states: «The organization of provision of environmental information is carried out by a specially empowered central executive body on issues of the environment and natural resources, and its local bodies, and by enterprises, institutions and organizations». The organization of provision of information is a job which requires effort and expenditure. From the text of the Provision, it is uncleB>

While the number of cases where the right to peaceful assembly was infringed between October and December decreased, it should be noted that the heads of State executive bodies and bodies of local self-government continued to call for restrictions of this right and gave instructions to law enforcement bodies to use force to stop political rallies and demonstrations. However, in the vast majority of cases, law enforcement officers, the courts and subordinates of these officials did not follow their instructions.

For example, on 5 November the Head of the Kyiv City State Administration, Oleksandr Omelchenko, told journalists that the local authorities would not allow an action under the banner: «The People shall not be overcome» on Independence Square. He also stressed, referring to the ruling of the Kyiv City Council № 317/418 from 24 червня 1999, that it was not permitted to hold mass actions (with the exception of general national holidays) on Kreshchatik (Street) and Independence Square.

Such applications contravene Article 39 of the Constitution of Ukraine which does not allow for restrictions, as regards place or time, on the right to free assembly, and, according to Article 92 of the Constitution, neither bodies of local self-government nor State executive bodies have the authority to establish any norms which impinge on human rights or limit these rights on their territory. In accordance with Article 39 of the Constitution of Ukraine, it is sufficient to merely inform local authorities of planned peaceful gatherings, and no permission as such is required.

In November 2004, a special session of the Odessa City Council adopted an appeal to the citizens of Odessa. Taking into account heightened tension around the social and political situation in Ukraine, bearing in mind the proposals of the Mayor of Odessa, Ruslan Bodelan and of different factions, the city council suggesting prohibiting the holding in the city of any political rallies, pickets or other actions which would not contribute to stabilizing the socio-economic situation, and to also ban any illegal bodies, committees or other formations (by this was meant civic coordination bodies which were taking charge of organizing and holding demonstrations).

Similar calls were heard from the Head of the Council of Ministers of the Autonomous Republic of the Crimea, Serhiy Kunitsyn. He suggested imposing a moratorium on all political actions in the region «aimed at politicizing the situation».

On 22 November 2004, a joint appeal from the General Prosecutor of Ukraine, the State Security Service of Ukraine, and the Ministry of Internal Affairs of Ukraine, was issued, in which these bodies called on Ukrainians to refrain from mass actions after the second round of Presidential elections. While we have nothing against calls from citizens to take part or not take part in various actions, we must nonetheless point out here we have an appeal from State executive bodies, the so called «enforcement bodies». Moreover, the tone of this appeal enables one to interpret it as a warning to citizens of Ukraine to refrain from exercising their constitutional right to peaceful assembly.

3. Conclusions and recommendations

Despite the lack of national legislation, courts do not in the main apply the practice of the European Court of Human Rights, but use instead norms established by unconstitutional rulings of local authorities. As a result of this, the majority of rulings of national courts, especially those of first instance, contravene Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Local authorities, law enforcement bodies and the overwhelming majority of courts interpret the time period for prior notification extremely broadly. Most of them think that this period should be no less than 10 days, as was used in the USSR. The Constitutional Court has stated that specific time periods should be defined by law, saying that: «These time periods must not limit the right of citizens as foreseen by Article 39 of the Constitution of Ukraine, but should serve as guarantee of this right and at the same time provide the possibility for the relevant State executive bodies and bodies of local self government to take measures to ensure that gatherings, political rallies, marches and demonstrations, held by citizens, pass without impediment, and to guarantee public order and the rights and freedoms of other people».

Clearly, a norm requiring organizers to warn the authorities of plans to hold public peaceful gatherings does not contravene European practice however it is obvious that such time periods must be reasonable and flexible. Experience shows that administrative and court practice often infringe these demands and impose unwarranted restrictions on people’s rights. In the majority of court rulings restricting the right to peaceful assembly, the grounds for such restrictions were the submission by the organizers of mass events of notification outside the time limits determined by rulings of local councils.

In this way, the administrative practice as actually applied in Ukraine, prohibits the holding of spontaneous mass meetings, the relevance and need for which may disappear within a few days. This, in turn, does not comply with European human rights standards.

Courts of first instance, as a rule, satisfy the applications for State executive bodies to prohibit peaceful gatherings. Over the first nine months of 2004, courts of first instance (except for a few cases, for example, in Lutsk and Kirovohrad) satisfied the applications from local authorities to ban meetings. This, among other factors, is explained by the dependence of these courts on the local authoritiear how enterprises, institutions and organizations of all types of property perceive environmental information as their duty. It is even unclear with regard to state-owned enterprises, institutions and organizations. On this point, the Aarhus Convention states (Article 5, Paragraph 6): «Each Party shall encourage operators whose activities have a significant impact on the environment to inform the public regularly of the environmental impact of their activities and products». Yet no information about the forms nor means of encouragement are provided either in this Provision or in other Ukrainian normative documents.

The Ministry for Environmental Protection holds a very small part of the environmental information available in the State. The greater part is held in other ministries, departments, local executive bodies, at enterprises and institutions of different forms of ownership. The provision of information under the Aarhus Convention is the obligation of the State (represented by the Cabinet of Ministers) and not of the Ministry for Environmental Protection alone. The authority of the Cabinet of Ministers with regard to encouraging or obliging those in possession of such information is significantly greater than that of the Ministry for Environmental Protection, which is not able to compel them to do this.

The Ministry for Environmental Protection did understand this – in the Draft national report of Ukraine on is. One from October to December, during the pre-election campaign and the subsequent mass protests and to a large extent under the pressure of human rights organizations, did the practice of the courts begin to change. For example, the Shevchenkivsk District Court in Kyiv and the Kovpakivsky District Court in Sumy, which in the first half of the year had satisfied applications from local authorities to ban political meetings, in October rejected such applications. No court restrictions on the right to peaceful assembly were recorded in December.

Appeals against «automatic» rulings of courts of first instance take months to be considered, this making it impossible to effectively defend the infringed right and have it reinstated. Moreover, it is impossible to demand compensation for such rulings since unfounded rulings from courts of first instance are usually reversed by the appeal courts.

We would also mention the large number of court rulings prohibiting peaceful gatherings the day before they were due to take place, this eliminating the possibility of appealing such a ruling, and also resulting in the postponement of such actions which creates additional conflict.

The State, as represented by law enforcement bodies (the police) does not fulfil its positive obligations in accordance with Article 11 of the European Convention, in particular, as regards creating the conditions for holding peaceful gatherings and ensuring law and order. At the least, even theoretical, threat to public order the courts ban these actions, especially when a demonstration or other mass actions by the opposition are involved. Peaceful gatherings are always banned when two opposing political organizations intend to hold peaceful meetings in the same place and at the same time. This is often used by political opponents to disrupt a mass action by the other side. Such court and administrative practice does not comply with European standards, yet it can be observed in virtually all cases where peaceful meetings are banned throughout Ukraine.

One should also note that law enforcement bodies often use excessive force to disperse peaceful gatherings, and apply levels of suppression to peaceful individuals which are disproportionate to the threat presented.

In general, the authorities cannot establish a blankets implementation of the Aarhus Convention, it states: «in order to create real mechanisms for implementing the Aarhus Convention, the Ministry for Environmental Protection of Ukraine had prepared Drafts of two resolutions of the Cabinet of Ministers of Ukraine on the approval of these two provisions which would contribute towards meeting the demands of the Aarhus Convention by all interested executive bodies. However, on the recommendation of the Cabinet of Ministers of Ukraine, the Ministry for Environmental Protection instead drew up two orders from 18 December 2003 №168 and № 169 «On approving Provisions on public participation in decision-making in the area of environmental protection» and «On approving provisions on the procedure of the Ministry for Environmental Protection of Ukraine for giving information concerning the environment», and registered them in the Ministry of Justice on 4 February 2004 № 155/8754 and 156/8755».

It was thus the Cabinet of Ministers which unwarrantedly avoided meeting its international obligations by artificially narrowing the possibilities for public access to environmental information to that within the framework of the Ministry for Environmental Protection, and as far as other Ministries, departments and local executive bodies were concerned, left them to their own devices. If they happen to be in a good mood, they may just provide environmental information; if not, they can say: «the order of the Ministry for Environmental Protection doesn’t concern us, and we don’t have any instructions from the Cabinet of Ministers on environmental information».

Paragraph 2.2 of the Provision states that those in possession of environmental information «ensure, within the framework of their competence, the creation and constant updating of electronic databases of environmental information and ensure the public free access to this database via the Internet. Such information should include:

2.2.1) National and regional reports on the state of the environment highlighting the dynamics of any change;

2.2.2) a list, texts and drafts of normative-legislative acts which are in force in the area of environmental protection and reports on adherence to environmental legislation;

2.2.3) documents on policy issues in the area of environmental protection, plans for environmental protection, programs and projects;

2.2.4) international agreements in the sphere of environmental protection and the level of their fulfilment;

2.2.5) Other information about the state of specific environmental objects if, according to sociological research, these prove to be of concern to the public.

The very Ministry for Environmental Protection does not carry out these noble declarations. For example, on their website[1] as of 28 February 2004, the last National report on the state of the environment was for 2001, there were no regional reports, the list of legislative acts was extremely limited, there were no reports at all on adherence to environmental protection legislation, as well as no documents on policy issues in the area of environmental protection, plans for environmental protection, programs and projects. Since the Ministry website was set up, there has always been a place for information about financed measures of environmental protection however it has also always been left blank. In spite of the fact that Paragraph 3-b of Article 2 of the Aarhus Convention deems environmental information to include: «cost-benefit and other economical analyses and assumptions used in environmental decision-making». As we know, transparency in this area helps to prevent corruption, however this, perhaps, is not a paramount aim for the heads of the Ministry.

On the website there is not even any general information «about the type and scope of environmental information which is held by the relevant public authorities, the basic terms and conditions under which such information is made available and accessible, and the process by which it can be obtained», directly stipulated in Paragraph 2 of Article 5 of the Aarhus Convention.

Later in Paragraph 2.3 of the Provision we read: «In order to create the conditions for widely disseminating environmental information, a specially empowered central executive body on environmental issues and natural resources and its local bodies create centres of environmental information in the capital of Ukraine, the Autonomous Republic of the Crimea and in regional centres. Centres of environmental information are elements of infrastructure of a network of a national environmental automated information- analysis system for ensuring access to environmental information».

What this mythical automated information- analysis system is remains a mystery for the public, given that no document about it can be found on the website of the Ministry. Its possibilities can be guessed from the example of one of its «elements of infrastructure». According to information from the organization «Ekho-Pravo-Kharkiv», at the Kharkiv regional administration of the Ministry of Environmental Protection, one more sign appeared:

AARHUS CENTER

Visiting day –

THURSDAY

900 – 1600

So, on Thursdays the public has the chance to get to the centre in order to ask for information. It may be available, or then again, it may not. It may be given, or then again, it may not. That’s called «access»!

In Paragraph 2.4 of the Provision, it is stated that those in possession of information «ensure that information is made public through means of mass media» on:

2.4.1 The state of the environment, the dynamics of its change, sources of pollution, waste disposal;

2.4.2 Environmental emergencies and measures for their liquidation and sources of pollution;

2.4.3 The preparation and adoption of environmental programs, action plans, and also documents on environmental policy issues;

2.4.4 Environmental problems of a field or region and possible ways of resolving them with the aim of enlisting public participation in decision-making on environmental issues;

2.4.5 Plans for locating objects of increased environmental danger which require assessment of the influence on the environment;

2.4.6 Plans for issuing the appropriate documents for using natural resources of local significance, and for pollution of the environment, which are ist ban on peaceful meetings in any places. However such bans may be imposed on a temporary basis in certain circumstances and on the basis of specific facts. This applies in particular to central districts of populated areas, since providing the possibility of holding public actions on the outskirts of a city, or beyond its territory, contradicts the very aim and essence of the right to peaceful gatherings. Administrative practice in Ukraine demonstrates that bodies of local self-government pass separate normative acts (which, incidentally, does not fall within their authority and contravenes the Constitution of Ukraine) which prohibit the holding of any public and peaceful mass actions in the centre of populated areas. They then provide places for holding political rallies and demonstrations on the outskirts of the city or in stadiums which contradicts the very essence of the right to peaceful gatherings.

Another widespread administrative tactic is for bodies of local self-government to accept notification of the planned holding of peaceful meetings on the basis of procedure for prior notification. There are no demands relating to this notification or the procedure for its submission in any normative legislative act, this creating grounds for frequent abuse by officials of State executive bodies.

In view of the above, it is necessary to introduce through legislation the legal means for protecting the rights of individuals to exercise their right to peaceful assembly.

Recommendations:

1. To draw up instructions for law enforcement bodies which regulate their behaviour during peaceful gatherings.

2. To carry out training of employees of special units and patrol units of law enforcement bodies in the following: ensuring public order during peaceful gatherings; protecting those participating in peaceful gatherings; the grounds and conditions for using special means and physical force; ensuring independent control over how they use their authority during peaceful gatherings.

4.4. To translate into Ukrainian the rulings of the European Court of Human Rights on Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which concerns freedom of peaceful assembly, and to submit these translations to all local and appeal courts.

5.5. Taking into account practice of the European Court of Human Rights, to prepare and run a training course for judges of local and appeal courts of all 27 regions of Ukraine as to applying Article 11 of the European Convention in court practice with regard to applications from executive bodies to ban peaceful gatherings.

7.6. It would be expedient for the Supreme Court of Ukraine to provide general principles for court rulings on limiting the right to peaceful meetings and demonstrations

7. To draw up a Draft law on holding peaceful gatherings, taking into consideration practice of the European Court of Human Rights, as well as positive practice of democratic countries, and to encourage its adoption by parliament.

8. Bodies of local self-government and State executive bodies should reverse their rulings as to approving the Regulation on procedure for running peaceful gatherings and using «small architectural forms», bring their rulings into compliance with the requirements of the Constitution of Ukraine and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Prosecutor of Ukraine should appeal through court procedure such rulings of local authorities where the latter have failed to respond.

9. The Human Rights Ombudsperson should pay more attention to violations by local authorities and law enforcement bodies of the right to peaceful assembly.

10. Organizers of peaceful gatherings are advised to use court procedure to complaint against any rulings by courts of first instance on limiting the right to peaceful gatherings, and also against illegal actions of law enforcement bodies. The Institute «Republic» and the Ukrainian Helsinki Union on Human Rights consider such cases to be of priority in for providing legal assistance where such violations occur.



[1] The Draft Laws are available in the Internet on the server of Verkhovna Rada of Ukraine: http://rada.gov.ua. An analysis of the Drafts by human rights activists, as well as material from the public hearings are available on the Internet: www.rupor.org

[2] Taras Shevchenko 1814 – 1861, the great Ukrainian poet

[3] The pairs of blocs / parties named are, despite their names, representatives of the said «left- and right-wing». It should be remembered that since the collapse of the Soviet Union, while «left-wing» may still refer to communist or socialist-leaning positions, «right-wing» may mean a position heralding democratic rule, liberalism, free market forces, etc (translator’s note).

[4] «Our Ukraine» is Yushchenko’s bloc, while the Party of Regions of Ukraine is the party of Yanukovych. The latter is from Donetsk. (translator’s note)

[5] Based on material provided by the Chernihiv Civic Committee for the Protection of Human Rights.

[6] The word «Viche» hearkens back to very early times in East-Slavonic lands and refers to public mass gatherings which were called when important decisions needed to be made.. (translator’s note) sued within its authority;

2.4.7 Identified modified live organisms in accordance with international agreements which can be imported into the country;

2.4.8 experience of cooperation with the public in the field of environmental protection, rational use of natural resources and ensuring ecological safety;

2.4.9 Other environmental aspects or factors which are of concern to the public when carrying out public environmental expert study, and when exercising other environmental rights.

Given that there is no indication of frequency, nor procedure for implementing this paragraph, nor responsibility for its non-fulfilment, these declarations remain on paper. The Ministry’s website also contains no statistical information about the provision of environmental information to the press which would make it possible to assess what on the list is implemented fully, what only partially, and what is not implemented at all.

In Paragraph 6 of the Provision the following absurdity has been formulated: «A request for environmental information may be turned down if the information constitutes a State secret». This directly contravenes Article 50 of the Constitution: «Everyone is guaranteed the right of free access to information about the environmental situation, the quality of food and consumer goods, and also the right to disseminate such information. No one shall make such information secret

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