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Overview of violations of rights and freedoms in 2007

27.07.2008

[1]

After 2004 there was a noticeable improvement in observance of rights and liberties.  This process, however, proved more to do with a weakening in the regime itself which had made a conditional step towards the people which increased the level of freedom. There were various factors involved including fear of the new people in power who expressed the wish to punish criminals, significant reshuffling of those in positions of authority, as well as many others.

The weakening of pressure brought to bear by the State on the individual resulted in greater opportunity to exercise those rights and freedoms which the State must not interfere with as it pleases, for example, freedom of speech, freedom of association, the right to free elections, freedom of business enterprise and so forth.

Yet where the State had a duty to do something to improve the situation (fulfil its positive duties, for example, by ensuring proper investigation into cases of torture, enforcement of court rulings, etc), the situation could not change radically since nothing was done to achieve this.

This explains the trends in 2007 when the factors which brought about a reduction in the State’s pressure on the individual gradually faded.

We can speak at present of a consistently bad situation as regards the prohibition of torture and ill-treatment; the right to life in the context of investigations into cases where life was taken; the right to a fair trial; the right to privacy; the right of access to information; and others.

The heightened political struggle in 2007 resulted in a general lowering in the level of political freedom which is gradually being eroded away. Political rights, for example, the right to be elected, are being undermined. This right can effectively only be enjoyed by members of political parties who make up less than 4% of the voters. In a democratic country party membership cannot be a precondition for standing for electoral office. The demand to introduce the imperative mandate which is in essence the guarantee of strict factional discipline also has an adverse effect on political freedom. Our parties are becoming ever more reminiscent of the Communist Party of the Soviet Union. All political forces violate the principles of the sovereignty of the law, for example, by putting pressure on the courts.

Of concern is an increase in hate crimes. The number of racially-motivated murders and physical attacks has risen significantly in recent years. At present there are no effective steps towards overcoming the problems of discrimination, racism and xenophobia.

There are also no major changes in safeguarding socio-economic rights. The growth in the economy has not been reflected in an increase in the income of a large percentage of the population and has only led to a still greater divide between the incomes of rich and poor. According to official statistics, a third of the population lives below the poverty line. The problem was particularly exacerbated through the considerable increase in communal charges and rise in inflation since the system for protecting the poor against such increases is inadequate.

Against this background a positive move was the judgment by the Constitutional Court to prohibit the suspension of rights through the annual law on the Budget.[2]  Making it clear that the force of rights as opposed to privileges cannot be suspended, the Court clearly confirmed the prohibition on any narrowing of the constitutional rights of citizens. Unfortunately, the government did not understand this judgment and yet against suspended the force of rights in the Budget for 2008, although this Budget was then also found to be unconstitutional by the Court for exactly the same reasons. The government thus demonstrates a lack of will to comply with the judgments of the Constitutional Court on protecting socio-economic rights.

As far as observance of human rights is concerned, two key issues can be identified which to a large extent influence the safeguarding of other rights and freedoms, these being the right to a fair trial and the activities of the law enforcement agencies.

Without court protection any right is doomed to exist only on paper, and therefore many rights become meaningless where the right to a fair trial is not ensured.

This mechanism for protection of rights is still not as effective as it should be. The courts are overloaded and judicial examination of cases goes beyond any reasonable timescale. Judges are too dependent on figures of authority, or even on those in charge of the judiciary, with this placing a question mark over their impartiality in examining cases of public importance, especially when one of the parties is a State body. Furthermore, even those court rulings which come into effect are often not enforced. When virtually two thirds of all court rulings are not enforced, it is difficult to speak of real protection of ones rights through the courts.

We should add that this problem is also pointed to by the European Court of Human Rights. 2/3 of its judgments against Ukraine and there are not less than 80 per year, concern violation of the right to a fair trial.

Under such circumstances it would be logical to hope for political will to change the situation. In 2006 indeed, the President announced a year of court reform and spoke on many occasions of the need for such reform. This was supported by the leading political parties in their pre-election programmes at the 2007 elections.

In December 2005 the National Commission for the Strengthening of Democracy and the Rule of Law which is a permanent advisory-consultative body under the auspices of the President began drawing up a Strategy Concept for Judicial Reform. On 10 May 2006 the President approved this Strategy Concept for improving the justice system to ensure fair trial in Ukraine in accordance with European standards[3], prepared by the National Commission.

Later, in order to implement the Strategy Concept, several draft laws were prepared which the President submitted to parliament. In April 2007 these drafts were placed on the parliamentary agenda, however before their consideration it transpired that the President had sent a letter recalling them.  He had “changed his mind” about supporting judicial reform due to pressure from the Supreme Court[4] and for other reasons of political expediency.

Since according to parliamentary procedure, draft laws on the agenda cannot be withdrawn, they were considered and passed by parliament in their first reading. Their future progress was however hampered by the dissolution of parliament.

Later the President changed the makeup of the National Commission for the Strengthening of Democracy and the Rule of Law.[5].  Some of those who had taken a direct role in drawing up the Strategy Concept and the relevant draft laws were removed, and some currently serving judges and employees of the judiciary were included. The new members of the Commission immediately created a subcommittee with the task of revising the Strategy Commission passed by the President. These actions in practice prove that the President has renounced his attention to introduce the Strategy Concept he approved despite the fact that it received favourable assessments from international experts from the Council of Europe, scholars, human rights defenders and judges of lower level courts.

The fate of judicial reform is now in the hands of parliament and the President who have, under pressure from the Supreme Court, virtually rejected its introduction. On the other hand certain political forces are aspiring to revise the content of the judicial reform in order to gain new levers of influence on the courts.

Another problem remains the activities of the law enforcement agencies. It is through their actions that violations occur of the right of freedom from torture and ill-treatment, the right to life In the context of a lack of effective investigation, the right to liberty and personal security in the context of arbitrary detention and arrest, the right to privacy as regards the use of investigative operations measures (for example, wiretapping, surveillance over Internet users, covert searches, etc) and the collection of personal data, as well as many other rights and freedoms.

After 2004 a sharp reduction was observed in human rights violations by the law enforcement agencies. However the situation has gradually and in part got worse again.

There are quite often reported cases of torture, cruel or inhuman treatment by police officers. There are also often cases of ill-treatment in places of confinement controlled by the State Department for the Execution of Sentences. Yet, with rare exceptions, there is virtually never an effective investigation resulting in those guilty being punished. There are numerous cases where there is no investigation into suspicious deaths, whereas such investigations are the duty of the State in safeguarding the right to life. There is particular procrastination in cases where the person suspected has links with high-ranking public officials. The classic example is the failure to bring to conclusion virtually any investigation into the deaths in road accidents where the car responsible was driven by somebody with connections.

Although surveillance of individuals has decreased since 2004, it remains at an excessive level. For example, the number of permits for wiretapping has fallen from around 40 thousand to 12 thousand per year however this figure is approximately 3-4 times greater than in countries of Central and Western Europe or the USA.

We should, however, note certain progress in the Ministry of Internal Affairs. This can be linked with the development of the work of public councils attached to the MIA and its regional departments; the development of mobile groups which monitoring human rights abuse in places where people detained by the police are held; as well as the creation of a separate Human Rights Department within the MIA system. There is also clear progress in the behaviour of the police with regard to safeguarding freedom of peaceful assembly, with cases where meetings are dispersed being isolated.

Against certain progress in the MIA, no improvements took place in the Department for the Execution of Sentences or the prosecutor’s office, with the behaviour of these bodies being more repressive than aimed at protecting human rights.

In view of this it is vital to implement the Concept Strategy for Reform of Criminal Justice.[6].  One would not want the fate of this to be similar to the process of judicial reform. Yet there is no evidence of great enthusiasm among politicians for implementing this.

The work of the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine (the Human Rights Ombudsperson) remains not effective and unsystematic. Although the Ombudsperson’s Secretariat has received proper financing over recent years, its influence has not grown. To a large extent the Ombudsperson’s reputation and trust in her were undermined by her political engagement, participation in the elections as number 2 on the candidate list of one of the political parties, and then her combination of deputy mandate with her position. Yet even if we do not consider this, then with the exception of some isolated cases, her activities have not been effective.

It has been three years since either parliament or the public saw reports from the Ombudsperson on human rights in the country, although this should be a systematic summary of the problems regarding human rights observance. The Ombudsperson virtually does not use the important instrument of constitutional submission. The Ombudsperson’s Secretariat does not have a register of complaints, and no results of the review of open proceedings are evident. Furthermore, the majority of complaints are simply sent to other authorities, the police, prosecutor’s office or Department for the Execution of Sentences, etc.  Nor is the confidentiality of the applicant preserved this placing the person who complaints at direct risk from the people against whom he/she is complaining. The Ombudsperson is thus not using the most effective mechanisms for influence. It must however be said that there has been an increase in the amount of information provided about her activities.

The Ombudsperson explains her insufficient activity as being due to shortcomings in legislation. However when she submitted a draft law on broadening her mandate[7], one could not observe ways for extending her powers. The Ombudsperson proposes that she be given the procedural right to appeal as a party in court proceedings which cannot fail to elicit bemusement. The Ombudsperson cannot provide a substitute for the system of legal aid to members of the public, and on the other hand this leads to a clear infringement of the principle of equality of parties in any court process. For example, appearing on the side of the victims in a criminal case, she is effectively taking part in the prosecution which is anything but the function of this structure. Such rights can be simply called a form of pressure on the court. It is clear that the Ombudsperson’s office has to this day not understood that the importance of its role lies in its own proceedings and administrative methods of human rights protection. What is vital to achieve is that decisions of the Ombudsperson become mandatory for the authorities[8], and if the latter don’t agree with them, they can appeal against them in an administrative court. That is, it would be worth strengthening the significance of the decisions of this body.

Last year the Ombudsperson finally decided to create a network of regional representatives. However it is paradoxical that in this she will be assisted by the heads of local State administrations – representatives of the local authorities[9], over whom these representatives should be watching. The clear conflict of interests does not bother the Ombudsperson, yet one can hardly hope for effective work.

It is thus clear that the court and parliamentary systems for defending rights and liberties are weak and often not effective.

Last year we spoke of the government standing still on observance of human rights.  However, considering the authorities’ tendency towards violations of human rights, it can be said that it is standing still on a slope and gradually sliding towards an abyss. Without significant reforms therefore, the achievements of the last years will be totally lost. Yet the possibility for these reforms is being blocked by a long-term political crisis effectively generated by the constitutional reforms of 2004.  In conditions of permanent conflict within the regime it is impossible to achieve reform. One need only mention the rule that with a change in Government, all government draft laws already drawn up are definitely spent to be agreed against with all interested ministries and departments. Within the executive branch of power, therefore, it is virtually impossible to draw up draft laws and implement any policy because of the almost annual change in government and the re-agreeing over years of the majority of draft laws. The President in turn is absolutely inconsistent in his policy, changing his views on the basis of political expediency (for example, over the judicial reform).

Euro-integration plans of politicians remain fine words only since they are impossible without reforms on ensuring rights and freedoms. The EU-Ukraine Cooperation Plan in the part considering human rights has not been implemented at all. For over two years already all measures on its implementation have been postponed by the Ministry of Justice till the following year.

Recommendations from UN bodies, the Council of Europe and OSCE are practically not being implemented and are ignored, and State representatives at meetings of these bodies look feeble since they have virtually nothing to talk about barring certain progress in the MIA.

We must report therefore that there is no systematic policy at all on improving observance of rights and freedoms.[10]. Under such conditions an improvement in the situation is not a point of orientation of the regime and achievement of this goal remains therefore elusive. This will become even more evident in the next year when the fate of the reforms to the judicial system and system of criminal justice becomes clear.

 



[1]  By UHHRU Executive Director Volodymyr Yavorsky.

[2]  Judgment by the Constitutional Court following a constitutional submission by 48 National Deputies asking whether the following articles complied with the Constitution: 29, 36, 56 § 2, 62 § 2, 66 § 1, Items  7, 9, 12, 13, 14, 23, 29, 30, 39, 41, 43, 44, 45, 46 of Article 71, Articles 98, 101, 103, 111 of the Law on the Budget for 2007 (the case of social guarantees for citizens). The judgment is available here : http://ccu.gov.ua/pls/wccu/P000?lang=0. while information about the ruling can be found on both www.helsinki.org.ua and www.khpg.org.ua 

[3] Presidential Decree from 10 May 2006 №361/2006.

[4] See, for example, “Head of the Supreme Court Vasyl Onopenko is concerned that judicial reform in Ukraine could contradict its main objective, improving the justice system and making it meet people’s needs, and is asking the President to withdraw the draft Law “On amendments to the Law “On the judicial system of Ukraine” // Information on the Verkhovna Rada website from 22 March 2007  http://scourt.gov.ua/; See also the Appeal from the Council of Judges of Ukraine to the President from 9 February 2007.

[5]  Presidential Decree № 914/2007 from 24 September 2007 “On a new makeup of the National Commission for the Strengthening of Democracy and the Rule of Law” http://president.gov.ua/documents/6758.html.

[6]  Approved by Presidential Decree No. 311/2008 On the decision of the National Security and Defence Council from 15 February 2008 “On the process of reforming the system of criminal justice and law enforcement agencies”

[7] Cf. Draft Laws № 1302 from 7 April 2008 on amendments to the Code of Administrative Procedure of Ukraine (on participation in a case of the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine), http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=31246; № 1301 from 07.04.2008 Draft law on amendments to the Civil Procedure Code  (on participation in a case of the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine), http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=31245, № 1299 from 28.12.2007 on amendments and additions to the Criminal Procedure Code on providing the Authorised Human Rights Representative of the Verkhovna Rada and representatives with the possibility for court defence of human rights and freedoms, http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=31243.

[8] There is an attempt at this in Draft Law №2569 from 27 March 2008 on introducing amendments and additions to the Law “On the Authorised Human Rights Representative of the Verkhovna Rada" (on the binding power of decisions by the Ombudsperson on eliminating violations of citizens’ rights and freedoms), http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=32619.

[9] Cf. for example, Viktor Yushchenko: “The influence of the institution of the Ombudsperson on decision-making in the country should be heightened” //  http://president.gov.ua/news/9641.html.

[10] An exception is the Presidential Decree № 39/2006 “On an Action Plan for fulfilling Ukraine’s duties and commitments arising from its membership of the Council of Europe” Available at http://president.gov.ua/documents/3854.html, as well as the Concept Strategy for Judicial Reform and reform of criminal justice..

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