“Prava Ludiny” (human rights) monthly bulletin, 2003, #07

The participants of the round table are pointing out that the observance of human rights in Ukraine is attentively controlled by many state institutions of the independent Ukraine, by legislative, executive and judicial power branches, human rights protecting organizations and democratic community. The Supreme Rada of Ukraine permanently improves the legislative base that guarantees the observance of human rights.

The Committee in charge of human rights, national minorities and international relations, along with the legislative activities, exercises the systematic control of the realization of human rights and of the violations in this sphere. In December 2001 the Committee, jointly with law-enforcing structures and other corresponding agencies, organized the public hearings «On the observance by Ukraine of the demands of the Conventions of the UNO and the Council of Europe against torture, cruel, inhumane and degrading treatment and punishment». The constructive, by the assessment of experts, recommendations addressed to the corresponding power structures and agencies were adopted at the hearings.

The participants of the round table tried to analyze (at least indirectly) the state of the fulfillment of the above-mentioned recommendations.

Besides, the participants of the round table discussed the situation with the observance of human rights in Ukraine. One of the subjects of this debate was «The report on the observance of human rights in Ukraine – 2002», which had been prepared and published by the Bureau in charge of questions of democracy, human rights and labor of the US State Department.

After the discussion of a number of urgent and acute questions on the observance and violations of human rights, taking into account the propositions expressed during the round table, the participants want to present the following recommendations:

1. To the Supreme Rada of Ukraine, the Cabinet of Ministers of Ukraine, ministries and agencies of Ukraine:

-  To launch the propagandistic campaign concerning human rights and freedoms guaranteed by the Constitution and operating laws of Ukraine, as well as the European Convention on human rights, other international conventions and acts signed by Ukraine. In the framework of this campaign the most urgent materials about the protection of human rights and freedoms must be regularly printed in periodicals, transmitted by radio and TV; these materials must be prepared by the Ministry of Justice of Ukraine.

-  To analyze the operating laws of Ukraine and to present the propositions on introducing the changes and amendments to the Criminal and Civil-Procedural Codes of Ukraine with the aim of decriminalization of some kinds of punishment and the improvement of the existing norms according to the international standards in the sphere of human rights protection.

-  To extend the legal principles of judicial and civil control of the activities of law-enforcing organs.

-  To prohibit legislatively the interrogations of the detained and arrested in the absence of advocate.

-  To prohibit legislatively to courts to use as proofs the evidence given under torture.

-  To limit legislatively the term of keeping in custody during all stages of investigation and trial, to replace the incarceration by other preventive measures not connected with the deprivation of liberty.

2. To the Cabinet of Ministers of Ukraine:

-  To improve the clarity of the reports sent to the international organizations on the fulfillment by the Ukrainian government of the international obligations in the sphere of the observance of human rights, to engage human rights protecting and other public organizations in the preparation of such reports.

-  To order the Ministry of Justice of Ukraine to prepare the analytic report on the modern state of the observance of human rights in Ukraine. To direct the text of the report to the UNO Commission on human rights, Council of Europe, OSCE, the USA State Department and «Amnesty International». To publish the report in periodicals.

-  To order the Ministry of Justice of Ukraine to consider the question jointly with other corresponding ministries and agencies and to present the recommendations on the creation of Public Surveillance councils in the regions, where penitentiary establishments are situated. To intensify the public control of the activities of law-enforcing organs in the penitentiaries.

-  To consider the possibility of the legislative guarantees of recompensing the damage inflicted to the victims of torture and degrading treatment.

-  To apply the effective measures for the improvement of the upkeep conditions in penitentiary establishments and preliminary prisons.

-  To consider the possibility of introducing changes to the corresponding legal acts with the aim of decreasing the term of pre-trial incarceration (72 hours) during the consideration of administrative offences.

3. To the Supreme Court of Ukraine, General Prosecutor’s office of Ukraine, ombudsperson:

  To intensify the control of the observance of human rights in penitentiaries, especially in the preliminary prisons.

  To apply all possible measures for rendering the timely, complete and unbiased information to the international community about the measures realized in Ukraine for guaranteeing human rights, preventing torture and cruel treatment.

  To provide the timely and unbiased medical examination of the persons, who complained about the application of torture to them.

  4. To the Supreme Court of Ukraine, General Prosecutor’s office of Ukraine, ministries and agencies of Ukraine:

  To guarantee the bringing to responsibility of the state officers guilty of applying torture, inflicting sufferings, of the facts of violence.

  To change the court practices, to use more frequently the punishment measures not connected with deprivation of liberty, to increase the number of alternative punishments for petty offences.

  To consider in the 3 ^rdquarter of 2003 at the sittings of the collective and deliberative councils (collegiums) the problems of guaranteeing human rights within the limits of their competence. To inform the Supreme Rada Committee in charge of human rights, national minorities and international relations and the ombudsperson about the results of this consideration.

  To inform, every three months, the Supreme Rada Committee in charge of human rights, national minorities and international relations about the results of the consideration of the appeals and complaints of citizens against the application of torture and degrading treatment by state officers.

  To use more actively the mass media for informing the population about the measures taken for guaranteeing human rights and preventing the violations of human rights on the side of the officers of law-enforcing organs.

5. To profile committees of the Supreme Rada of Ukraine, interested ministries and agencies:

  To support actively during the approval of the State budget of Ukraine the allocation of the proper sums for financing the upkeep of the persons, who stay in penitentiaries and preliminary prisons, for restoration and modernization of these establishments.

On 13 June 2003 the town court of Yalta considered the civil case on the complaint of Ragim Gumbatov, the editor-in-chief of the newspaper “Alubika”, against the illegal actions of local officials. Gumbatov appealed against the refusal of the officials of the Alupka town council, in particular Alupka mayor Valeriy Andyk, to render information to journalists.

In December 2002 the Yalta court took the similar decision, but defendant V. Andyk appealed this decision in the second court instance, and the Appeal court of the Crimea directed the case to the court of first instance for another consideration.

The decision the Yalta town court obliged Alupka mayor Valeriy Andyk to render the needed information to journalist Ragim Gumbatov. The court decision will come into effect in a month. The editor was represented in court by Arsen Osmanov, a lawyer of the Committee on the monitoring of the freedom of speech in the Crimea.

The Committee on the monitoring of the freedom of speech in the Crimea, [email protected]

25 June 2003. Today the Brovary town court of the Kyiv oblast partly satisfied the claim of the Brovary town council against the newspaper «Brovarskiy kuryer» and obliged the editorial board to refute the information published in the weekly «Brovarskiy kuryer» No. 9 of 11 October 2002 and No. 10 of 25 October 2002.

We want to remind that Brovary mayor Viktor Antonenko demanded from the editorial board to refute the untrue information and to pay him the compensation of moral damage equal to 40 thousand hryvnas. The publications in the newspaper were devoted to the celebration of the Day of the town. The newspaper published the interview of the head of the budget committee of the town council, who said that 100 thousand hryvnas had to be allotted for the celebration. The budget committee protested against such expenses, but the deputies of the town council approved the program. The opinion was expressed in the editorial comment that it should be more reasonable to allot such great amount of money not for the celebration, but for the salaries of the workers of communal sphere.

The Institute of mass information, «Barometr svobody slova»,

June 2003

23 June 2003. Okhtyrka town court (the Sumy oblast) issued the decision to satisfy the claim of Mirgorod mayor Oleksandr Pautov against Viktor Kozoriz, the editor of the opposition newspaper «Mirgorodska Pravda». In the verdict the court decreased the compensation sum from 50 thousand hryvnas (demanded by the mayor) to 600 hryvnas from the editorial board and 1500 hryvnas from Kozoriz. At the same time the court decided to cancel the seizure of Kozoriz’s flat that had been imposed in March «with the aim to secure the claim». The newspaper is also obliged to publish the refutation. Viktor Kozoriz, who, because of his conflict with the mayor, had, in fact, to move in Kharkov, intends to appeal against the court decision.

The mayor was offended by the publication in the December issue of the newspaper, in which Kozoriz called Pautov «an absolutely untalented manager», who «has rather vague notion of the economic policy and the principles of managing a modern town». The claimant believes that these words, as well as the phrase: «…he does not understand at all, by whom and for what he was elected, and to whom he must serve», inflicted the damage to his honor, dignity and business reputation equivalent to 50 thousand hryvnas.

The Institute of mass information, «Barometr svobody slova», June

19 June 2003. The Nikolayev branch of «Privatbank» handed a claim against the newspaper «Ridne Pribuzhzhia» published by the Nikolayev oblast state administration and the Nikolayev oblast council. «Privatbank» demands 50 thousand hryvnas of compensation for the publication of untrue (in the opinion of the claimant) information disgracing the reputation of the bank. On 1 February 2003 the newspaper published the information about the meeting of the leaders of oblast trade unions with governor Oleksiy Garkusha. «Privatbank» was mentioned in the article twice: as the new owner of the plant «Kristal», with the appearance of which the reduction of the staff was expected at the plant, and as the bank, which obtruded the system of plastic cards for paying salaries to the personnel of the Zhovtnevy central district hospital of the Nikolayev. The article read that the services of the bank would cost 130 thousand hryvnas to the hospital. The administration of  «Privatbank» insists that the bank has no relation with the plant «Kristal», and that the production and maintenance of the plastic cards are gratis for the hospital.

Tetiana Odintsova, the editor-in-chief of «Ridne Pribuzhzhia», communicated to the IMI that the information spread by the newspaper was given by the trade union leaders of the plant «Kristal» and the Zhovtnevy hospital. On 20 June these leaders will be summoned to court as witnesses. The Nikolayev branch of «Privatbank» handed the claim to court on 6 March 2003. Two considerations of the case have been already conducted.

The Institute of mass information, «Barometr svobody slova», June 2003

24 June 2003. The Appeal court of the Lviv oblast took the decision that the actions of Lviv mayor Lubomir Buniak, who drove local journalist Bogdan Kufrik from mayor’s press conference, were illegal. Thus, the court cancelled the decision of the Galitskiy district court of Lviv, which rejected the complaint of B. Kufrik in March 2003. Yet, the claim was satisfied by the Appeal court only partly – the journalist will not get the demanded compensation of the moral damage equal to 5000 hryvnas. Soon after the incident, which happened on 7 August 2002 at the briefing, two more most popular Lviv newspapers, «Postup» and «Vysokiy zamok», supported «Ekspress» and B. Kufrik. These newspapers published the joint appeal, in which they accused L. Buniak of the violation of the Ukrainian laws on the press and information, as well as the law «On state service», which regulate the access of journalists to information. The newspapers appealed to the mayor to apologize publicly to the journalists and inhabitants of Lviv.

The Institute of mass information, «Barometr svobody slova», June 2003

On 17 June the distributors of the newspaper of the bloc «Nasha Ukraina» in Kharkov came across an unpleasant incident. The workers of the local militia confiscated from them 410 copies of the edition «Bez tsenzury». The political weekly was distributed free of charge in the passage of one of Kharkov subway stations. About 5 p.m. militiamen came to distributors Igumnov and Poltavets and ordered them to walk to the station militia room. Here the militiamen compiled the protocol on the confiscation of 410 copies of the edition. The workers of the newspaper explained to our correspondent that the law-enforcers adduced the formal reason that the distributors allegedly impeded the movement of subway passengers. Yet, answering the official request of the assistants of MP Volodymir Filenko about the legal grounds of these actions, senior sergeant Sapelnik informed that he fulfilled the order of captain Sukhoruk, the head of the department of subway guard. The members of the editorial board of the weekly «Bez tsenzury» stated that this was not the first case of persecuting the distributors of the newspaper in the Kharkov oblast.

Since 18 June 2003 the Poltava TV and radio company «UTA» stopped to broadcast on the 24 ^thTV channel, on which it worked for many years.

The attempts to destroy the TRC «UTA» began much earlier, when Georgiy Chechik, the head of the TV company, «quarreled» with A. Kukoba, the Poltava mayor at that time. At first the subscribers of the cable network of Poltava lost the opportunity to watch the transmissions of the TV company: in May 2001 four Poltava operators of cable TV switched off the TRC «UTA». And several days later the TV company «Misto» began to work. The new company was founded by three (out of four) operators of cable TV and one physical person. The goals of the creation of this TV company and the level of its independence are quite obvious from its features. It is widely known that, having the official status of a private company, «Misto» works for the mayor.

The next attack on the TRC «UTA» was realized through the Poltava Fund of communal property. When the TV company, according to the contract, transferred the money for the rent of the building, where it worked, the fund returned the money thrice, until the officials from Kyiv interfered to the situation. After this the campaign began with the purpose to evict the TV company from the building by the address 43 Zhovtneva St., where the company «Poltava plus» was situated. The head of the oblast state administration issued the order to dismount the transmitting antenna. The authorities tried to force the manager of the building (The House of Technique) to cancel the rent agreement with «Poltava plus». The essence of the pretensions of the local sanitary station was that the transmitting antenna located on the roof of the building allegedly radiated the radio waves dangerous for health, although several months earlier the main sanitary physician of Poltava had signed the permission for the work of the TV company.

When the attempts to evict the company from the building were repulsed, the officials began to apply more strict methods.

During the parliamentary election campaign the TRC «UTA» cooperated with Kyiv TV company «TET». After the election, in November 2002, «TET» handed a suit against «UTA» demanding to pay the compensation equal to 9,300,000 hryvnas for violating the conditions of the contract. The sum of the claim exceeded the actives of the TV company more than in three times. By the opinion of Pavel Moiseev, a lawyer of «Internews-Ukraine», to whom the TRC «UTA» turned for the legal aid, the demanded sum and other circumstances of the case showed that the actions of the claimant were directed at the destruction of the company. By the way, just at that time the National council in charge of TV and radio broadcasting had to announce the competition for the use of the 24 ^thchannel, which was used then by the TRC «UTA».

Further events confirmed that the persecution of the TRC «UTA» was «ordered» by some influential persons, since on the next day after the claim was handed to the economic court of the Poltava oblast the court issued the resolution about the arrest of the property and bank accounts of the TV company and sent this resolution to the state executive service. The executors fulfilled the decision quickly: on the next day the accounts of «UTA» were arrested (usually this procedure takes 2-4 weeks). As a result, the activities of the company were almost paralyzed.

The TRC «UTA» handed the counter-claim on the acknowledgement of the invalidity of the contract between «UTA» and the TRC «TET».

The economic court of the Poltava oblast approved the decision on the collection from the TRC «UTA» of 9,300,000 UAH of compensation and 17,118 UAH of legal expenses. At that, according to the words of lawyer of «Unternews-Ukraine» Pavel Moiseev, the court ignored all explanations of the TRC «UTA», refused to satisfy its counter-claim and announced a part of the decision in the absence of the parties, thus brutally violating the norms of the material and procedural right.

On 12 March 2003 the Kharkov appeal economic court considered the appeal of the TRC «UTA» and acknowledged the contract between the TRCs «UTA» and «TET» to be invalid. «TET» did not appeal against this decision.

Meanwhile the TRC «UTA» handed the documents for the participation in the competition of the National council for the right to use the 24 ^thchannel, since the term of their license had finished by that time. At the first sitting of the National council the votes of eight members of the council divided into two equal parts: 4 members voted «for» and 4 – «against». It is interesting that Lilia Mironovich, the representative of the National council in charge of TV and radio broadcasting in the Poltava oblast and a former referent of P. Shemet, the deputy head of the Poltava oblast administration), who, by logics, had to protect the interests of the Poltava TV company, voted for giving the license… to the Kyiv TRC «TET», loyal to the SDPU (u). The members of the sitting ignored the fact that the TRC «UTA» had the most modern equipment in Poltava and the many-year experience of work.

In several weeks, at another sitting of the National council, the final decision was taken: the 24 ^thPoltava channel was given to the TRC «TET».

However, there is some hope yet that the TRC «UTA», which became really independent after the numerous ordeals with political censorship, will return to the Poltava air: the company handed the documents for the participation in the competition for another TV channel. Of course, if this competition would be honest…

Valentina Krivda, a correspondent of the all-Ukrainian weekly «Shliakh Peremogi», learned that the session of the Krivoy Rog town council would be held on 28 May 2003 two days before the event. She got this information from the workers of the town executive committee.

This principal and meticulous journalist takes part in almost all briefings of local authorities. The situation with visiting the sessions was not so good in spite all efforts of V. Krivda. She handed the accreditation requests and appeals to the officials of the executive committee. Yet, as V. Krivda points out in her appeal to town mayor Yuri Lubonenko, during 12 years of the Ukrainian independence she managed to be present only at one session of the town council.

Thus, the journalist decided to fight for her professional rights and to struggle with the discrimination. In the appeal of 26 May 2003 she referred to the European Convention on the protection of human rights and fundamental freedoms, to the Ukrainian Constitution, to the Laws of Ukraine «On information» and «On printed mass media (the press) in Ukraine», demanded put an end to the creation of artificial obstacles and to render her the right to be present at the session.

Since V. Krivda knew how the mayor and his apparatus reacted to citizens’ initiatives, the next day she handed the appeal to town prosecutor Vasyl Kravets. The complete text of this appeal is quoted below.

«On 26 May 2003 I turned to town mayor Yu. Lubonenko with the appeal about my constitutional right for information. I asked to give me the opportunity to be present at the session of the town council, which would be held on 28 May 2003. I registered the appeal at 14:00 in the office of the town executive committee.

On the same day I orally familiarized with the text of the appeal the officials of the deputies’ room, organizational department and press service of the executive committee. From this talk I understood that I would not be permitted to the session of 28 May (I also was not admitted to the previous session that was conducted on 23 April 2003).

On 26 May 2003 I turned to S. Dzhabbarov, the prosecutor of the Dzerzinski district of Krivoy Rog, who explained me my rights and advised to turn to the town prosecutor’s office, as the organ competent in such cases.

Thus, on the basis of Article 10 of the European Convention on the protection of human rights and fundamental freedoms, Article 34 of the Constitution of Ukraine, Article 9 of the Law of Ukraine «On information», Article 26 of the Law of Ukraine «On printed mass media (the press) in Ukraine», the Law of Ukraine  «On the introduction of changes to some legal acts of Ukraine concerning the questions of guaranteeing and unhampered realization of citizens’ right for the freedom of speech», I am asking you to take the appropriate measures for the realization of my professional journalist’s right to obtain the information freely at the sessions of the town council, in particular, at the session of 28 May 2003».

The appeal was supplemented with 10 materials, including the copies of the article «Who needs the journalists of the opposition mass media to be personas non grata at the sessions of the Krivoy Rog town council?» published by the newspaper «Krivoy Rog vecherniy».

On the day of the beginning of the session the journalist handed another appeal to the town prosecutor, from which one can learn about the further course of events:

«I have to inform you that, in spite of my appeals to the prosecutor’s office of 26 and 27 May 2003 with the request to prevent the arbitrary actions of the town power impeding my professional journalist’s activities, on 28 May 2003 the law-enforcing organs of the town executive committee did not admit me to session of the town council (at which the town prosecutor was present). I did not receive any written refusals to my written appeal to the mayor of 26 May 2003.

In the connection with the illegal restriction of my right to obtain the information freely at the sessions of the town council of 23 April 2003 and 28 May 2003, I am forced to send the phoned telegram to General Prosecutor of Ukraine S. Piskun and Prime-Minister of Ukraine V. Yanukovich. The text of the telegram is the following:

«As a result of the passivity of the town prosecutor’s office, Krivoy Rog mayor Yu. Lubonenko and M. Shvets, the head of the Dnepropetrovsk oblast state administration, on 28 May 2003 I, a correspondent of the all-Ukrainian weekly «Shliakh Peremogi», was not admitted to the session of the town council. I am asking to direct the special commission of the General Prosecutor’s office, which commission will include the representatives of the international organization «Reporters without frontiers», for studying the problem and for fighting with the violations of the freedom of speech in the Krivoy Rog region».

The responses to the V. Krivda’s appeals clearly demonstrate the attitude of the local authorities to the role and rights of independent mass media.

Here are several responses by V. Petrobnin, the executive officer of the town executive committee:

1. 30 April 2003 – To V. Krivda.

In response to your letter No. 2205/13 of 22 April 2003 we are informing that more than 100 editions of town and regional level are registered in Krivoy Rog, several tens of printed mass media are published. The representatives of the majority of Krivoy Rog mass media want to be present at the sessions of the town council, at the sittings of the executive committee and the meetings of various levels. It is rather difficult to satisfy these demands. So, the system is developed, when the representatives of electronic mass media, state and municipal editions are invited first of all. Every journalist has the opportunity to familiarize with the adopted decisions and to obtain the exhaustive information about the course of the sittings or sessions (including the audio version) in the press service of the executive committee. You also may use this opportunity.

2. 20 May 2003 – To V. Krivda.

In response to the appeals of 22 April 2003 and 23 April 2003.

According to Article 2 of the Law of Ukraine «On the procedure of the elucidation of the activities of the organs of state power and organs of local self-rule in Ukraine by mass media», «organs of state power and organs of local self-rule are obliged to give to mass media the complete information about their activities through the corresponding informational services of the organs of state power and local self-rule, and to guarantee the free access to this information». The corresponding informational services of the Krivoy Rog town council and executive committee are represented by the town newspaper «Chervony girnyk» and the TV and radio company «Rudana». You can obtain the exhaustive information about the sessions and sittings of the executive committee of the town council and to familiarize with the adopted decisions in the press service of the town council and the executive committee.

3. 20 May 2003 – To V. Krivda.

Copy: to the executive committee of the Krivoy Rog town council

In response to the appeal of 23 April 2003.

Respected Ms. Krivda!

The procedure of the convocation of the sessions of the council, preparation and consideration of questions, adoption of the decisions concerning the agenda of the sessions and other procedural questions, as well as the order of the work are stipulated by the regulations of the council, which is approved by the deputies of the council and is a normative act of local self-rule.

According to the mentioned regulations, representatives of the press are invited to the sittings of the town council only if necessary. According to the Law of Ukraine «On organs of local self-rule in Ukraine» and the regulations of the Krivoy Rog town council, the propositions on the questions considered by the council may be presented only by the mayor, permanent commissions, deputies, executive committee of the council and the gatherings of citizens.

So, it is clear that Article 19 of the Constitution of Ukraine does not operate in Krivoy Rog: only the actions of the town council are regarded as legal there.

So, the question put by Valentina Krivda in her telegram to Mykola Shvets, the head of the Dnepropetrovsk oblast state administration, seems to be absolutely logical: «… by which motives I did not get the agenda of the day session, was not registered by the press service of informational requests and did get the journalist’s accreditation? Who will be responsible, in the accordance with Article 171 of the Criminal Code of Ukraine, for the premeditated impediment to my professional activities?»

Dear colleagues!

The editorial board of the Lviv newspaper «Lvivska gazeta» must make public the appeal concerning the situation that was observed during the regular tax check of our newspaper. Unfortunately, the methods used by the tax officers testified that they had some other goals, not only the routine check of documents. This is a part of the total pressure on the newspaper, which, in our opinion, has the political reasons.

During the tax check the inspectors phoned to the advertisers and partners of our newspaper. Later we learned that it was caused by the mentioning of various firms not only in the advertisements, but also in common articles. These people were summoned for talk, the tax officers demanded from them to present the documents on the cooperation with our edition. At the same time, similar documents of the newspaper were not examined. Service cars of «Lvivska gazeta» are permanently escorted by the representatives of tax inspection. The private salesmen of newspapers are questioned about the number of copies that they get and sell. At that, only those salesmen are checked, who sell the newspaper «Lvivska gazeta». The inspectors explain honestly that the sale of this newspaper is the reason for the checks.

There is another interesting fact: the illegal tax checks of the cultural-creative center «Dzyga», a founder of «Lvivska gazeta». The tax officers work without proper documents, and this, according to the operating laws, may be a reason for starting a criminal case. They orally demand to show them the internal documents of the firm and refuse to prove the legality of their demands. They even refuse to introduce themselves. The local officials of the State Tax Administration do not respond to the written requests from «Lvivska gazeta» and «Dzyga».

Several days ago a significant incident occurred in Kolomyia (the Ivano-Frankivsk oblast), which demonstrated «the professionalism and objectivity» of the tax officers. A small trader, who, among other editions, sells the newspaper «Lvivska gazeta» was accused of the cooperation with our edition since March 2000. The absurdity of the situation lay in the fact that the first issue of our newspaper was published on 16 September 2001, and the newspaper began to be sold in the Ivano-Frankivsk oblast only in spring of 2003.

We suppose that the current situation is a consequence of the principal position of «Lvivska gazeta» and the publication of the series of the materials containing the unbiased information concerning some representatives of tax inspection and people close to them. We also think that the actions of tax officers are a part of the campaign directed at «settling the order» in the informational space of Lviv and the Western Ukraine on the eve of Presidential election.

It is extremely difficult to work and to publish a daily newspaper under the conditions of permanent tension and mental stress.

The editorial board of «Lvivska gazeta» has already turned to the National Union of journalists of Ukraine (Igor Lubchenko), Monitoring Committee of the PACE (Hanne Severinsen) and profile committee of the Supreme Rada of Ukraine (Mykola Tomenko) asking to help the newspaper in this situation.

Today, on 25 July 2003, judge Zhanna Bernatskaya read out the decision on the claim of Andrey Fedur against the General Prosecutor’s office of Ukraine and the newspaper «2000». The case was considered by the Pecherskiy district court of Kyiv.

The matter of the case was the following.

In an interview:

(http://gpu.gov.ua/ua/archive.html?id=86)to the newspaper «2000» (No. 6, September 2002) General Prosecutor of Ukraine Sviatoslav Piskun, who is known as a very truthful man, answered a question about the grounds for the detention of A. Fedur in Lugansk. Piskun said: «He was driving a stolen car, which had been hijacked and was wanted by militia». Besides, Piskun told in the same interview: «It is known that judges more than once sent the appeals to the collegium of advocates about the deprivation of Fedur and his colleague Ageev of the licenses for advocate activities because of the disrespect for the court showed by them during the trial. Both advocates used to insult the judges. And, if the judges wanted to remove Fedur and Ageev from the trial, they could do it much earlier. Yet, the advocates were not deprived of the licenses, they only were summoned to the collegium twice and warned about the necessity to keep within the law».

These statements by Piskun were fully mendacious. Fedur never drove a stolen car, and his Jeep was never hijacked or wanted by militia. Advocates Fedur and Ageev never committed the violations of advocate ethics or showed disrespect to court, they got no warnings from either the collegium of advocates or other advocate organizations.

Immediately after the publication of this interview Andrey Fedur turned to court. The advocate demanded the publication of the refutation by the General Prosecutor’s office and apologies.

The court attached the issue of the newspaper «2000» with the mentioned interview of Piskun to the materials of the case. By the way, another defendant, the newspaper «2000», has already published the refutation of the information spread by S. Piskun.

However, the decision, which has been announced today by judge Bernatskaya, reads that the court rejected the claim of A. Fedur, since THE CLAIMANT COULD NOT PROVE THAT THE DEFENDANT REALLY SPREAD THE ABOVE-MENTIONED INFORMATION.

So, the judge «did not notice» the facts that the newspaper was attached to the case materials as a proof, and that a representative of the newspaper confirmed the fact of publication.

However, such decision was not unexpected. The term of judge’s authorities of Bernadskaya will end on 4 August 2003, and, to remain on this post, she will have to pass through the procedure of the election by the Supreme Rada of Ukraine. On 1 July 2003 advocate A. Fedur sent the appeal to the Supreme Rada (the text of the appeal you can find on the site

http://ageyev.org/cases/feldman/azarov/bernatskaskarga2003-07-01.htm), in which the advocate stated: the activities of judge Zhanna Bernadska evidenced that she was unworthy of being elected to judge’s post for term of life.

25 July 2003
Press release of the lawyers company «Ageev, Berezhnoy and partners»
http://ageyev.org e-mail: [email protected]

Advocates of Boris Feldman got the complete text of the decision of judge Zhanna Bernatskaya on the suit of B. Feldman vs. N. Azarov and the State Tax Administration of Ukraine (STAU).

We want to remind that B. Feldman demands from the STAU and N. Azarov to refute the information spread by the defendants that the audio records made public by major Nikolay Melnichenko were faked, and the falsification was made by the order of B. Feldman. The interests of Boris Feldman in this case are represented by advocates Viktor Ageev and Andrey Fedur. The text of the writ can be found on our site:

http://ageyev.org/cases/feldman/azarov/pozov27.05.02.htm

The agency UNIAN and the TV channel «Inter», who spread this information, were also brought to trial as co-defendants. Representatives of the UNIAN and «Inter» insist that they spread only the information passed to them by Azarov, and with reference to Azarov. However, Feldman had no complaints against the UNIAN and «Inter», although the claim was based on the information published by the UNIAN and by the TV channel «Inter» in the news feature «Podrobnosti».

In the decision judge Bernatskaya pointed out that «the plaintiff did not prove the fact of distribution by the defendants of the information detractive for him».

Yet, the decision reads that the court established the fact of the corresponding statements by Azarov at the press conference that had been conducted on 16 May 2002 in the STAU. This fact was confirmed by Azarov’s representatives. Besides, the judge wrote in the decision that these statements were based on the information passed to Azarov by the Main directorate of tax militia, and this information was allegedly obtained during the ODA. The court also interrogated witness V. Grishchenko, an officer of the tax militia, who worked in the group, which investigated the case of the bank «Slavianskiy». Grishchenko declared at the trial that Azarov allegedly got the information about Feldman’s statements (when the latter already stayed in the preliminary prison) from their investigating group. Representatives of the UNIAN and «Inter» confirmed in court that they had distributed the information that was made public by Nikolay Azarov at the press conference.

Yet, all this evidence did not persuade judge Bernatskaya that the above-mentioned information really had been communicated by Azarov at the press conference on 16 May 2002.

The photocopy of the decision of judge Zh. Bernatskaya is published on our site – http://ageyev.­org/cases/feldman/azarov/bernatska2003-07-23.htm

The fact is noteworthy that the representatives of the STAU and Azarov even did not try to prove in court that Melnichenko’s records were «faked» or that these records were made by Feldman’s order.

On 3 June 2003 a trial was conducted in one of military units of the Kharkov oblast. Serviceman T., whose term of army service was ending, was accused of the humiliation and beating of young soldier Ivan P., who, as a result of this beating, had to undergo the surgical operation: his spleen was excised. According to Article 406 part 3 of the Criminal Code of Ukraine, the court acknowledged T. to be guilty and condemned him to 2 years of the service in disciplinary battalion.

I, being a representative of the Kharkov oblast union of soldiers’ mothers, was present at this trial in the military unit and at the trial that took place in the court martial of the Kharkov garrison. I managed to talk with the condemned and his parents, as well as with the victim and his mother. We also sent a letter to the senior commander of the unit with the request to comment the situation. We asked the mother of the victim to write us the letter describing her opinion about the reasons of this incident. After the trial we met with the judge in charge of this case. We got the answers from all of them.

We learned that the victim had been enlisted to the army on 14 November 2002 by the Darnitskiy district of Kyiv. Before the mobilization, in June 2002, he got a cerebral trauma with the partial loss of hearing and haematoma in the right part of the head. The doctors of the medical institute, who examined Ivan P., advised him, according to the words of his mother, to be especially careful for at least six months. So the question appears: why the doctors of the recruiting commission ignored the recommendations of specialists and recruited the boy, who was half-deaf and did not recover from his trauma yet. We have many proofs of the fact that ill boys often become victims of «dedovshchina».

The mother of the victim points out in her letter that her son almost did not complain at the beginning of his service, although the situation was obviously not normal. «In winter the soldiers worked in boiler-house and tried to warm their bedrooms with a small stove. In spring they made a redecoration of the buildings, which, according to the words of battalion commander B., needed the thorough repairs… Later my son told me that they were not beaten at first, but the young soldiers (four boys) had to fulfill all dirty work». «After the order on spring demobilization the older servicemen began to apply not only moral, but also physical humiliations. When I asked my son why they had not complained to the officers, he answered that they were afraid and decided to be patient. Well, this patience resulted in the loss of spleen…»

The senior commander of the military unit wrote in his response to our letter: «This was the first case since 1994, when a serviceman from our unit was condemned for a crime according to this article of the Criminal Code. Besides, I want to inform you about some peculiarities of this criminal case. During the investigation of the case it was find out that on 11 April 2003 the victim was taken to the military hospital, where he underwent the surgical operation (ablation of spleen). On 14 April 2003 the head of the Kharkov military hospital informed me that the operation was probably caused by a trauma got by private P. After the operation the serviceman explained to his mother and to the investigating officer of the militia prosecutor’s office that he got the trauma during the fulfillment of some work. On 15 April a criminal case was started after this fact. Yet, the question appears: «Why did he lie to his mother and the investigator?»

On 18 April 2003, in the course of service investigation, private P. changed his evidence and told that the trauma was caused by two blows delivered by private T. on 5 April 2003. On the same day I started the criminal case after the fact of the violation by private T. of the rules of the relations between servicemen stipulated by army regulations (part 3 Article 406 of the Criminal Code of Ukraine). I reckon that this was a single instance, not typical for the unit. Besides, I do not deny the guilt of the officers of the unit. On 18 April 2003 I issued the order, according to which five officers were punished disciplinary, the documents on the dismissal of two officers of this unit were lodged, and the new commander of the unit was appointed. As you see, I took a rather strict measures».

During the talk with Sergey T., the accused, I tried to learn why he committed this crime, what motives he had. The arguments, which he adduced during the trial (such as badly washed crockery, dirty floor in the barrack, etc.), could not be a reason for the beating inflicted to the victim. Yet, I heard nothing that could justify his actions. He repeated almost verbatim the words of the victim, who said that the reason was the general situation in the army.

During the years of work in the Union of soldiers’ mothers we came across very different cases that occurred with boys in the army: we communicated with deserters; the youths, who served all the term being ill; the youths, who returned from the army as invalids. So, we drew the following conclusions:

1.  The ill youths recruited to the army cannot be the valuable soldiers. And, what is worse, they provoke other servicemen to the abnormal actions.

2.  «Dedovshchina» cannot exist in the units, where the servicemen fulfill their direct duties (but not the duties of unskilled workers or builders).

Both the victim and the accused, as well as the commander of the military unit are the hostages of the situation that has formed in our society. Young soldiers are practically ignorant of their rights and duties, do not know the Criminal Code and, alas, are almost illiterate (it is very difficult to believe that the letters, which we receive from soldiers, were written by the persons with high or even secondary education).

The commander of the unit has no money for the urgent reparations, so he makes the soldiers to fulfill these works instead of teaching them the military profession.

This story has a very dismal end: the 19-year-old youth almost became an invalid; the soldier, who had only good characteristics before the army, a sportsman, who dreamed to become a professional soldier, got into custody; several officers, who have families, became jobless.

«Prava ludyny» commentary. It is very easy to criticize the Ukrainian army, since every structure may be criticized under the conditions of the planned chaos that exists in our country. Our society is not reformed in any sphere except the political institutions, but everyone likes to waffle about reforms. Yet, nobody wants to do something.

However, although the qualitative reforms were not conducted in the army, it undergoes now the quantitative reform. The army is reduced. Every year the recruiting commissions decrease the number of the recruits. This fact should exert the positive influence on the quality of recruiting campaigns, since it seems to be not difficult to collect 2100 healthy and intelligent youths from, for example, the Kharkov oblast. Yet, this does not happen for some reasons (and not only in Kharkov). Is the army guilty of this situation? Of course, since military men manage the recruiting commissions. But are they independent? Here the problems become evident, which reflect the gloomy reality. If to abstract from the wish to criticize the army, then one would see that it is the society that is guilty in the problems of the army. The newspaper «Nasha armiya» of 16 May 2003 published interesting information about the recruiting campaign of 2002. The first place by the quality of the campaign is occupied by the Lviv oblast, where the recruits are examined not only by civil doctors, but also by military ones. The experience shows that they do not permit to recruit ill youths, at least they do their best for this. The army is not interested in the mobilization of ill boys, since lot of money is needed to liquidate the consequences. So, who is interested in this? Medicine? Civil power? When the discussion begins about the enlistment of ill recruits, everybody begins to criticize everybody. The army appears to be the guiltiest, although everywhere, except the Lviv oblast, the recruits are examined by civil doctors. The hospitals, in which the youths are examined, are also, as a rule, civil. So, the army completely depends on the professional level and conscience of the workers of the health protection system. Yet, this is only a part of the problem, since frequently the recruits are enlisted, who are drug addicts, have no secondary education, have the behavioral disorders, but are not registered either in psychiatric dispensaries or in militia. Only the educational establishments came across their behavioral disorders, and they had to present the corresponding characteristic to the recruiting commission. Unfortunately, the characteristics given by educational establishments are, as a rule, standard.

We also want to mention some prejudices that remained in our society since the Soviet times. One of these prejudices is that the army reforms people. This opinion prevails in all groups of population, even in most educated ones. We observed many cases, where the sufficiently educated parents (in one of the cases the mother was a lawyer, in another – a medical doctor) tried to conceal the behavioral disorders of their sons from the recruiting commission in order to send the boys to the army «for reformation». They came to the Kharkov oblast union of soldiers’ mothers to get the advise to which military branch it should be expedient to send their children. We did our best to dissuade them from these, to put it mildly, precipitate actions. Yet, how many mothers did not come to us for the advice?

Another prejudice, which is not less harmful both for the boys and for the army, is the idea that a youth, who did not serve in the army, is a defective person in the opinion of the society, that he, being ill, will not get a good job, that he will not be attractive for girls, etc. This prejudice is common, first of all, among the youths, and the recruits conceal from the recruiting commissions their heart diseases and spine problems, not to mention the enuresis, psychical disorders and other «shameful» maladies. And a commander of military unit gets a soldier with, for example, retrogressive amnesia or enuresis. It is obvious that army is not guilty in this case.

Here two «eternal» Russian questions arise: «Who is the guilty?» and «What to do?»

The answer to the first question is simple: our consciousness and lack of information are guilty first of all. Certainly, there are other guilty too: medical establishments, doctors, secondary and technical schools that did not inform properly the recruiting commissions. Yet, this is not all. In the countries, where the mass liability for military service exists, the strict informational system was created, and every link of this system has its own functions. For example, in Germany and Israel schools directly cooperate with recruiting commissions. Army signs a contract with a school for the preparation of some specialists needed by army. And the school is responsible (sometimes even in court) for rendering the untrue information about physical and psychical capabilities of the recruits.

And who is responsible in our country, when a youth ill with schizophrenia gets to the army and commits a crime there (such case occurred in 1995)? One cannot hope for anything good, if we would not improve the informational system on all stages of recruiting.

The representatives of the army and military justice, soldiers’ mothers and other interested persons must go to educational and medical establishments and to communicate with youths and their parents.

Recently one of Kharkov state officers declared that there was no dedovshchina in the Ukrainian army. At the same time, we have a number of the complaints against dedovshchina. The Ministry of Defense also confirms that dedovshchina is caused, first of all, by the bad quality of recruiting campaigns, because the boys are mobilized to the army, who bring there «the street laws».

We also want to add that the moral climate in a unit mainly depends on the unit commandment. In a unit, where the commander and officers fulfill their duties well, the number of the cases of dedovshchina is much less, although it is impossible to liquidate this phenomenon because of the above-listed reasons.

Everybody talks about the reform of the army: the President, MPs and army officers. They even established the year, when the Ukrainian army, in their opinion, will become professional. But how one can speak about a concrete date, if Ukraine still did not developed its Conception of safety? Who knows what strength of the army we need? The officials give different numbers: from 50 to 150 thousand. But it is impossible to conduct the reform having so many unknown quantities in the problem. Now we are trying to persuade the military and civil officials to start the dialog, in which the military will tell to the youths, their parents and teachers the truth about dedovshchina, load in the army, nourishment, etc. Maybe then the number of mothers and fathers, who, being unable to reform their children (who, most often, need the treatment), want to shift the responsibility to the shoulders of the officers, will decrease. And, maybe, the number of the doctors will decrease, who, answering the complaint of a recruit «I suffer from headache», indifferently say: «Everybody suffers». The quantity of ill soldiers in the army will diminish, as well as the quantity of the cases of dedovshchina, when medical establishments and schools will pay fines for their mistakes. And, maybe, if the recruits would be fined for the premeditated concealment of their deceases, the number of unhealthy servicemen would also become less?

It is extremely necessary to reform the army. We may not wait until in becomes professional. For this the rules of the conscription must be changed, since these rules were formed in the Soviet times and developed under the conditions of the Soviet army, the most numerous army (except the Chinese one) in the world. The money for army was not counted in the USSR. However, Ukraine must count the money. And our army is very expensive because of the great number of medical commissions that look for the youths, who want to dodge the army service, instead of looking for the healthy boys, who want to serve; because of the diseases of young soldiers, the dismissals in the first months of the service or periodical treatment in military hospitals (which is three times more expensive that in civil hospitals). The army reform is urgent, but before realizing the reform we must understand for what we need the army, what values it must protect and how many soldiers it needs, as well as how many servicemen our country is able to nourish and provide with clothes, give them flats and, later, pensions?

All these are questions not only to the power, but also to the entire society, since every unnecessary or sick soldier causes the waste of money of the taxpayers, and the society may not ignore this fact.

A very short term had passed after the adoption of the Law «On the introduction of changes to some legal acts of Ukraine (in the sphere of the protection of state secrets)», and the life demonstrated a vivid illustration to it.

On 21 October 1999 the newspaper «Fakty» published the information that the Sevastopol USS officers «ceased the work of the group of scientists of one of research institutes, who tried to pass some experimental scientific materials abroad. The press service of the USS communicated that the remuneration for the «services» of the Crimean scientists had to be paid by foreign scientific centers. The money for the rendered information were transferred to the account of one member of the group, who later paid to his colleagues in cash (USD)». Similar articles titled «Brought out into the open» («Slava Sevastopolia», 23 October), «Criminals are arrested» (Krymska gazeta», 27 October), etc. were printed in the Crimean newspapers… The newspapers enthusiastically wrote that «the delivery of secret information» to one of the Western countries had been arranged, and that «the head of the criminal group» had been arrested. Yet, it turned out that the group of Sevastopol biologists worked after the project, which was jointly financed by the state budget of Ukraine and the foundation INTAS of the European Union. The research was connected with plankton, and the scientists had no access to state secrets since the beginning of the independence…

Last week the informational agencies communicated that the officers of the USS directorate in the Kharkov oblast detained a jobless Kharkovite, who tired to pass some secret information to foreigners. For three days all Kharkov oblast TV channels effusively described the successful operation of the law-enforcers. Central newspaper also wrote about this event under very typical headlines: «Espionage is raging» or «A Ukrainian spy was detained in Kharkov» (maybe the authors think that Kharkov is not a Ukrainian city?). And it seems that nobody noticed the obvious contradictions in the informational messages.

Here is the example of a typical message.

Kharkov is interesting for industrial spies

Kharkov law-enforcers detained a local dweller during the attempt to pass the closed information to foreigners. The press center of the USS directorate of the Kharkov oblast communicated that in the course of the ODA the officers of the oblast USS got the information about the illegal actions of a Kharkovite, who tried to establish the contacts with the representatives of foreign states with the aim to pass them the documents with the restricted access concerning the scientific and technical research.

During a year he, in a fraudulent way, wormed into the confidence of Kharkov scientists and promised to acquaint them with foreign investors for the realization of the promising scientific and technical projects, which they could not realize in Ukraine. About a score of researchers fell for the bait of the intermediary, including those, who had the access to secret materials.

Taking into account the preconditions for the commitment of an especially grave crime against the state that are contained in the actions of the Ukrainian citizen, he got the official warning; the prophylactic work was conducted with the scientist, who got into contact with him. The message of the press center also reads that the actions, which inflicted damage to the interests of the state, are regarded as high treason in the form of espionage and are punished with incarceration for the term from 10 to 15 years.

«Yuridichny visnyk Ukrainy»,
No. 30, 26 July – 1 August 2003

We know nothing more about this story.  Yet, even the information spread by mass media is sufficient to draw some conclusions. It seems that this jobless man is a rather clever and educated person, since we was able to rouse the interest of a score of scientists in the opportunity of the realization of scientific and technical projects. So, why they had not to «fall for the bait»? Maybe their scientific work is sufficiently provided in Ukraine? Of course it is inadmissible to pass abroad the state secrets. Yet the authors of the message mention «the closed information» and «the documents with the restricted access concerning the scientific and technical research». Nobody said that the passed information was a state secret. If state secrets were passed, that it would be not «the preconditions for the commitment of a crime», but a real crime envisaged by Article 328 of the Criminal Code of Ukraine, and the guilty of this crime would be the scientist, who had the access to the information that was a state secret. Thus, the state secrets were not passed. So, there were no grounds to say about «high treason in the form of espionage». The subject of the crime envisaged by Article 11 of the CC of Ukraine «High treason» is a citizen of Ukraine, and the subject of the crime envisaged by Article 114 «Espionage» is a foreigner or apatride. So, the high treason in the form of espionage implies the preliminary collusion between a representative of foreign country and a Ukrainian citizen about the collection or delivery of the information, which is related to state secrets. Yet, this did not happen. And what happened in fact? What were the grounds of the statement that such «actions, which inflicted damage to the interests of the state, are regarded as high treason in the form of espionage»? Article 111 of the CC of Ukraine regards as a crime the commitment by a Ukrainian citizen of a premeditated actions injurious to sovereignty, territorial integrity and inviolability, defensive capacity, state, economic or informational security of Ukraine. But what was injured by the actions of the «enterprising jobless»? Maybe the «informational security»? Yet, this term is not defined by any Ukrainian law.

As to the official warning that was issued to the offender, what were the contents of this warning, taking into account the fact that the list of the information, which is secret, but is not related to state secrets, does not exist at all? Perhaps, only about the necessity to submit to the approval of the USS all contacts concerning the scientific and technical projects. Maybe, this was the essence of the «prophylactic work» conducted with the scientist.

The absence of legal definition of the contents of the information with the restricted access, except the information related to state secrets, entails the vagueness of the situations connected with any information, which may turn out to be closed. Therefore, the actions of the USS officers may be qualified as arbitrary and illegal, since they violated the constitutional right for information stipulated by Article 34 of the Constitution of Ukraine.