“Prava Ludiny” (human rights) monthly bulletin, 2005, #01

On 25 January 2005 the concluding seminar on monitoring of the election of the President of Ukraine-2004 in penitentiary establishments was held in Kyiv. It was conducted by the Ukrainian section of the International society of human rights. Heads of regional groups from all regions of Ukraine, representatives of the Ministry of Interior, Ministry of Defense, Department of Penitentiaries, OSCE, Foundation “Vidrodjennia” and representatives of Embassies of Germany and the Great Britain took part in this seminar.

It was summed up at the seminar how the agitation had been carried in penitentiaries, and how the voting had been organized there. Almost all participants of the monitoring pointed out that the voting in penitentiaries had been organized efficiently, on the high level. For instance, Genadiy Glushchenko, the head of penitentiary establishment in the settlement of Gamaliyivka, treated our organization and the monitoring very seriously and respectfully. He helped to organize the meetings of our workers with the head and members of the commission, permitted us to be present during equipping of the room for voting, which was very important for accuracy of the voting, and to observe the entire process of voting. Everything was organized and functioned as well-debugged mechanism. We are very grateful to major Glushchenko and all workers of this establishment for such efficient work.

It was pointed out at the seminar that in the establishments, where people were held in custody, there had been no agitation, and the information was one-sided (like in most Ukrainian regions), the voters had been familiarized only with one candidate and had voted for him. This is also confirmed with questioning of the voters, which were released after the Presidential election. However, in December the voters in penitentiaries started to obtain the many-sided information, and on 26 December the results in almost all penitentiaries changed: the candidate, which had had almost 100% of votes, lost his positions and got much less votes than before.

Besides, the participants of the seminar discussed the changes that should be introduced into the election laws for improvement of voting process at special election stations, where voters were retained in custody. In particular, it was suggested to permit the members of special election commissions and representatives of candidates to vote at these stations with the off-list tickets, to permit them to visit such establishments and meet with the incarcerated voters, and so on.

The participants also discussed very urgent question whether it was advisable to give the right to vote to incarcerated people. There were many different opinions, and everyone actively defended his own stand. I believe that the people, who are held in custody, are competent members of our society, since, according to Ukrainian laws, this category of people is not deprived of electoral rights. So, the people, who stay in custody, independently of term, regime and gravity of the offences committed by them, may be restricted in the electoral rights only at election to the local power organs, since an incarcerated person can have no relation to the local power in this very area. The majority of participants of the seminar adhered more or less similar ideas, and it was decided to send such proposition to the organs of legislative initiative.

Taking into consideration the experience, acquired during the conduction of the monitoring, and taking account of the necessity and usefulness of such monitoring, we decided to organize the monitoring of parliamentary election-2006. In the course of future monitoring we intend to cover all special election stations, where people are retained in custody.

Head of the regional group
Mykhaylo Skorik

On 6 December, about 7 p.m., a deplorable incident took place in the town of Druzhkivka of the Donetsk region. Yulia, an activist of “PORA!”, was walking with an orange scarf on her neck. Two drunken guys began to bother her, they insulted the girl because her scarf was orange: according to their words, nobody could wear this color in the region. Yulia said that she had the right to wear clothes of any color she liked, that she supported Yushchenko, and nobody could order her, what she had to wear and for whom she had to vote.
As a result, one of the youths took out a knife and tried to cut off the scarf from Yulia’s neck. In the last moment the girl managed to dodge, and the guy scratched his boon companion standing beside. The girl ran away.
Yet, this was not the end of the story. In the same evening militiamen came to Yulia’s flat. The girl was transported to the militia station, where she spent the night.
In the morning the girl was released after giving a written undertaking not to leave a place. She was accused of attack with a knife on two boys, a criminal case was started against her.
The main reason of such brutal lawlessness, in the opinion of one of local activists of “PORA!” is the fact that Druzhkivka is located in the 60th election majority circuit represented by Mr. Zubanov, who has recently refused from his post of people’s deputy. It is rumored that this circuit is freed for Yanukovich. So, extremely brutal methods are used there.
9 January 2005
Druzhkivka

Taking into account the extreme attention of the society to investigation of the crimes connected with violations of the laws on election, the General Prosecutor’s office informs that 139 cases of this type are investigated by the corresponding prosecutor’s organs.

18 such cases have been already directed to courts for consideration per se. The General Prosecutor’s office promises to inform about the course of their further investigation, communicates Liga referring to the press service of the General Prosecutor’s office.

During the repeated voting of 26 December I worked in a district election commission in one of the poorest district of Lugansk – the Kamennobrodskiy district.

The strongest impression was made on me by the so-called “quarterpersons”. They are special women, which work as registrars and passport clerks in the districts with owner-occupied dwellings. They have close, but, as a rule, not official, relations with local power.

The quarterpersons, getting their fees, by words of the district dwellers, from personal funds of the head of the district executive committee, purposely heated the atmosphere before the voting, first of all, among aged people. Several days before the voting they actively spread the rumors about the “oranges”, who were allegedly going from house to house and threatening that they would physically avenge on everybody, who would vote for Yanukovich. The quarterpersons even openly spoke about that in the commission, cynically lamenting that “the people is infuriated”. On the day of voting they openly agitated for Yanukovich at the entrance to the school, where the election station was situated.

On Sunday the quarterpersons, who, during several weeks, had accustomed people to be afraid of and hate the supporters of Viktor Yushchenko, drove, almost by force, the infirm old people to the election stations in order to cry before the TV cameras: “Look, what have you done with the people!” Some old women were so weak that we were afraid that they would die on the spot. Well, maybe Yanukovich’s headquarters wanted just this result. Otherwise I cannot understand for what they emphatically dragged to the election stations old people of 80-90 years old, the people, for whom it did not matter who would become the president, who were not able either to pronounce or to memorize candidates’ surnames.

Undoubtedly, the state of old people was equally hard throughout the country. Yet, such cynical speculation with this situation was possible only in the Donets Basin. One can hardly say about systematic violations during the repeated election on 26 December, but the methods and ethical principles of V. Yanukovich’s pre-election agitation in Lugansk have been outrageous. I believe that at least the authors of the pre-election strategy of Yanukovich, aimed at fanning of interethnic discord, should be brought to legal responsibility for all crimes committed at their suggestion.

The procedural changes introduced into the Law “On election of the President of Ukraine” demonstrated their positive and negative features during the repeated voting on 26 December. I am sure that everybody is waiting for the news from the Donets Basin.

1. As a result of the decision of the Constitutional Court, the number of the applications about voting at home was, at some election stations, from 70-80 to 150-200 only during the past evening. As a rule, these stations were headed by representatives of Yanukovich. At other stations the number of such applications was 10-50. One of the negative moments was that many voters, invalids and old people, had to go to the stations. The situations were different, but all of them were very grievous. Although the Party of Regions was the initiator of such strict rules, it got its dividends even there. Representatives of the Party seemed to be benefactors, since they organized transportation of invalids to voting stations. Almost all such people, who wanted to vote, were transported to the stations, although it was difficult for many of them. There were cases, where the old people, who were registered for voting at home, came to the stations all the same in order to be sure that they would have opportunity to vote.

Our MPs did not take into consideration that there were very few invalids of the first group. This group is not always given even to those, who cannot move without assistance. This is done because the pension of invalids of the 1^st group is greater. Yanukovich knew about that, so he actively struggled for cancellation of these restrictions. Naturally, the majority of invalids were displeased. Yet, one should understand that the reason of this inconvenience lies in the abuses committed by representatives of the Party of Regions at the previous voting.

2. Some voters were absent in the lists. There were problems connected with courts during the first half of the day. Not all commissions knew that they had to give to the people, turning to courts, the reference on the reasons of the refusal to allow these people to the voting and the letter from the commission, which had to read that the commission did not protest against consideration in absence of a representative of the commission. However, during the second half of the day, these questions were solved, and the commissions even rendered transport. In the morning one had to wait for court decision for 2-3 hours, but later that took only 20-30 minutes.

3. There were many cases, where representatives of V. Yushchenko were not included to the election commissions as heads or secretaries. Yet, this did not influence the work of the commissions.

4. The attendance of voters to the election stations in Gorlovka was 79-86%. However, the greatest proportion was in the election districts, where a significant part of people voted at home. At these stations many applications about voting at home were written by the same hand.

5. On 25 December leaflets, allegedly issued by V. Yushchenko’s supporters, appeared in Donetsk. These leaflets, on behalf of Yanukovich, invited people to the election proposing them to strike Yushchenko’s name from the list and to enter a check near Yanukovich’s name. As a result, such bulletins would be spoilt. We reckon that this was specially prepared discrediting material for further court consideration. They say that Yanukovich did not get the proper number of votes because of this provocation. However, the practice showed that the number spoiled bulletins was very small.

Numerous statements of Ukrainian human rights protectors and competent international human rights protection organizations evidence about resumption in Ukraine, during the Presidential election, of the practice of persecution of dissenters and use of law-enforcing organs as a tool for political struggle. Yet, law-enforcing organs continue to disclaim the facts of mass detentions and arrests of the activists, who peacefully distributed informational materials during the election campaign, publicly expressed their political views and realized their constitutional right for freedom of peaceful assemblies.

The Ukrainian Helsinki Union of human rights (UHUHR) is extremely anxious about such situation in Ukraine. On the eve of the run-off election of the President of Ukraine this organization turned to Head of the Supreme Council Volodymir Litvin. Representatives of the UHUHR expounded the numerous facts of violation of constitutional rights of citizens and asked to use the legal powers of the Head of the Supreme Council and the authority of the supreme legislative organ for cessation of mass violations of constitutional rights of citizens for free expression of political views, for liberty and personal security, for free movement, etc.

In response to the UHUHR appeal Volodymir Litvin turned to prosecutor’s offices of the regions, where the violations had been observed, with the demand to give explanations concerning the considered problem.

It is not surprising that all answers deny, in every possible way, the accusations of violations of citizens’ rights by law-enforcers.

Prosecutors of only three regions (Sumy, Vinnitsa and Chernihiv) acknowledged the fact of detention of the persons, whose rights were violated.

So, in Sumy, according to the UHUHR materials, a district court condemned to 10 days of administrative arrest 6 persons, who demanded to publish the official protocol on the results of voting at an election station, as it was envisaged by the Law “On election of the President of Ukraine”. They were condemned at a closed court sitting, without advocates and relatives. The international human rights protecting organization Amnesty International acknowledged that these six persons were the first prisoners of consciousness during the years of independence of Ukraine.

Prosecutor’s office of the Sumy region stated that at the moment of the UHUHR’s request this case was considered by the appeal court of the Sumy region, and so, “the prosecutor’s office could not check the legality of the decision issued by the judge on this case and the possibility of the protests against the resolution on bringing these persons to administrative responsibility” until the head of the appeal court would issue the decision.

And in Chernihiv a criminal case was instituted against an activist of “PORA!”: he was accused on distribution of counterfeit money. The regional prosecutor’s office did not draw any conclusions, but assured that it controlled the investigation of this case. Yet, we know that this criminal case was closed because of absence of corpus delicti as early as in December. But whether the law-enforcers, who misused their power, would be punished?

In spite of the fact that it is prohibited to keep the persons with documents in special detention centers, such fact was registered by human rights protectors in Vinnitsa: the incident again was connected with “PORA!” members. They came to Vinnitsa with the goal to carry out agitation work – the activists appealed to citizens to check their names in the lists of voters before the run-off election.

In the course of the check, conducted by the demand of Volodymir Litvin on the basis of the UHUHR appeal, the prosecutor’s office of the Vinnitsa region established that the criminal case against six “disobedient” activists was started in connection with the crime stipulated by part 1 of Article 399 of the Criminal Code (falsification of service documents). A deputy of the regional prosecutor, a senior counselor of justice, informed that the pre-trial investigation was carried out by an investigation officer of Vinnitsa town prosecutor’s office and assured that the course of the investigation was under control.

In other cases, during the checks conducted, in particular, by prosecutor’s offices of the Kherson, Mykolayiv and Poltava regions, no facts of detention of activists of youth organizations were disclosed. Such reaction of law-enforcing organs for the umpteenth time gives grounds to say that in most cases the corresponding organs even did not compile protocols about the detentions.

According to words of Evhen Zakharov, the Head of the board of the Ukrainian Helsinki Union of human rights, such facts clearly evidence that the activities of law-enforcing organs have been aimed at persecution of activists of public organizations, was not based on laws and contradicted the provisions of the International treaty on civil and political rights, as well as the European Convention on the protection of human rights and fundamental freedoms.

Today the mass illegal actions against public activists have stopped. However, we may not forget those, who have suffered. And now, when the situation in our country is very unstable yet, it is very important for human rights protectors and other competent organizations to be very careful while controlling the activities of the organs of state power.

13 January 2005

“New President of Ukraine and government should realize the immediate reforms aimed at strengthening and guaranteeing of human rights and fundamental freedoms”, reads the open letter of human rights protectors to the new power, which letter was made public on 22 January 2005. In particular, the authors of the letter draw the attention to the immediate reform of informational and criminal-procedural legislation, revision of constitutional reform and introduction of efficient mechanisms for public control over the power.

The association of human rights protecting organizations “Ukrainian Helsinki Union of human rights” congratulated, in its letter, President of Ukraine Viktor Yushchenko with accession to the post. At that the human rights protectors reminded to the new Ukrainian power about the sad heritage of systematic and mass violations of human rights and fundamental freedoms, which had been committed in Ukraine from the very moment of declaration of independence, and appealed to initiate the immediate reforms, which would guarantee the realization of human rights and fundamental freedoms.

The human rights protectors suggested a number of concrete steps aimed at improvement of the situation in this sphere. In particular:

1.  To start immediately the investigation of the facts of violation of human rights, which were committed in the past. This especially concerns such crimes as persecution of journalists, disappearances and political murders, persecution of people because of their political views and public activities. It is necessary to publish the results of these investigations and to restore justice regarding the victims of these illegal actions.

2.  To declassify immediately the legal acts by the President of Ukraine, Cabinet of Ministers of Ukraine, General Prosecutor’s office and other power organs, which are concealed under the illegal classifications “for service use only”, “not for printing” and “not for publishing”, since these documents contain the information about their corruption activities. To promote the changes in informational legislation in order to make impossible future illegal classification of legal acts.

3.  To reconsider the adopted changes to the Constitution, since they, in our opinion, are contradictory, impede the efficient functioning of the power and diminish the guarantees of human rights and fundamental freedoms, to initiate introduction of changes into the Constitution of Ukraine with the aim to make possible the ratification by Ukraine of the Roman Statute of the International Criminal Court.

4.  To initiate changes to the Law of Ukraine “On Constitutional Court of Ukraine” for the purpose of giving to citizens the right to hand individual complaints against unconstitutional character of the legal acts issued by power organs.

5.  To elaborate the new draft of Criminal-Procedural and Criminal-Executive Codes of Ukraine on the basis of constitutional guarantees and international standards of human rights protection, as well as on the basis of positive international practice.

6.  To present the legislative initiatives on the creation of public TV and radio broadcasting in Ukraine.

7.  To guarantee the protection of rights of language, national and religious minorities, the observance of rights of refugees and finders of refuge in accordance with international obligations of Ukraine.

8.  To initiate the efficient public control over the activities of law-enforcing organs of Ukraine and public monitoring of penitentiary establishments.

“At the fulfillment of the above-listed tasks the new power should turn special attention to the observance of the principle of political pluralism and guaranteeing of the right of political opponents to free peaceful expression of their views”, point out the human rights protectors.

The events of November and December have forced Ukrainian society to confront tasks which can no longer be brushed off as needing attention some time in the vague and distant future. Any velvet revolution is followed by a velvet restoration which swiftly turns vicious if it meets with no resistance. We presently have just such a moment where civic society can and must extend the frontiers of freedom and firmly defend the territory wrested from the State. 

In practical terms, this means the review and change of the most important laws on human rights and fundamental freedoms, and, accordingly, a transformation in legal relations.  However, new laws alone will not work if the repugnant semi-feudal social system, where only proximity to those wielding power guarantees privileges and benefits remains intact. If fiscal pressure continues to make it impossible to work without stealing, then everyone will remain vulnerable before the full power of the State edifice and will be forced to continue paying dues (“you have to share!”)

In the final analysis, people and their relations are more important than the laws which consolidate these relations. If it was precisely moral decay that became one of the main reasons for the social crisis which triggered off the Orange Revolution, then it is first and foremost vital to achieve a change in the moral climate in society.  Let us just remember that we have several months only, a year at most, to get these processes started and to make them irreversible.

  Ukrainian society needs first of all a process of purification, a rooting out of the immoral system of social relations which were reasserted under Kuchma, but which became entrenched back in the communist regime. What is meant here is a process similar to the “denazification” of Germany after the Second World War or the “decommunization” of the Baltic States and of the Wyszegrad Four (Poland, the Czech Republic, Slovakia and Hungary) at the beginning of the 1990s.

In Ukraine, this process of tracking down and eliminating the remains of the communist era should probably be called “dekuchmization”[1], since Leonid Kuchma, whose name was not for nothing used to describe an entire era, symbolizes the present regime and is personally answerable for the moral decay of society.  At the same time, we must recognize the fact that we all bear responsibility for Ukraine’s present state, all without exception.

 

2

So what should “dekuchmization” entail?  The following steps are crucial.

1  Firstly, society must be given the opportunity to find out the truth about the crimes, the pillaging and the self-aggrandizement of the regime which is ending. We must declassify and make public the countless decrees of the President, the Resolutions of the Government and other normative acts which, under the illegal stamp “For official use only” (OU), “not to be printed”, “not to be published” conceal information about the corruption of high-ranking officials and those executive bodies which serve them, these being the State Administration of Affairs, the Constitutional Court, the High Council of Justice etc. The Kharkiv Human Rights Protection Group (hereafter KHRG) has been monitoring such acts through the computerized system “League:Law” and can confirm that sometimes in the space of a month as many as 10% of Presidential decrees have been classified as secret.

  Each time when their contents have become publicly known, it has transpired that what was involved was cases where the President was bestowing gifts upon himself or his loyal retinue (the Resolutions regarding the notorious State Administration of Affairs (SAA) whose budget exceeds that of many ministries, for example financing for the Ministry of Transport, or the directives on supplementary payments to members of the High Council of Justice etc) or on concealing elicit deals (for example, the agreement between the companies «Gasprom» and «Naftohaz Ukrainy» on creating a gas consortium).  The «National program for the development of energy policy up to 2010», adopted back in 1996 with no public discussion whatsoever, remains hidden under the stamp “OU” to this day.

 Review is urgently needed of «The list of items of information that constitute State secrets», which is unjustifiably broad, sometimes to the point of absurdity (with the number of employees of the Customs Service and the results of prosecutor’s office checks into complaints of human rights violations being classified State secrets), as well as of the actual procedure for making classifying information.

2  Court cases connected with political persecution of the opposition, as well as of the business interests supporting it, must be reconsidered.  Examples here would be the case of Bank Slovyansky[2], that of the Ingulets terrorist act of 1999[3] (Kuchma recently pardoned Serhiy Ivanchenko on the petition of his wife, however the other figures in this case remain in prison, and the compensation to victims, if paid at all, has been pitiful), the case over 9 March 2001[4], as well as that involving the Donetsk lawyer Serhiy Salov[5] (whose application, incidentally, to the European Court of Human Rights is soon to be ruled upon), and others.

One should remember that all these cases are talked about in Melnichenko’s tapes[6], a parliamentary investigation into which should have been held a long time ago, as they hang like a heavy burden impeding movement forward. If such an investigation proves that officials are implicated in crimes, they must be prosecuted. It is vital to finally carry out a proper investigation into the murder of Georgy Gongadze.

3  A public expert examination should be undertaken of the most important events in various fields – politics, economics, the environment, in the social sphere, etc, in order to establish where the regime deceived us, and then to subject these events to public assessment, in particular, legal evaluation. To this end we must review independent Ukraine’s short history, make a list of such events over the last 15 years and create efficient expert groups (a good example of such public expertise would be the analysis of the causes of the Chernobyl disaster, carried out by environmentalists at the beginning of the 1990s).  I believe that the people needed and means for such expert examinations can be found.

  Where the rights of individuals have been violated, they must be restored, or at least compensation for the damage, whether in moral suffering or material losses, should be provided.  I would note in this respect that it would be expedient to carry out (in cooperation with the Accounting Chamber) a thorough examination of the implementation of the State budget for 2004 and of local budgets. One can safely predict a sizeable number of financial irregularities connected with the elections.

One should, in addition, investigate foreign policy, primarily relations with Russia, to check out the widely held suspicion that national wealth and the country’s sovereignty were being used as payment for support given to Kuchma’s regime.

4  The mechanisms for vote rigging used in the Presidential elections must be made public, like an ulcer which will spread infection if not burst.  It is extremely important in my opinion to give those people involved in the election fraud the opportunity to acknowledge their complicity and to release the burden of guilt from their soul, whether they acted under duress or for personal gain.  Here I would do what they do during a firearms amnesty: a deadline is fixed until which firearms can be handed in with no questions asked. Only after this deadline has passed are penalties imposed if firearms have not been given in.  In our case, a special law will need to be adopted envisaging an amnesty for all who during the stipulated time frame declare their role in the vote rigging and explain what it entailed.  Only then will investigations be initiated and the necessary court proceedings held.  I hope that this will be an honourable conclusion to the election process. Obviously this cannot apply to the most substantial and flagrant violations, such as the interception of information about the results of the voting and the manipulation of information, the collusion between members of the Central Election Commission and Presidential Administration. These crimes must definitely be brought before the courts.

5  The next task which remains as acutely needed as 15 years ago is “deKGBization”. Clearly the Security Service of Ukraine (SSU) is not the same as the KGB. Nonetheless, it has proved unable to avoid being used by the regime for political persecution. This was particularly evident between 1998 and 2001 when the SSU was headed by Leonid Derkach. There is ample evidence that the SSU inherited a lot from the KGB, resorting to illegal activities, intimidation and blackmail, while at the same time fostering an image of itself as the state body least tainted by any corruption.  The reorganization of the SSU at the beginning of the 90s was carried out in a non-transparent manner; if the commission whose members included Genrykh Altunyan, Mikhailo Goryn and Yury Kostenko[7] prepared a report, then this was not made public. It is precisely for this reason that it is now vital to openly and with public participation, investigate information suggesting SSU interference in the activities of political parties and civic organizations, as well as in business, and having established the truth, to carry out a staff shake-up of the service.  Wide-scale public discussion as to the priorities of national security would also be appropriate since, in my opinion, the SSU all too often interprets these to the detriment of Ukraine’s interests. An example would be in its declaring that one of its priorities is information security, although any limitations to exchange of information leads to the stagnation of a country. On the basis of how the SSU is behaving in the area of information, it seems safe to assume that they are either pursuing their own interests or that they simply have no understanding of how the world has changed since the Internet came on the scene. 

Here also there is a need for a special law which would enable a public commission to gain access to secret information and investigate evidence of illegal activities carried out by the SSU. Such a commission would also oversee the readjustments in staff according to the Polish or Czech model: all employees would be dismissed then re-assessed for suitability, with some being reinstated.  Secret employees would be subject to the lustration process: information about their involvement in the KGB would be made public if these people wanted to continue to hold high-ranking official posts. Here again it would be possible to benefit from the successful Polish experience: in accordance with the law on lustration, anybody wishing to be elected or appointed to certain posts (ministers, judges, etc) has to state whether they were ever secret agents of the security service.  The case is considered by a special lustration court, and if it is found that the application lied, he or she is deprived of political rights for 10 years.

6  No less important is it to carry out a shake-up of other law enforcement bodies: the offices of the Prosecutor, the police, tax police, etc.  Information about the illegal actions of these bodies needs to be disclosed and investigated, with the appropriate conclusions drawn, especially conclusions as regards retention of jobs. It is absolutely essential to make interference in business impossible and to put an end to the shameful practice of offering “protection”.  The tax police should simply be disbanded.

The problem of mass surveillance needs to be addressed, in particular, that of forms of communication which are a flagrant violation of people’s right to privacy. It is known that in 2002, Appeal courts issued 40 thousand warrants for the interception of communications by investigative operation units of law enforcement bodies (for comparison, in the USA, despite their battle with terrorism, 1,367 warrants were issued for the year).  It must be publicly ascertained how these warrants were spread out between the crime police, the SSU, the tax police and other law enforcement agencies, whether they were applied efficiently, how many criminal investigations were initiated and how many reached the court, what the verdicts were, etc.  Staff changes would be made on the same basis as in the SSU.

7  Fundamental changes are needed in education, both at school level and higher.  As the initiative “Academic Honesty” showed, the situation as far as academic freedom is concerned, is dire. It is shameful when only three rectors in the entire country were prepared to speak out against blatant vote rigging. Law institutes are in a terrible state and continue to prepare “obedient” specialists just as under the absolute rule of the Soviet legal paradigm. One can assume that here too a staff “clean-up” is unavoidable, at least as regards the most morally repugnant rectors of the ilk of Sumy’s Oleksandr Tsarenko[8]. 

8  Business must be kept separate from political activity. This thesis has become axiomatic and therefore need only be noted here.

9  Institutional mechanisms need to be created for public, parliamentary and extra-parliamentary control.  At present such mechanisms are either in embryonic form or entirely non-existent. 

10  One must find a way of raising the authority of the legal system, and of making the judicial branch of power independent and, as it were, “denationalized”.  If the court is a body of State power, it cannot make rulings on claims brought against the State, because it has no right to act as a party during the consideration of a case.  Therefore the court must act in the name of the law, and not on behalf of Ukraine.  This, in fact, is one of its most important functions. At the present time, the independence of the courts is to a large extent fictitious. Court reform has not been completed and, as far as I can see, there remain a considerable number of current norms which need changing.

  The salaries of judges, in the first instance, those in local courts, need to be raised substantially. Last year the following figures were talked about:  the Budget allocation for a judge of the Constitutional Court was 600,000 UH a year, for a judge of the Supreme Court – 120,000 UH, while a judge in a local court received 12,000 UH per year.  It is time to rectify this disproportionate imbalance of a purely corrupt nature.  One of the judges of the Supreme Court recently stated that their salaries are 10 times lower than those of judges of the Constitutional Court, while the latter have also been awarded generals’ (!) rank.  One need therefore feel no surprise when they try to prove that one plus one is equal to one. Such a Constitutional Court needs to be disbanded, and a new one created on the basis of a special law.  A review is also needed of the composition of the High Court of Justice.  However, the most important – and hardest – task remains that of ensuring public control over the judiciary.

11  It is time also to review the structure, proportions, functions and numbers in the State apparatus. Clearly the functions of the Presidential Administration need to change, while the State Administration of Affairs should quite simply be liquidated.  The rationale behind such bodies as the State Committee on Television and Radio Broadcasting seems highly doubtful, with at very least serious reservations as to its functions. However this area requires separate and more detailed discussion.

12  It would be desirable to review decrees conferring the title of “Hero of Ukraine” and other State awards.  It is an outrage that, for example, Medvedchuk[9] can flaunt his “Hero” status, but such people as Yevhen Hrytsyak or Danylo Shumuk[10], true heroes of Ukraine, were never honoured in this way.  This review should be undertaken by a public commission comprised of people with unquestioned  moral authority.

The implementation of all these measures will inevitably bring to light many cases of corruption, misuse of power and other crimes. In view of this, it is worth returning to the issue, already mentioned, of lustration.  Here, however, I would mention what I perceive as the negative experience of the Czech Republic and Hungary. Lustration as limitation of the rights of all officials, beginning, for example, with the heads of regional State administrations and higher is inadmissible. Guilt is not collective, only individual. We will accuse, investigate, sentence, punish and forgive. Or will not forgive depending on the crime. This directly applies to Leonid Kuchma as well.  Certainly a respectful attitude to its former presidents is one of the hallmarks of a civilized country.  However, if convincing proof is provided of crimes which Kuchma committed, than he must be prosecuted.

  A review of misuse in the economic sphere should be undertaken with the greatest care: firstly, these abuses were inevitable, and secondly, precipitous actions could have serious consequences for the development of the economy. It would be better to seek out flexible solutions which would make it possible to bring the economy into the open, separate business from politics and, finally, introduce clear rules and guidelines.

3

A wide-reaching program of “deKuchmization” places on the agenda considerable changes in legislation.  While in no way aspiring to provide a comprehensive list, I would suggest just a few directions which should be followed.

It should first be noted that the constitutional reform adopted as part of the “package” on 8 December is bad beyond redemption. On the one hand it is very short on substance and does not address many important issues, while on the other it creates the threat of unavoidable conflict between the President and Prime Minister (which could have been averted by making the President head of the executive and placing the Government (the Cabinet of Ministers) under him or her.  It reinstates the intrinsically Soviet practice of overall surveillance by the Prosecutor’s office, introduces an imperative style of mandate, turning State Deputies into “hand-raising” pawns obeying the will of faction leaders, etc. It is true that since Draft № 4180 was amended during the voting procedure, it must be reconsidered by the Constitutional Court and then gain a constitutional majority once again.  I am certain that this can give the public the opportunity to wage a campaign against a constitutional reform which is being foisted upon it in such an unacceptable form.

  Ukrainian society needs reform that is real, not just for show. The constitution of 1996 was a compromise with the forces of the left, which is why it introduced such a diffident form of capitalism and contained a barrage of social guarantees of the purely Soviet type, empty promises that no regime would be able to honour.  This Constitution is already far removed from today’s reality and needs to be rewritten.

In addition, the constitutional system does not work, as there is no institution established for constitutional complaints: individuals do not have the right to appeal against violations of their constitutional rights to the Constitutional Court, which is essentially why the latter is simply not a court at all. There is also a need for a corresponding code of procedure. For these reasons, the Constitutional Court should either be disbanded with its authority being passed over to the Supreme Court (this process would requires amendments to the Constitution, which is fairly difficult), or a new law on the Constitutional Court should be passed changing the principles of its formation, broadening the range of people who have the right to lodge complaints, and introducing procedure for reviewing cases.  This would entail something like a Constitutional Procedure Code.

I have highlighted already the fact that a strong and independent judiciary is a prerequisite for the recovery of the country. In view of this, we must review the laws which regulate the activity of the courts, while at the same time introducing norms which guarantee the influence of non-governmental organizations on the election (appointment) of judges.

This also applies to the law on the prosecutor’s office and other law enforcement agencies: in order to create safeguards against the arbitrary actions of these bodies, mechanisms for public control need to be stipulated.  The current law on public control over the law enforcement bodies and armed forces cannot withstand any criticism and needs to be thoroughly changed.

It would be advisable to refine the Draft law once begun on public control over the activities of the executive branch of power (including the prosecutor’s office and the security service), which would develop the idea of parliamentary and extra-parliamentary control.  It would also be sensible to significantly rework the long out-of-date law on investigative operations (which provides very weak safeguards for human rights), paying specific attention to the procedure for control over communications exercised by law enforcement bodies.

It is important to win the battle over the Criminal Procedure Code which in 2004 was sent back for reworking before a second reading five times in a row.  The Penal Code which has been in force for a year also requires radical change.

Control over the activities of the State authorities can only be exercised by an informed society. We must, therefore, ensure clear and understandable procedures for access to information, in particular to the archives of the security services.  If one considers the extraordinarily inflated quantities of legislation on information, this can be seen in general to hamper progress in this sphere and to limit the freedom of expression and of the press, rather than promoting its development.  For this reason, the temptation arises to simply abolish the numerous laws regulating the information network (the particularly harmful ones, specifically the law on procedure for covering the activity of State executive bodies and bodies of local self-government and the law on social guarantees for journalists), and to start afresh.

It is time to review electoral legislation in order to strengthen safeguards of rights and civil liberties, in particular the rights of civic organizations. This must be done in advance, long before elections, after all elections can be made honest and transparent only through the non-interference of the executive and through public control. There must also be a clear and enforceable procedure for recalling State Deputies.

A new law should be adopted on civic associations. The law from 1992 is already hopelessly out of date, and the longer it remains in force, the more it contradicts the actual state of affairs. It would be worth also drawing up a law on the procedure for holding political rallies, demonstrations and other public actions, since both local authorities and the courts continue to be guided by the old Decree of the Presidium of the Supreme Soviet of the USSR from 28 July 1988 which has an overt permission-based nature and contravenes the current Constitution.

 A review of social guarantees for all those groups in society whose own efforts are not capable of ensuring a decent standard of living is long overdue, and the divide between rich and poor in Ukraine has reached frightening proportions. Then fighting poverty must become one of the priorities of the new regime.

Finally, it is time to make amendments to the Law on the rehabilitation of victims of political repressions and to pay those people the long-standing debts, so rectifying this discriminatory situation in which many find themselves.

In order to begin these processes, I believe that a number of working groups responsible for different aspects need to be created. Members could include, on the one hand, so to speak “the people of Maidan”[11], and on the other – representatives of the new administration, State Deputies and, of course, experts. These groups would clearly need to agree their activity to some extent with the new State authorities, however, where needed could be guided by the direct public actions of Maidan which would in this way encourage the State powers to take decisions it found difficult. Politically these groups should probably always be one step (but no more than one!) more radical than the State authorities, as well as obviously being financially independent of them, that is, of the State Budget. However, the process of agreeing specific aspects of their activity and status possibly requires separate, more detailed discussion elsewhere.

  In conclusion we would stress again that what is involved is not merely the reform of the Kuchma regime, but a much belated, and therefore determinedly offensive policy of decommunization. This cannot be avoided and must not be put off any longer.  It is time, therefore, to begin. Not tomorrow, but here and now.

---

[1]  These words have been retained, since the Ukrainian equivalents are loaded with associations, beginning with the reminder of a Bolshevik slogan about the “electrification of the whole country”.

[2]  The Vice-President of Bank Slovyansky, Boris Feldman, was arrested on charges of tax evasion and financial mismanagement.  The Supreme Court annulled the tax evasion charges in 2004, and reduced his sentence to five years, that being the amount of time he had spent imprisoned.

[3]  In 1999, an explosion during a meeting between Natalya Vitrenko and voters caused serious injury to several bystanders. Serhiy Ivanchenko, the authorized representative of Oleksandr Moroz, Leader of the Socialist Party, together with his brother and Vladimir Samoilov were charged with the crime.  Major Melnichenko’s tapes suggest that the men were framed, probably as an attempt to discredit Moroz.

[4] This was the last day of confrontation between the mostly young activists of the organization “Ukraine without Kuchma”.  Around a thousand activists were detained and/or beaten up by law enforcement officers, many targeted at stations, bus stops when heard speaking Ukrainian.  The protest movement suffered a serious setback.

[5] Salov was also a representative of Oleksandr Moroz, who was arrested in 1999 for having shown a fake leaflet thrown in his postbox which said that Kuchma had died. He was charged with “impeding the free expression of the will of the people”, and having been held in a pre-trial detention centre, received a five-year suspended sentence.

[6] Major Melnichenko, now living in exile in the USA, secretly made tapes where Kuchma was speaking to his people.  The most notorious conversation is that referring to Georgy Gongadze, and clearly implicating Kuchma in effectively ordering his murder.

[7] Genrykh Altunyan, Mikhailo Goryn and Yury Kostenko were State Deputies and members of the Security Council in 1992 who worked on creating a new Security Service of Ukraine to replace the KGB.

[8]  The protests in Sumy began over the planned merger of three institutes.  Tsarenko, the rector of one of them, expected to become the head of the single institute and was particularly active in persecuting students. The determination of the students, their parents and many lecturers forced Kuchma to back down and withdraw his planned merger (in August 2004).

[9]  Victor Medvedchuk was Presidential Administration Chief of Staff under Kuchma. One could provide more information, little of it being salubrious.

[10] Yevhen Hrytsyak, the leader of the Norilsk Uprising of 1953, spent many years in the camps.  Danylo Shumuk, a Western Ukrainian, spent 36 years imprisoned for his beliefs, beginning under Polish rule in the 1930s, then under Stalin, Khruschev and Brezhnev.

[11]  “Maidan” being “square” in Ukrainian, but referring to all that has become known as the Orange Revolution.

The Kherson Regional Department of the Ministry of Interior brought a suit against Alla Tiutiunnik, the head of the Kherson regional fund of charity and health and a member of the board of the Ukrainian Helsinki Union of human rights, and against the social-political independent weekly “Vgoru”, published by human rights protectors, on the protection of business reputation, refutation of untrue information and compensation of moral damage.

The writ reads that on 6 January of the current year the weekly “Vgoru” published, on the first page, Alla Tiutiunnik’s article “Militia together with people?”. The militiamen affirm that there is some information in the article, which is not true and should be refuted. The article contains the information about the illegal actions of Kherson law-enforcers during the election campaign of 2004: persecution of agitators, attacks on them, issuing of the illegal orders, destruction of agitation materials in support of candidate to President’s post Viktor Yushchenko, “the case with KAMAZ”, etc.

Consideration of the claim has not been appointed yet, but it is interesting that the militiamen paid only 17 hryvnas as litigation fee, although they demanded to pay them the compensation of moral damage equal to 5 thousand hryvnas. This contradicts the Ukrainian law, which envisages much greater sum of litigation fee (when such sum is demanded, the fee should be 250 hryvnas). Well, frequently law-enforcers do not obey laws…

Olena Volochay, a member of the public organization “For professional aid”, explained that the claimants should recollect that item 11 of the Supreme Council Resolution, which is quoted by the claimant reads: “critical assessment of certain facts of drawbacks, ideas and opinions, critical reviews, may not be reasons for satisfaction of the demands on compensation of moral (non-property) damage. However, if an insult or violation of other individual’s rights protected by law (divulgation of confidential information without individual’s consent, meddling into private life, etc.) is committed, then it can entail compensation of moral damage”.

It is also noteworthy that Article 17 of the Law of Ukraine “On state support of mass media and social protection of journalists” envisages certain peculiarities of responsibility for inflicted moral (non-property) damage:

“In the course of consideration of disputes about compensation of moral (non-property) damage at the suits of the organs of state power, local self-government, official persons (for instance, a registered candidate to deputies) or state officials against mass media, the courts should take into account that, according to the matter of part 4 Article 17 of the mentioned Law, the presence of malicious intent of journalists should be considered, as well as consequences of use by the victim of the opportunity of extrajudicial (pre-trial) refutation of untrue information, assertion of his/her honor and dignity and settling of the conflict as a whole”.

In the opinion of Volodymir Yavorskiy, the chief executive of the Ukrainian Helsinki union of human rights, the claim against Alla Tiutiunnik is nothing but an attempt of pressure upon the journalist-human rights protector for disclosure of criminal actions of law-enforcers.

Thus, taking account of the existing legal norms, satisfaction of this suit is rather doubtful. Of course, the court should put an end to this case and issue the decision in accordance with the proofs presented by the sides and in accordance with Ukrainian laws. The court should do it; otherwise this claim would continue the practice of restriction of journalists’ right for realization of their legal professional activities and would initiate the practice of persecution of human rights protectors.

21 January 2005

As it is known, on 24 November 2004 the Lugansk regional council issued decision No. 15/1, item 2 of which prohibited the regional communal enterprise “Lugansk cable television” to transmit the telecast of the TRC “Era” and “5^th channel”.

As early as six months ago such decision would arouse a storm of indignation in independent mass media of the region. Today everybody has been silent. Everybody pretended that nothing serious happened, that the principles of the freedom of speech were not abused brutally and demonstratively.

However, there are other elements of civil society in Ukraine, for example, public human rights protecting organizations. A complaint was handed to a court against the decision of the regional council.

According to part 2 of Article 55 of the Constitution of Ukraine the right is guaranteed to everybody to appeal to court against decisions, activities or passivity of the organs of state power, organs of local self-government and state officials.

In compliance with this constitutional norm, a complaint against decision No. 15/1 of the Lugansk regional council was handed to the Leninskiy district court of Lugansk. The complaint contained the demand to acknowledge the second item of this decision as illegal and violating human rights, and to cancel it. Besides, it was offered to consider the complaint within 10 days, as it was envisaged by law, and to pass the court decision to the Supreme Council of Ukraine.

According to part 5 of Article 78 of the Law “On local self-government”, if court acknowledges a decision of local council as violating citizens’ rights, then the Supreme Council has the right to appoint the pre-term reelection of this council. The situation in the Leninskiy court is worthy of going down in history of justice. The complaint was considered within three days, the claimant was not even informed about that. As a result of juridical labor of Themis’ servants a surprising ruling on rejection of the complaint was born.

The ruling reads that the complaint was handed in the connection with creation of obstacles for obtaining of information by watching the “prohibited” TV channels. Yet, since, in the opinion of the court, the information is an article of trade, and the commodity relations are regulated by the civil code, the claimant should fight for his rights handing not a complaint but a writ. Besides, the suit should be brought not against the regional council, but against the enterprise “Lugansk cable television”, and the regional council would be only the third party. So, it turns out that the suit cannot be brought against the regional council, which adopted the illegal decision, but against the TV company, which only fulfilled this illegal decision.

Moreover, in the opinion of judge Ostrovskaya, who have issued the ruling, this agrees with the norm of Article 55 of the Constitution.

We respect the authority of justice, so we will not comment this court ruling. Yet, we must turn to the General Prosecutor’s office of Ukraine with the request to give legal assessment of this situation from the viewpoint of Article 375 of the Criminal Code, which envisages responsibility for issuing of deliberately unjust ruling.

However, it is possible that the complaint handed to the court have already had some effect: on 11 December the regional council cancelled its illegal decision of 24 November. The Lugansk cable TV company can now transmit the “orange” channels.

The reaction of the National council in charge of TV and radio broadcasting was the following:

“The National council turns to the General Prosecutor’s office with the request to react to the facts of taking decisions by some organs of local executive power and organs of local self-government on the non-sanctioned prohibition of transmission of features of some TV and radio organizations”, reads the resolution of the National council of 13 December.

The National council asks the General Prosecutor’s office to take the proper measures connected with exceeding the authorities, concerning the influence on informational space, by power organs.

The National council also ordered to its representatives in regions to collect, up to 17 December, the information about termination of transmission of features of some TV companies in cable networks during the election campaign. In particular, representatives of the National council must collect the information about termination of transmission in cable networks of “5^th channel”, TRC “Era”, “Radio-Era” and TRC “Ukraina” in the Donetsk, Kirovograd, Poltava, Mykolayiv, Dnepropetrovsk and Zakarpatska regions. The conclusions and propositions of regional representatives must be passed to the National council up to 17 December.

The National council warns the operators of cable television that if the court would acknowledge the switching off as illegal, the National council would punish the infringers. “Such actions will be considered as violation of the conditions of license with disciplinary consequences provided by Ukrainian laws”, points out the decision of the National council.

As it was communicated before, the meeting of deputies and heads of state administration of the Donetsk region decided to recommend to the operators of cable television to stop the transmission of the TV channels “Era” and “5^th channel” in the region. Yet, later the regional council cancelled this decision.

On 11 December the Lugansk regional council cancelled the decision on prohibition of transmission of TV channels “Era” and “5^th channel”.

To President of Ukraine
V. Yushchenko
Kyiv

Respected President Yushchenko!

We have got the information that on 28 January you signed two Edicts: No. 116/2005 and No. 117/2005 classified “not for publishing”. Use of this classification violates Article 34 of the Constitution of Ukraine. We hope that this unfortunate misunderstanding is a consequence of inertness of the old Presidential administration. In our opinion, these edicts should be either made public or reversed.

Restriction of the access to information is an exception, but not a rule, especially if the matter concerns normative-legal acts. State organs may restrict the access to information disposed by them only on the basis of very forcible arguments: if disclosure of these data would inflict damage to the interests, which should be protected.

Article 34 of the Constitution of Ukraine guarantees to every person the right for the freedom of consciousness and speech, for free expression of views and convictions. Everybody has the right for free collection, storage, use and distribution of information orally, in writing or in any other way at his/her own option. The Constitution envisages the exclusive list of cases, in which the right for free collection, storage, use and distribution of information may be restricted: “in interests of national safety, territorial integrity or public order, for prevention of disorders or crimes, for protection of health of population, for prevention of divulgation of confidential information or for maintenance of prestige and impartiality of justice”. Thus, every concrete case of refusal to render some information must comply with at least one of the above-listed interests. Organs of state power have no right to set any restrictions concerning rendering of information, if this information cannot inflict damage to the interests envisaged by the Constitution of Ukraine. According to Article 34, these restrictions must be set by law. Yet, the law does not define the information, which is protected by state, except the data, which are regarded as state secret. That is why the classifications generously given by state organs to various normative acts (edicts and orders of the President, decrees, resolutions, directions, instructions and orders of the organs of executive power, etc.) – “not for publishing”, “not for printing”, “for service use only”, are arbitrary and illegal. Only the following classifications may be regarded as legal: “especially important”, “absolutely secretly” and “secretly”, which meet the degrees of secrecy envisaged by the law “On state secret”.

However, even if documents are classified as “not for publishing”, “not for printing” “for service use only”, etc., the corresponding procedures of conferment and removal of these classifications, as well as the grounds for such actions, must be determined by law. Besides, the regulations on organization of the access to these documents are necessary. Yet, we could not find such normative acts. It appeared that there were no normative acts, officially registered by the Ministry of Justice, concerning the order of work with the documents classified as “not for publishing” and “not for printing”.

As to the order of work with the documents “for service use only”, it was approved by the Cabinet of Ministers of Ukraine in Resolution No. 1813 of 27 November 1998 “On approval of the Instruction on the order of registration, storage and use of the documents, files, editions and other material carriers of information, which contain confidential information owned by the state”. According to part 2 of Article 30 of the Law of Ukraine “On information”, confidential information is “the data, which are owned, used and disposed by physical or juridical persons and are distributed by their will and in compliance with the conditions determined by them”. I want to point out that, although it is not said directly, confidential information can be owned not only by physical or non-governmental juridical persons, since, according to Article 19 of the Constitution, “the organs of state power and local self-government, aw well as their officials, must act only on the grounds, within the limits of the authorities and in the ways stipulated by the Constitution and laws of Ukraine”, that is they may not distribute information “by their will and in compliance with the conditions determined by them”. Thus, one should not reckon that the second part of Article 30 contains the definition of “confidential information owned by the state”. Nevertheless, the classification “for service use only” is given just to such information, and criminal responsibility is envisaged for its divulgation (Article 330 of the Criminal Code of Ukraine). So, what information owned by the state is regarded as confidential? It is not known, since the lists of such data, which had had to be compiled by the organs of state power and local self-government in compliance with the above-mentioned Resolution of the Cabinet of Ministers No. 1813 of 27 November 1998, were not published, even if they had been compiled. Thus, the organs of state power have no right to restrict the access to information only on the basis of the right of owner of information and distribute it by their own will, as it is written in Article 30 of the Law of Ukraine “On information”.

In our opinion, your predecessors concealed behind the illegal restricting classifications their corruption activities, lobby agreements and unexampled level of welfare of the top nomenclature. This is confirmed by, for instance, President’s edicts No. 1180/2002 of 17 December 2002 “On Regulations on state administrative department” and No. 1213 of 14 December 2002 “On the additional measures for material security of workers of the Supreme council of justice”, which were classified as “not for publishing”. These edicts were made public by Yulia Timoshenko in the end of 2002. “The national program of development of energetics up to 2010” is still hidden under the classification “for service use only”, as well as the agreement of 29 October 2004 between the company “Naftogaz Ukrainy” and “Gazprom” on the creation of gas consortium. The latter agreement is closed even for the members of supervisory board of “Naftogaz Ukrainy”. There are many other examples.

Thus, the illegal practice of classification of information must be ceased, and numerous illegally classified normative-legal acts must be declassified and published.

We are turning to you with the civil demand to stop immediately the practice of use by the President, Cabinet of Ministers of Ukraine, ministries and state committees, other organs of state power and local self-government of illegal classifications restricting the access to information – “not for publishing”, “not for printing” and “for service use only”, to open and make public the normative-legal acts (resolutions, orders, etc.), to which these classifications were applied. We are appending to this letter the list of such acts for 2000-2004 and January 2005, found by us with the aid of computer legal system “Liga: Zakon”. We want to point out that it, probably, is only a top of iceberg, since, we believe, there exist other normative-legal acts with illegal restricting classifications, which were not handed for registration to the Ministry of Justice of Ukraine.

Taking into account the great social significance of this problem, we are sending this appeal in the form of open letter (which is a common form of interaction between human rights protecting organizations and state organs) and are proposing to all interested persons and organizations to join the appeal.

Sincerely yours,

Evhen Zakharov,

Co-chairman of the Kharkiv group for human rights protection, chairman of the board of the Ukrainian Helsinki union of human rights, member of the board of the international association “Memorial”

From “Prava ludyny” editorial board: The Kharkiv group for human rights protection monitored, during five years, the normative acts issued by the President of Ukraine and the organs of state power.

The Table contains the number of normative acts with classifications “not for printing”, “not for publishing” and “for service use only” issued by the organs, which use these classifications most frequently.

Table

The recent Resolution of the Cabinet of Ministers of 19 January 2004 No. 15-p classified as “for service use only”, which has been signed by Mykola Azarov four days before his retirement, concerns the material provision of ex-President of Ukraine Leonid Kuchma. For some reasons the privileges stipulated for Leonid Kuchma is much greater that the privileges for ex-President Leonid Kravchuk.

The collection of signatures under this letter is organized on the site www.maidan.org.

In October 2004 advocate L. Boslak turned to the Sevastopol human rights protecting group. She told about the situation concerning her client B. Kutarba. In the end of August 2004 a group of three persons (B. Kutarba, O. Dautiya and R. Keshikashvili) was detained. They were suspected of robbing flats.

In the middle of September 2004 L. Boslak started to participate in this affair. At once she disclosed a number of violations concerning her client. For about a month Kutarba and his accomplices were kept in the cells for temporary detained in the district militia station, they got no medical aid. When the advocate met with her client, she saw the traces of beating and intravenous injections. This could evidence about application of physical violence and narcotic drugs. Kutarba confirmed that. The investigators gave him narcotics in order to get the “needed” testimonies from him, since he was a drug addict. The petition of the advocate about the conduction of medical expertise was unavailing. Besides, she could not get the information about investigation actions connected with her client. The situation with other accused in this case was similar.

The appeals of advocates and relatives of the detained to the organs of investigation and to the prosecutor’s office did not change the state of affairs.

In such situation the Sevastopol human rights protecting group regarded as expedient, along with appeals to prosecutor’s offices of various levels and the ombudsperson, to communicate to Amnesty International about the violations of human rights. The urgent action was carried out. Enormous quantity of letters and faxes with protests against the violations of human rights was received by the General Prosecutor’s office, prosecutor’s office of Sevastopol and the Sevastopol city militia department.

There are some positive results, in spite of the fact that these instances did not acknowledge in their official responses that the rights of detained Kutarba, Dautiya and Keshikashvili had been violated.

The medical expertise was conducted (although after long delay -- 2.5 months), which confirmed the presence of physical injuries on Kutarba’s body after his arrest. Medical aid is rendered, investigation actions are not realized without participation of the advocates. The advocate can use the materials, collected in the course of the investigation, for court defense of their clients and for handing the appeal to the European Court.

On 27-30 January the Fifth school of human rights for activists of Ukrainian human rights protecting organizations was held in Kharkiv. The School was organized by the Kharkiv group for human rights protection (KhG).

47 representatives of non-governmental organizations from 18 regions of Ukraine, Kyiv City and the Crimean Autonomous Republic took part in the work of the school. Those, who were lucky to get to the school after the competition, listened to the speeches of co-chairman of the KhG Evhen Zakkharov, candidates of law Vsevolod Rechitskiy and Ruslan Topolevskiy, lawyer Arkadiy Bushchenko, head of the KhG public reception office Ludmila Klochko and others.

“Even in the most democratic country the majority, fighting for its interests, can violate the rights of individual”, pointed out Ludmila Klochko. “The main task of human rights protectors is to defend human rights from the illegal actions of the state and its organs. Our School is conducted for giving the opportunity to its participants to obtain new knowledge, to exchange experience, to find new partners for organization of joint work”.

It is noteworthy that the Fifth school was held in the post-election period, and many organizations, taking part in it, had actively protected voters’ rights during the presidential election-2004. So, the “pupils”, many of whom were the members of non-governmental organizations with many-year experience, shared their impressions, told about the disclosed falsifications, suggested the ways of democratization of the election process and the society as a whole. Four days of the School were saturated with substantial lectures and interesting trainings. The participants considered the questions of Ukrainian constitutionalism in the modern context, the conceptions of human rights, protection of human rights in courts, in particular, the European Court, activities of non-governmental organizations in the sphere of human rights protection, etc. The human rights protectors carried out a heated, but tolerant discussion of the problems of interaction between human rights protecting organization and the power, correlation of politics and human rights protection, cooperation of non-governmental organizations and mass media, organization of informational exchange, joint actions and campaigns.

The participants of the school practiced in preparation of the projects united with the general idea: “Free person in free country”, and, as its was pointed out by them, this creative work, in spite of very limited time, was conducted on the high level. Perhaps, some of these projects will become the basis for creation of real programs, which would be realized in Ukraine in the nearest future.

The participants of the School parted not only as associates, but as a real friends. They gave each other their contacts and arranged about further cooperation, the cooperation for the sake of human rights, for the sake of people.

P. S. The anonymous poll was conducted among the participants of the Fifth school of human rights for activists of Ukrainian human rights protecting organizations. The respondents had to estimate, by the 12-point scale, the level of organization and conduction of the action. It seems that the average estimation was absolutely deserved -- 10.8!