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15.12.2003

Old problems and new menaces

   

10 December is the Day of human rights, which is celebrated throughout the world. Besides, 10 December is the traditional date for summing up the situation with the observance of human rights in the current year. This year the 55th anniversary of the adoption of the Universal Declaration of human rights is celebrated, and we can point out that no one of its provisions lost its actuality, and that is one of the most important features of this document. Ukrainian lawyers and politicians declare with pride that the Ukrainian Constitution reflects the full list of the rights and freedoms mentioned in the Universal Declaration. Yet, are these rights and freedoms guaranteed? On the contrary, the human rights and freedoms are abused permanently. Unfortunately, there was no progress at all in the sphere of human rights during the years of independence, and in some questions the Ukrainian power managed to surpass the communist one. So, when sociologists put the question: «Are human rights and freedoms observed in Ukraine?», 56% of respondents answered «no», 18% — «yes» and 26% — «I do not know».

For some reasons nobody, who speaks about the constitutional reform, recollects about section 2 of the Constitution. Yet, this section must be changes first of all. «The right for living accommodation», «the right for satisfactory living standard, including the right for satisfactory nourishment, clothes and living accommodation», «the right for the environment safe for life and health» (Article 42, 43 and 44) and other positive rights look as a mockery today. The direct action of the Constitution concerning the norms, which guarantee social, economic and cultural rights, is impossible. That is why these norms of the Constitution must be changed, like it was done in the Constitution of Poland, which guarantees such rights not to all citizens, but only to socially unprotected layers. Another way is to stipulate the minimal standards, for example, to determine the term «satisfactory living standard». Without this Articles42–54 of the Constitution will remain a usual dissimulation. Article 49 must be urgently changed too, since it is obvious that the gratuitous medicine is impossible now, and this norm drives both doctors and patients to almost tragic state. It is impossible to claim to court against the violation of these rights. The constitutional system of the protection of human rights and freedoms in Ukraine does not function, since the mechanism of handing the constitutional complaints to the Constitutional Court is extremely restricted, and only a handful of applicants (out of several thousands) could use their right for obtaining the interpretation of constitutional norms from the Constitutional Court. It is necessary to widen the circle of the subjects of the constitutional appeal by adding the common courts and physical persons to the list of the subjects.

The violations of social, economic and cultural rights are especially obvious on the background of the adoption of the anti-social budget-2004, which envisages the decrease of minimal wages and the synchronous increase of the prices for primary foodstuff. The prices for medical drugs are growing too, and since the New Year this prices will increase again, approximately for 30%. The difference between the incomes of the richest and the poorest Ukrainians becomes greater and greater, now this difference is 8–9 times greater than in Eastern countries. This is a very dangerous phenomenon. So, it is not surprising that, according to the information of ombudsperson Nina Karpacheva, seven million of Ukrainian citizens are looking for a job abroad.

The KhG reckons that the campaign of the intensive political support of the constitutional reform has been the most important recent political action of the Ukrainian state power. The KhG believes that the constitutional reform, in its present form, does not correspond with the real interests of the Ukrainian people either from the viewpoint of the present time or the abstract perspectives of state politics. The reform is inconsequent from the angle of the organizational methods, insincere from the angle of moral and political substance, thoughtless from the angle the normative-legal qualities and not predictable from the angle of the potential social and political consequences. The conception of the constitutional reform, which is proposed today by the operating power: election of the President by Parliament, essential contraction of President’s authorities concerning the government, etc., does not improve, but deteriorates the Basic Law. This conception obviously restricts the political controllability of the country and «infects» the executive branch with the parliamentary dissensions. The reform is insincere from the moral-political viewpoint too, since, on the background of the declarations about democratization, it decreases twice the amount of the elective rights of the Ukrainian citizens and contradicts the principle of  direct election, stipulated by Article 71, section III of the Constitution of Ukraine.

Application of torture and cruel treatment continues to be one of the most important problems in Ukraine. Such international organizations as the UNO Committee against torture and the European Committee in charge of the questions of preventing torture and cruel treatment more than once pointed out the absence of the regulation of the access of the detained to medics and the imperfect regulation of the access to advocates. Yet, these questions are still not solved. The recommendations of the Committees concerning the introduction of the juridical prohibition of interrogations in the absence of advocate, chosen by the detained, were ignored, and the operating laws were not changed. On the contrary, the draft of the new Criminal-Procedural Code aggravates the situation with the rights of the detained and practically nullifies the right for defense. The recommendation was also neglected to refuse from the practice of directing the criminal cases by courts for the additional investigation and to restrict the total term of keeping in custody during the investigation and trial (in Moldova, for example, this term cannot exceed two years). The absence of such restriction results in the situation, when many people stay in preliminary prisons for years, and the Eastern experts regard the upkeep conditions in our preliminary prisons as torture. The hopes for the transfer of the authority of taking into custody from the prosecutor’s office to court also were not justified. As a result, 44.5 thousand persons stay in preliminary prisons today, which is 15% more than in the previous years. The qualification of torture in the Criminal Code does not correspond to the definition given in the international right, so it must be changed according to Article 1 of the UNO Convention against torture. It is also necessary to fulfill other recommendations of the UNO Committee against torture: to realize legislatively the principle of inadmissibility of using the evidence obtained under torture and to stipulate the absolutely independent mechanism of accusation in order to guarantee the immediate, unbiased and complete investigation of the complaints against torture.

In general, the access to justice is a very serious problem. The law on legal aid, which would regulate rendering this aid by the state, was not adopted, the quality draft is absent too. The court system is financed insufficiently, it does not obtain even the sums, which are stipulated by the state budget. There are 3700 judges in the country, and the needed number is 4500. Only 1.2 million civil cases, 2 million administrative cases and 150 thousand criminal cases were considered during nine months of the current year, and the terms of the consideration are permanently exceeded. How can, for example, 20 judges of the Chamber of civil cases of the Supreme Court consider 16000 cases within the proper term?

Absence of the modern law on thenon-governmentalnonprofit organizations essentially impedes the development of civil society. Now the obsolete law «On unions of citizens» adopted in 1992 is operating, the imperfection of which is aggravated by administrative and court practices. The freedom of activities of the Ukrainian NGOs is constricted also because of the absence of the law on the conduction of peaceful public actions. The Ukrainian legislation does not contain the definitions of such terms as «picket», «tent camp» and many others. The organs of state power and local self-rule still apply the Edict of the Presidium of the Supreme Council of the USSR of 18 July 1988, which contradicts Article 39 of the Constitution of Ukraine, since it introduces the permissive order of the conduction of public actions. Courts also use this Edict because of the absence of other laws. However, the existing law draft was rejected at the second reading. The gap in the legislation continues to exist, and this generates numerous conflicts, which frequently result in clashes and application of force. It is sufficient to recollect about the events of 9 March 2001, 16 September 2002, recent shameful events in Kharkov, Donetsk, Sumy and other regions of Ukraine. The officials impede the conduction of mass public actions; they coercively drive the workers of the budget sphere to the mass actions organized by the power, such as theso-called «public forum» that was held in Kharkov on 14 November. The access of journalists to this forum was restricted, and the participants even did not know, what questions would be discussed, since they were not familiarized the last draft of the constitutional reform.

The mass attack on human rights began in 2003. A number of law drafts were presented, which essentially widened the authorities of force structures: the Criminal-Procedural Code, «On the introduction of changes to the Constitution of Ukraine», «On struggle with terrorism», «On the introduction of changes to some laws of Ukraine (in the connection with the introduction of the Law »On struggle with terrorism«)», «On the introduction of changes to some legal acts of Ukraine (concerning the protection of state secrets)», «On telecommunications», «On the monitoring of telecommunications», «On the freedom of movement and free choice of the place of residence in Ukraine», «On the State register of physical persons», «On the Unified register of personal data», «On the protection of public moral», etc. The adoption and full-scale realization of these drafts would transform Ukraine into a police state. Some of these laws were adopted, and some were rejected or returned for the revision. So, the law draft «On the monitoring of telecommunications» envisages the excessive authorities of the USS, but does not stipulate clearly the legal grounds for the conduction of the monitoring and does not contain any guarantees against the misuses. All in all, the draft can cause the violations of human rights and fundamental freedoms, first of all, the right for privacy. The right for privacy is also infringed by all law drafts connected with the identification and registration of persons. These laws envisage the introduction of the universal identification code, which would be used in all documents identifying the person. Yet, this will create the opportunity to unite different registers (databases containing personal information), although part 2 Article 32 of the Ukrainian Constitution prohibits to collect, store, use and spread the information about a person without his/her consent. First of all the modern law «On the protection of personal data» must be adopted, which would conform to the European standards in this sphere. Yet, the draft «On the protection of personal data», which was adopted in the first reading, is imperfect and needs the essential improvement.

It should be noted that human rights protecting organizations has reached such level of development that they are able to unite their efforts in the sphere of human rights protection and to influence the lawmaking process. So, the open letter of 24 human rights protecting organizations prevented the adoption of the Criminal-Procedural Code in the second reading: the Code was directed for the revision. The analysis of the law draft «On the monitoring of telecommunications» convinced the MPs that this draft demanded the additional professional expertise. The intensification of the influence of human rights protecting organizations evoked the recent appeal of MP Simonenko to the USS and State Tax administration with the demand to check the activities of non-governmentalorganizations not only from the viewpoint of legislation, but also from the viewpoint of national interests.

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