HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN UKRAINE: OLD AND NEW CHALLENGES
This report aims to provide a comparison of the situation with regard to human rights in Ukraine during the period which has already become known as the ‘Kuchma era (1994-2004) and the situation in 2005. However, in order to achieve such a comparison and to consider at least some elements of the dynamics of the relations between the young State and the civic society which has emerged in Ukraine and is constantly becoming stronger, it is important to move back a step or two and take a retrospective view of the events beginning from December 1986, when the death of Anatoly Marchenko on 8 December in the Kuchino special camp for political prisoners and the release of Andrei Sakharov from his total isolation heralded a new era.
“And the space around us again comes to life”
(December 1986 – August 1991)
Before ‘perestroika nobody except dissidents spoke seriously about human rights in the USSR. Although the USSR had been a party to the UN pacts of 1966 and other international treaties in the field of human rights, and had signed the Helsinki Accords in 1975, it demonstrated no intention of fulfilling its obligations. Soviet lawyers even at the beginning of the 90s were still referring to human rights as «a bourgeois invention», and up to the middle of the 80s, nobody had any idea about the Universal Declaration of Human Rights, not to mention other documents, even though these were confiscated when dissidents were subjected to searches as anti-Soviet documents, which, in essence of course they were. Human rights activists, the vast majority of whom had a purely intuitive concept of human rights at that time, and who seldom used the appropriate terminology, were severely punished for publicly expressing their views. Yet it was they who provided the moral and intellectual support of the intelligentsia. In Ukraine large numbers of human rights activists were most often involved in the national democratic movement. Here repression was particularly fierce, especially towards those who defended their national rights.
At the same time, by the middle of the 80s, it was quite clear to anybody who spent any time thinking about the situation in the country that changes were needed. The Chernobyl disaster speeded up this process throughout society. The situation began to change radically during the spring of 1987 when a huge number of prisoners of conscience were released. People were no longer being imprisoned for their views, in fact, quite the contrary: their views began to be listened to, and their ideas, for which they had previously been persecuted, now began to be implemented. Books which had previously been labelled ‘anti-Soviet, and which people had been imprisoned for distributing or even for holding, were now published. It became possible to create open associations which were truly free from State control. We saw the appearance of the first cultural, ecological, socio-political, and with time, purely political civic organisations. ‘Samizdat was replaced by an independent press. Public actions, organised ‘from below began to be held – gatherings, political rallies, demonstrations and pickets. The civic democratic movement which began in 1987 in Kiev and Lviv by the end of 1989 had spread to almost every city in Ukraine. Its rapid growth was encouraged by the elections to the Supreme Soviet of the USSR in 1989 and to the Supreme Soviet (Rada) of Ukraine and to Local Soviets in 1990, where representatives of the civic movement were elected in cities, and in Western Ukraine, also in rural areas. It should be mentioned that the main aims of the movement were at that time to defend national rights and to gain freedom from rigid state control of different spheres of civic life, most importantly freedom for the mass media, literature, art and religious life.
The civic movement in Ukraine of 1987 – 1991 developed, in general, in a way typical for the post-totalitarian area, although with a slight time lag: in the middle of 1991, it was at approximately the same stage as the Baltic States had been at by the middle of 1989. It was, moreover, extremely uneven and heterogeneous. In western regions it was more of a mass movement and was overtly nationalist and democratic in its orientation. As one moved further east and south, the number of supporters of nationalist ideas became fewer and fewer. In the east, the civic movement defended general democratic values, was limited to large cities and was much weaker. Here, right up to the end of 1989, the display of a national flag could lead to a person being punished for an administrative offence, and even imprisoned for several days. All political parties which appeared around the beginning of the 1990s were nationalist-democratic, were headed by former political prisoners, and had programs which expounded non-violent methods of opposition and observance of human rights. On the whole, the democratic movement at that time defended human rights spontaneously and unconsciously in that it favoured a move towards greater freedom for Ukrainian society.
“All became confused once and for all”
(September 1991 – 1994)
The August coup and subsequent collapse of the Soviet Union led to a fundamental change in this situation. Ukraine became an independent State for all that Ukrainian society was not yet ready for this. The gaining of independence immediately highlighted the differences in approaches to resolving main issues, differences in the general world views of civic activists who had previously been united in a common aim – the democratisation of public life, and in having a common enemy – the communist regime. Internal conflicts split the previously united movement, disagreements and the increasing worsening of the socio-economic situation led to a thinning of their ranks and a loss of public support. Although the ideological barriers had come down, and the communist elite had temporarily become subdued, with a large part of them supporting independence, the democratic movement was not able to overcome these problems. The degree to which society was not prepared for change, the general disorientation, ‘chaos in the minds of a critical mass of the population were factors contributing to the lack of political and economic reforms and impossibility of making a rapid start towards democratic transformations in a now independent country. The sphere of freedom did not widen in those years, and in many ways, actually became narrower.
The main reason for this was the weakness of Ukraines democracy. Communism in Ukraine had not been defeated. Ukrainian society, ravaged by the mass political repressions of the 30s – 80s, was split into ‘easterners and ‘westerners, and psychologically not ready for independence, and incapable of effecting a change in the political elite. Ukraine did not go through the process of de-communisation that Poland, the Czech Republic, Hungary and other post-totalitarian countries experienced: it began with the prohibition of the communist party, and ended there. The Soviet administrative and directive system, with all its inherent contradictions, was however retained. The former political elite virtually entirely stayed in control at all levels of power. This can partially be explained by the general conservatism of Ukrainian society. It is no accident that an ex-leader of the ideology department of the Central Committee of the Communist Party of Ukraine, Leonid Kravchuk, became the first elected president of Ukraine, despite the fact that he had stated publicly that he knew nothing about the artificially induced famine of 1933. More than 60% of Ukrainian voters preferred him to the former political prisoner, Viacheslav Chornovil. The relaxed, familiar Kravchuk seemed closer.
Human rights in those years were seldom mentioned, with literally only a few in this huge country concerned about them. The vast majority of Ukrainian human rights activists had already entered politics during the second half of the 1980s and were now involved in the building of the State. In the autumn of 1991, it suddenly became clear that there were no human rights organisations in the country, that is, no civic groups, whose aim was not to obtain and use power, but rather to monitor activities, collect, collate and disseminate information about the situation as regards human rights, to help citizens in various ways to defend themselves from organised force, imposed by the State, providing advice, legal, material, moral assistance, etc, and analysis of the activities of various branches of State power, to organize monitoring of these branches and to counter systematic violations of human rights. Such structures needed to be created from scratch, and this process began. In spite of the enormous efforts made and isolated successes (the active and fruitful participation in the constitutional process, drawing public attention to the huge number of executions, protecting people from criminal persecution and, in some cases, flagrant violations of human rights, the translation into Ukrainian and dissemination of the fundamental body of international documents relating to human rights, innovative ways of teaching human rights in schools by dedicated teachers, and so forth), they could not have a vital influence on events.
Having waited a little and looked around, the Ukrainian nomenclature (the political elite) understood that nobody was seriously threatening to usurp their position and began to organise the state to suit their aims and interests, principally that of increasing their personal wealth. The fact that in the process whole areas of the economy were devastated concerned virtually no one. Meeting with practically no opposition from society, the nomenclature, which was closely linked to business and state bodies, became more and more powerful, providing stark confirmation of the old rule: the state can do anything with people if the people let them do it. A young, initially quite passive, State began to gradually stagnate into a form that was increasingly unacceptable for the general population: it became more and more concerned with serving those in power while increasingly indifferent to the fate of all others and aggressive to anybody who expressed dissatisfaction with the system of relations which was developing.
“There have been times that were worse, but none more sordid”
(1994 – 2004 )
With the election of Leonard Kuchma President of Ukraine, the process of personal aggrandizement of the nomenclature, the creation of financial-oligarch clans and increasing poverty of wide layers of the population gained momentum and became more vicious. The hopes of many that a strong President-technocrat, as Kuchma «the bulldog» seemed to be, would carry out reform proved to be suicidal illusions. Faith in strong executive (presidential) power has never proved justified, government structures are slow to reform and cannot keep up with the fast development of events. Paternalism was supplemented by an information crisis, the direct dictatorship of executive structures over society, financial and economic extortion by a bureaucracy which had not internally changed to become accountable to citizens. In the economic sphere, our country, unfortunately, had become bankrupt, and culturally it seemed provincial. The interests of the bureaucratic apparatus in a whole range of political situations proved too strong, and social activity was, accordingly, undermined.
According to Article 3 of the Constitution of Ukraine «human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State». Yet the Ukrainian state appeared to be incapable of fulfilling this duty, particularly given it was itself the perpetrator of human rights violations, and since public control over the actions of the State powers in many areas was non-existent or weak, these violations became more and more widespread and substantial. Some interrelated trends which are highly dangerous as far as human rights are concerned became gradually more entrenched:
1. The administrative arm of the State strengthened together with the will to strictly regulate life in any sphere (particularly economic), which significantly restricted individual liberty. People remained, as before, defenceless and dependent on the State machine, while those who, by engaging in business, sought to become economically independent found themselves in the clutches of fiscal authorities, whose administrative procedures and methods of punishment became more and more sophisticated. The consequences of this for the expansion of business were fatal. It is not appropriate to talk of freedom of enterprise in this situation. In the country, the tax system seemed designed to render legal business impossible, and everybody was forced to break the law, and was therefore vulnerable. However the bodies which could impose punishment, worked selectively: they repressed those who supported the opposition financially, or who tried to be independent (Boris Feldman, the head of «Slovyanski» bank was just one example) and who broke the unwritten rules of behaviour in the system of inter-clan relations which had developed. The right to private ownership was consistently and flagrantly violated, with violations of the right to own land occurring on a mass scale.
With the intensification of the political conflict between those in power and the opposition, the policy of the tax authorities became accordingly more repressive, the latter effectively turning into a controlling body, and to a certain extent beginning to fulfil the same role in Ukraine that the KGB had had in the former USSR. Those in power did everything to make sure that only business which was closely linked with them could succeed, and this allowed the State apparatus to get still further out of hand and increased corruption.
2. Poverty and social inequality rose. According to official statistics, at the end of 1999 (this was the harshest year for Ukrainians) at least 30% of the population had an income below the poverty line (that is, the low income point, below which social security assistance is paid – 73.7 UH (Ukrainian hryvnia), while the average salary was 155.5 UH a month, and the subsistence minimum was 220 UH). The divide between the income of this part of the population and that of the 5% of the wealthiest people was becoming ever greater, being already five or six times greater than the corresponding divide in countries of Western Europe and USA. The social and economic rights declared in international pacts and guaranteed by our Constitution (their inclusion in the Constitution was a long despised Soviet trick!) – the right to an adequate standard of living, to social security, to employment, to healthcare, etc – seemed a total mockery. Violation of these rights was most significant. The State had never actually defined «an adequate level of nourishment, clothing and housing», and could therefore with impunity fail to fulfil the obligations that it had taken upon itself with relation to the elderly, the disabled and families with many children. Widespread delays of many months in paying salaries and pensions from the state budget, pitiful assistance to families with many children, the allocation to those with oncological diseases of 3.7 UH a year (!) for medication, the closure of entire units in psychiatric hospitals, stopping the issue of medicine to chronic psychiatric patients (this list could go on and on) – all these typical features of the government under Evhen Marchuk, Pavel Lazarenko and Valery Pustovoitenko were seen in the popular perception as a violation of the right to life, which is understood in our country in a different way than in western countries, where the issue is one of deprivation of life in the implementation of a sentence of court. As a result of a demographic crisis, caused in the first instance by social and economic factors, the population of the country is decreasing by approximately 400 thousand a year.
The government under Yushchenko as Prime Minister succeeded for a short time in countering these trends. Having changed the conditions of work on the energy market, and forbidden barter, the government achieved such a successful increase in State revenue that in the year 2000 State revenue exceeded expenditure. As though with the waving of a magic wand, the budget debt from salaries and pensions began to disappear, pensions were increased, foreign debt decreased and its economic growth rate made the country one of the most dynamic in Eastern Europe. The income level of Ukrainians began, albeit very slowly, to rise. The poverty level for the first half of 2000 was set at 90.7 UH (per month), for the second half – 118.3 UH and for 2001 – 153 UH After the dismissal of Yushchenkos government, this positive trend continued, but at a significantly slower pace. According to statistics from the Ministry of Employment and Social Policy, at the beginning of 2002 at least 25% of the population had income below the poverty line, with the income of half of these people no higher than 120 UH per month. Due to a sharp fall in State revenue, there were again delays in paying salaries in the State sector, while the much trumpeted pension reform proved to be aimed exclusively at former State officials and had practically no effect on lightening the burden of poverty of those with little. Yet, nonetheless, the income level of those who were active and wanted to work, albeit slowly, did rise. A large role in this was played by the 7 million Ukrainians, forced to work abroad. An increase in number of births led to a slowing down in the demographic decline. However the rise in prices to a large extent negated the growth in income, and a large part of the population (by our calculations, approximately 22–25%), still have an income on the poverty line or below.
3. Political conflict gradually turned into a situation where opponents were stifled using any means, in particular, with the help of State bodies, including law enforcement agencies. This was demonstrated clearly in the election campaigns of 1998, 1999, 2002, 2004 and the referendum of 16 April 2000. Infringements of political and civil rights during the elections and referendum were the most serious of all the years of independence. Voters were flagrantly and persistently pressurised to make ‘the correct choice, and there was practically no chance for any opposition candidate to have contact with the electorate through electronic means of mass media. No means were barred when it came to applying administrative pressure to ensure the desired result, and State executive bodies turned both the elections and the referendum into a show which elicited no other feelings, than humiliation, shame and outrage.
Following victory in the 1999 elections, the Presidents team went on the offensive, in order to crush dissent once and for all, ignoring in this all principles and norms of the law. First of all, a coup was effectively organised in parliament. The actions and decisions of a ‘parliamentary majority which met away from parliament in another building all together were declared legitimate without any grounds whatsoever. By voting again for the key leadership positions in parliament and on parliamentary committees, and taking a number of other decisions in the absence of the minority, the majority fundamentally violated universally recognised international standards of parliamentary democracy. The next step, which was aimed at effectively subordinating parliament to the President, was the Referendum of 16 April 2000 on introducing amendments to the Constitution, supposedly at public request, but in fact, following a presidential initiative. The referendum was a flagrant violation of the Constitution, both with regard to the introduction of addenda to it, and procedural guarantees for expressions of the will of the people, and, most importantly, in relation to Article 3 which proclaims the dignity of a human being to be the highest social value. Coercion of voters and intimidation were of a total and thoroughly idiotic nature: from doctors collecting signatures in support of the referendum from their patients, to teachers taking school bags away from their students so that their parents would come to school to collect their childrens bags, and would also vote. Students and their lecturers were ordered by the administration of their institutes to bring documents confirming their participation in this festival of democracy. Nonetheless, the referendum was a flop, with both the opposition and society as a whole finding enough strength to counter this national farce. However society in general was still weak, and those in power strong, and determined, as before, to keep total control. This was clearly seen in the parliamentary elections of 2002. Having mobilised all resources and yet been abjectly defeated, the party in power succeeded through intimidation, blackmail, and bribes to form the biggest faction in parliament, thus stealing victory from the bloc «Nasha Ukraina» [«Our Ukraine»]. In order to retain power-giving authority, other drafts for reforms to the Constitution were pushed, the implementation of which was also of an imposed nature. The opposition succeeded in defeating these attempts to crush constitutional rule, however the issue regarding amendments to the Constitution to suit those in power remained open.
The case of Gongadze and Major Melnichenkos tapes, as well as the activity of the Committee «Ukraine without Kuchma» speeded up the process of confrontation of those in power and the people, and its formalisation in the political field at an institutional level. After the dismissal of Yushchenkos government, it became clear that a political opposition had appeared with all chances of changing the course of events in the country. The political confrontation of those in power and the opposition became more and more ferocious and turned into open conflict during the election campaign of 2004.
4. Criminal and legal policy became increasingly brutal. Torture and cruel treatment during the detective inquiry stage and pre-trial investigation in order to extract confessions became an everyday occurrence, most often remaining unpunished or, worse, being seen as normal. This led to the spread of arbitrary rule and a sense of impunity in the law enforcement bodies on the one hand, and an increased feeling in all others of being defenceless, on the other. The level of trust in the police dropped during these years by 5 – 12% (depending on the region). Our country was a record holder for the number of prisoners per head of population and for the number of death sentences passed in that period. The number of people convicted of crimes rose from 108,500 (35% of whom were sentenced to deprivation of liberty) in 1991 to 222,200 (37% being sentenced to deprivation of liberty) in 1999. The problem of overcrowding in pre-trial detention centres (PTDC) became more and more serious. At the beginning of 1994 38,9 thousand detainees were being held in PTDC, with official space for 11,300 people, while by the end of the year 2000 this figure stood at 46,2 thousand, although the number of official places had risen to accommodate only 1800 more detainees. Despite recommendations from international organizations to shorten the length of time spent in custody during preliminary investigation, this remained unchanged, with the maximum detention period standing at 18 months. Nor was there any success in introducing limitations on the total time limits for detention during investigation, time for familiarizing oneself with the case and court procedure. Despite the fact that judges sent approximately each tenth criminal case away for additional investigation, it was not uncommon for people accused to spend years in pre-trial detention centres, although innocent, simply because there had been no verdict in their case, and a judge would not dare to either acquit them or change the preventive measure imposed. Incidentally, the number of acquittals during all those years did not exceed 0.35%. The conditions in pre-trial detention centres were in themselves harsh and inhumane. The acute worsening of the economic situation was reflected also in the financing of PTDC and penal institutions – expenditure on food during those years fell to 8–12 kopecks a day for each prisoner from 1998 – 1999, and on medical care – to 4 – 7 kopecks. Such pitiful financing can explain the high percentage of illness and high mortality rate in places of deprivation of liberty. In 1999, 3081 prisoners died, which almost equalled the mortality rate in the country as a whole (14 deaths in each thousand of population) and this despite the fact that the vast majority of prisoners were young and able-bodied (with almost half under the age of 30).
The introduction of a new Criminal Code, and court control over arrests, did not ease the problems of the penal system as had been expected. The repressive nature of criminal and legal policy remained intact. The number of those convicted and deprived of liberty decreased only very slowly. The number of people suspected of a crime, where the court imposed remand in custody as preventive measure did not fall, and thus the conditions of detention in pre-trial detention centres remained harsh. The general number of prisoners remained on the level of 190 – 200 thousand. As a result of increased funding of the penal system, there was a fall in the mortality rate, however it remained relatively high. The problem of tuberculosis in prisons was still not being adequately addressed.
There were some changes for the better as regards prevention of torture between 2000 and 2004. In December 2000, the death penalty was declared by the Constitutional Court to be in breach of the Constitution, and was replaced by life imprisonment. Torture was now defined as a separate crime in the new Criminal Code of Ukraine. Penal institutions became slightly more open. Thanks to the principled stands of the Ministry of Defence and the Chief Military Prosecutor, and greater cooperation with human rights organizations, there were less serious cases involving «dedovschina» (mistreatment and bullying of conscripts by those with higher rank) in the army. Through the efforts of human rights organizations the problem of torture and inhumane treatment began to receive much more attention in the mass media.
5. The disrespect for the judiciary, and indeed for the rule of law in general became ever more overt. This was demonstrated by the constant violation of the principles of the rule of law in favour of immediate political expediency, the disregard for the principle of court independence, pressure placed on the courts by the Presidential Administration or the State executive branch of power as a whole, the appalling state of financing for the court system and the efforts to inculcate in society the belief that the judiciary was one of the most corrupt institutions in the land. The Presidents team blocked the development of constitutional legislation designed to develop constitutional norms and to establish clear powers for both the executive and legislative branches of power. Such means were used to stall laws on the role of the President, on the Cabinet of Ministers, on temporary special and investigative commissions of the Verkhovna Rada, on its regulations, on pre-trial investigation units, etc. President Kuchma vetoed the Law “On the Cabinet of Ministers of Ukraine” 8 times and the Law “On temporary special and investigative commissions of the Verkhovna Rada” 5 times.
Expenditure on the judiciary did not even meet half the required amount. Thus, for example, under the synthetic code of economic classification of expenses 1139 “Payment of other expenses” which until 2004 covered expenses for the services of court lawyers appointed in criminal cases, for the transport and accommodation costs of victims and witnesses during court hearings, as well as the services of experts during a criminal investigation, security guards, insurance, professional services, etc, in 2001 appeal courts received 365,1 thousand UH (67,5% of the amount set out in the budget), in 2002 – 296,2 thousand UH (75% of the planned amount), while local courts received 79,9 thousand UH (this being 36 % of the amount set aside) in 2001 and in 2002 – 927,9 thousand UH (42,7 % of the planned amount). These figures show that access to the courts, guaranteed under Article 59 of the Constitution was in no way a priority for the Ukrainian State. The financing of the courts was absolutely pitiful and there could be no possibility of achieving independence of the judiciary under these circumstances.
The reform of the judicial system was stalled. According to the Chairperson of the Supreme Court, Vasyl Malyarenko, at parliamentary hearings held on 16 March 2005, it had moved “slowly and in a chaotic and unsystematic manner with reforms being followed by counter-reforms and attempts to review previous legislative rulings”. Trial by jury was never in fact introduced and administrative and juvenile courts were not created. The periods required for review of court cases were too long and in virtually every case there was an infringement of the principle of court review ‘within a reasonable time. The recently introduced “small judicial reform”, the abolition of the system of cassation courts and general sluggishness in creating higher courts led to an overload for the Supreme Court, especially as regards panels of judges dealing with civil cases. Thus, as of the beginning of 2004 there were still 20 thousand cases awaiting review by the Supreme Court, and by the end of the year this figure had increased by 10 thousand. One of the most urgent issues needing addressing was the problem of court rulings not being executed, this being a violation of the right to a fair trial.
It should be noted that people had now begun to seek redress through the courts much more often. In 10 years the number of civilian suits increased more than 2.5 times, while the number of complaints about unwarranted actions (or omissions) of State executive bodies and State officials were 50 times higher. The courts were now more obviously seeking to be independent. A number of decisions were taken in cases which gained publicity, which went directly against the wishes of executive bodies, leading to an outburst of irritation from high-ranking state officials in the country. The former Chairperson of the Supreme Court, Vitaly Boiko, as well as his deputies, the present Chairperson, Vasyl Malyarenko and judges of the Supreme Court spoke frequently of courts being dependent on the executive and of instances involving interference in their activity.
6. Surveillance by law enforcement bodies and the security service over the population became more and more total, this being seen most pronouncedly in the mass violations of the right to privacy of communications. Wire-tapping and tapping of mobile phones, interception of electronic mail and other means of communication took on frightening proportions. Since these investigative operations (IO) were not subject to control, it was impossible to assess the real scale of illegal, that is, unsanctioned interception of information from communication channels, this prompting numerous applications from both politicians and journalists. However even the scale of those actions carried out lawfully was staggering. As one of the judges of the Supreme Court publicly stated, in 2002 appeal courts had issued 40 thousand sanctions for the interception of information from channels of communication. This was a huge figure if one compares it with the number of warrants issued in countries with a similar population – France, the United Kingdom, etc, where the figure did not always exceed one thousand. If one assumes that a single warrant can cover the communications of around 100 people, then in 2002 the communication of as many as 4 million Ukrainians may have been monitored. The effectiveness of such operations was on an extremely low level. According to the Law “On Investigative Operations” such measures are possible only in cases involving serious or particularly grave crimes. If one compares the number of warrants issued with the number of those convicted of serious or particularly grave crimes, one can see that in general the efficiency rate of such investigative operations did not exceed 10%.
A system for monitoring communications and activity of Ukrainian citizens on the Internet was actively introduced. Back in February 2001 the Security Service of Ukraine (SSU) acknowledged that it was carrying out monitoring of information which was transmitted or received using systems and means of communication. Order No. 122 of the State Committee for Communications of 17 June 2002 stated that only Internet providers who had installed the State system for monitoring and who had received the relevant certificate would be entitled to serve State executive bodies. Furthermore, these providers were obliged to procure and install this system at their own expense. This Order had no legal basis. Understanding that they would need to legalise their monitoring, the SSU prepared a draft law which was tabled in the Verkhovna Rada as draft law No. 4042 “On the monitoring of telecommunications” in August 2003. The draft effectively legitimized the functioning of the existing system and the technical demands for it. Monitoring was presented in it as a different type of interception of information from channels of communication in accordance with the Law on Investigative Operations. However, with regard to safeguards against abuse this draft law was even worse than the Law on IO. Human rights organizations were able to block the passing of this draft law however monitoring was still carried out even without a law.
7. Peoples right to protection of their personal data was ever more infringed– this being yet another result of the desire of the State to know as much as they could about its citizens. The abolition of the ‘propiska (registration) system led to a new task of creating a register of individuals. The main decisions of the State, passed in this field, were, unfortunately, aimed at creating an effective mechanism for spying on the private lives of Ukrainians. Long discussion as to which state body should be responsible for this register – the Ministry of Internal Affairs (MIA) the Ministry of Justice, or a separately created special body; what the register should be; and how to ensure protection of personal data, ended unexpectedly on 30 April 2004 with a Decree of the President, No. 500. The Decree stated that the MIA would be responsible for the register which would be based on the Single state automated passport system which had been started in 1996, and that the process of bringing the Single register of individuals into force would be accelerated. There was no adequate response from the opposition to this Decree which effectively violated the Constitution and discarded a number of existing draft laws. A law on creating a singe register was thus never adopted. This solution to the problem of registration of individuals meant in effect the use of a singe multi-purpose individual identification number, which would make it possible to unite all data bases where information about the individual was contained. One can expect heightened conflict in this area connected with the mass refusal of Orthodox Christians to accept such an identification number. In general, if these plans are successful, they will mean that Ukraine becomes a police state.
8. Freedom of speech was ever more widely infringed. Control over the mass media, especially forms of electronic media, became more and more tight and unashamedly blatant. Independent information and analytical programs virtually disappeared. The ability of journalists to freely express an opinion was directly dependent on the political views, interests and possibilities of the owner of the channel, and of the financial-political group which backed it. In each media outlet there were permitted subjects for criticism and areas not to be touched. Since all financial-political groups were dependent on the President, the latter had to be held immune from criticism. This unwritten rule was broken during periods of heightened political conflict between the President and parliament, between the President and the opposition (publications controlled by Pavel Lazarenko, Yevhen Marchuk, Oleksandr Moroz) during parliamentary and presidential elections. However it became very difficult to express an overtly opposing viewpoint: the State executive bodies gradually developed a huge arsenal of means for forcing those in opposition to be silent. With time this became richer and more varied: the closure of media outlets (using an administrative order in the case of the newspaper ‘Pravda Ukrainy [‘Ukrainian Truth], removal of license, reallocation of radio frequencies); making rules for registration more complication, endless checks from various monitoring bodies – the Control & Audit Department (whose checks were, in general, unlawful in relation to non-governmental organizations), from the tax authorities, fire services, etc (moreover the objects of such checks were not only the mass media, but also those business structures which provided them with funding), freezing accounts in banks, printing companies refusing to print issues and even withdrawing printed issues, refusal to allow publications centralized distribution, intimidation and even beatings of journalists. After the parliamentary elections of 1998, the Security Service began to be used against opposition publications.
One powerful and widespread instrument of pressure was the use of defamation suits brought by state officials in defence of their honour and dignity with absurdly large amounts of compensation for moral damages being demanded. Unfortunately, the courts satisfied these claims more and more often, which sometimes led to a newspaper going bankrupt. The newspaper «Vseykrainskie vedomosti» [“All-Ukrainian bulletin”], for example, ceased issue after the court allowed an absurd suit to defend honour and dignity with a massive 3.5 million UH awarded as compensation for moral damages. As well as civil suits in defence of honour and dignity, criminal prosecution for slander or libel was also applied as a way of silencing critics. According to statistics of the Ministry of Justice, from 1998 to 2000, and in the first 6 months of 2001, 372 people were convicted of slander, 8 of whom received sentences involving deprivation of liberty.
From 2000 to 2001 the scope for freedom of speech and the press broadened somewhat. The opening in the year 2000 of a substantial (for Ukraine) number of new web-sites, such as korrespondent.net, FORUM, «Ukrainska pravda» and others to a large extent gave new life to Ukraines information realm. Internet publications attracted a large number of experienced journalists away from the printed forms of mass media. A lot of the methods of control developed by those in power did not work here. Moreover, journalists immediately used the cassette scandal, broadened the range of topics considered and made their coverage much more biting. However there were no real grounds for speaking of a significant expansion in freedom of speech. There remained, as previously, virtually no independent journalism in the country, with journalists still forced in the same way to remain within the boundaries imposed by the owners of that particular media outlet. Among successes (achieved largely thanks to the efforts of human rights organizations), it is worth mentioning the removal of slander and insult from the new Criminal Code, and the passing by the Plenary of the Supreme Court of Ukraine on 25 May 2001 of a progressive resolution «On court practice in cases involving compensation for moral (not material) damages», in which the Supreme Court strongly recommended that the courts apply the European Convention for the protection of human rights and fundamental freedoms. Between 2000 and 2004 there were a large number of precedents of Article 10 of the Convention being applied by courts in law suits against the mass media, where a rejection of the case was argued from the position of the European Court of Human Rights. On the whole, one can state that suits against journalists to defend honour and dignity were now much more often decided in favour of the latter, as long as the journalist had acted conscientiously. Thus, for example, all known suits brought against journalists to defend honour and dignity by generals of the Ministry of Internal Affairs were rejected.
In the middle of 2002 a new attack on freedom of the mass media, in particular, electronic forms, began, where the use of ‘temnyki made all news programs similar and uninteresting. The printed mass media also became less interesting. The desire of those in power to also bring the Internet under their control was obvious however the Ukrainian Internet community thwarted such plans.
9. The practice of classifying as secret and limiting access to official information became ever more widespread, with the justification given that this was safeguarding the information security of the State (with this concept not being defined by any law). Progressive laws, regulating access to information, were being effectively nullified by subordinate legislative acts and unlawful practice epitomized by the widespread use of illegal stamps restricting access to information. In particular, there were the stamps with «Not to be published» (used by the President), «For official use only» («OU») and «Not to be printed» (used by the Cabinet of Ministers, ministries and other departments). Our observations suggest that the number of documents with these stamps rose sharply during the period of election campaigns and the referendum. The number of documents with the stamp «Not to be printed» in certain months reached 10% of the general number of documents. One can also not but notice that it was the very President of Ukraine who classified a much larger number of documents than the Cabinet of Ministers or any other department. These stamps of secrecy are not defined by any law, and the regulations for working with documents which have this stamp are either not defined by any legislative norm whatsoever, or, as in the case with «OU», effectively block access to documents with that stamp.
The range of information which could be classified a State secret also broadened significantly. A «Code of types of information which constitute a State secret» was first made public (in 1995), but then classified as secret. All of the above are flagrant violations of Ukrainian, as well as international, legislation. As for information on open access, departments were extremely reluctant to provide this. The response to formal requests for information was frequently a formulaic letter giving no answer, or there was often no response whatsoever. From 2000 to 2004 the situation with access to information about the activity of State executive bodies became a little better. In 2000 all State executive bodies opened their own web-sites, and access also appeared to drafts of laws. Following persistent demands from human rights organisations, the Security Service of Ukraine in March 2001 declassified the «Code of types of information which constitute a State secret». On the whole, access to information held by state bodies remained a serious problem. The amendments adopted on 11 May 2004 to the laws on information and on printed forms of the mass media significantly narrowed the scope of the rights to information and freedom of the mass media: one was now only allowed to work with information open under the rules of access. What is more, administrative liability was now foreseen if a journalist made information for official use only public. Yet what exactly information classified with the stamp «OU» was remained unclear. This effectively meant the introduction of censorship.
It should be mentioned that some of the human rights violations listed above are incompatible with the level of freedom characteristic of a post-totalitarian society, and were therefore the subject of particular attention from human rights organizations. The point is that many human rights violations are characteristic for countries during the transitional stage from totalitarianism to democracy, although they appear to differing degrees: police brutality, lack of openness of those in power, infringements of electoral rights, manipulation of public consciousness through the mass media, poverty of the elderly, etc. There are, however, non-typical violations, and these are serious and dangerous, in that they reflect the assault of those in power on the freedom of the people and threaten to restore totalitarianism. Such violations include political repression; combined with violence and / or being accused of various crimes; disappearances; the use of law enforcement bodies, in particular, the police or security services for political purposes; the imprisonment of journalists for carrying out their professional duties; poverty of people who are not unemployed; violations of minority rights, also with violence, etc. Unfortunately, only the last violation listed was not observed during the period being considered in Ukraine (aside from a few cases involving violence towards the Roma). As far as the rights of minorities were concerned, the situation on the whole was relatively favourable, as also with some other rights and freedoms – freedom of thought, conscience and religion, freedom of association, freedom of movement, the right to respect for family life, to equality of men and women. Furthermore, one could, perhaps, state that the rights of minorities were better observed here than in other post-totalitarian countries.
It is impossible not to notice that a policy of double standards continued to exist in the attitude to human rights. Yet, nonetheless, the presence of international obligations in the field of human rights stimulated changes in legislation and created a space for mutual cooperation between human rights organizations and the State. The participation of the latter in commenting on periodic reports about observance of UN Conventions (Ukraine is a signatory to 16 of the 25 conventions of the UN on human rights) had a significant effect on drawing public attention to the issues being considered there. Ukraine had become a member of the Council of Europe in November 1995, and had, since that time, become a party to a number of European conventions on human rights. Ukrainians now had the right to make appeals to the European Court of Human Rights in cases of violations of their civil and political rights, and were beginning to use these new opportunities. The number of appeals to the European Court steadily increased, as did the qualities of the appeals put forward, the result of which as of 1 August 2004 were 78 decisions declared admissible, with 22 judgments (as of 1 January 2005) on the merits in claims brought by individuals against Ukraine. This should significantly influence the process of changes to the legal system. In the future the number of rulings can be expected to rise significantly.
In our country the Ukrainian Constitution is considered to be one of the best in Europe. In our view, it is difficult to agree with this point of view. Ukraine is not yet ready for organic constitutionalism, and the second section of the constitution, devoted to rights and freedoms shows this clearly. Yes, the formulations of rights and freedoms are taken almost verbatim from the UN Conventions on human rights of 1966 and the European Convention on human rights and fundamental freedoms. However, in our opinion, the inclusion into the Constitution of social and economic rights, as well as other empty social guarantees, was a mistake of the authors of the Constitution. These rights cannot be fulfilled by the State and cannot be norms with legal force. Another fault is that the Constitution also contains a large number of limitations to civil and political rights. The years which have followed since it was passed have clearly shown that such limitations, as «the morals of the population», «defence of reputation», «in the interests of public order» are determined not by law, but by those actually in power. This is the typical presumption of a paternalistic state: State officials understand better than ordinary individuals what is ‘moral and what ‘immoral, what is for the good of society and what is not. General and special limitations introduced as supplements to the proclaimed law can render meaningless virtually all these rights and freedoms. The legal force, therefore, of these constitutional norms is highly dubious. One can cite as an example the fact that infringements of the right to peaceful assembly which is guaranteed by Article 39 of the Constitution became systemic as a result of the number of possible restrictions allowed for by the same Article being so loosely defined as to give considerable scope for abuse.
Moreover, the Constitution does not allow for petitions to the Constitutional Court from ordinary courts, not to mention those from individual citizens. Citizens may appeal to the Constitutional Court only with requests concerning the interpretation of constitutional norms, and only in cases where there are discrepancies between the ways different administrative bodies apply these norms. Of the thousands of appeals from individual citizens regarding the interpretation of constitutional norms received during the period in question, the Constitutional Court only considered a few. In other words, the constitutional system for defending human rights was not, in effect, working and the Constitutional Court merely served as an arbiter between different branches of State power. It is true that at first it seemed a much better arbiter than could have been expected, since it tried to be independent, despite pressure from the executive, however later its decisions were more disappointing.
In 2004 all of the above mentioned trends as far as human rights violations were concerned became even more pronounced, and became fully evident during the election campaign. This took place as a confrontation between the forces in power and the people, who had the strength and courage in the face of aggressive pressure to reject vote-rigging and assert their choice against those in power. Factors contributing to this victory were the appearance on the active public area of two generations who had not been crushed and crippled by an inferiority complex, and who had a modern world view, the growth of small and middle-scale business, the openness of the country, the numerous visits abroad of Ukrainian citizens, a developing public consciousness and readiness for changes, the growing strength of a civil society and, in particular, of the defence of rights. The youth movements of 2004 were unconsciously (and for a certain number of young people – consciously) human rights activists. They were, if one could put it that way, human rights activists on the offensive, as can be seen even at a semantic level in their banner: «You cant stop freedom!»
As Vaclav Havel said, the Presidential elections in Ukraine were the funeral toll for the remnants of Ukrainian post-communism. The bell which rang on the capitals Maidan Nezalezhnosti [Independence Square] heralded precisely its demise. The development of events as they unfolded through Kuchmas regime once again confirmed the old truth that a political regime, which violates human rights more and more flagrantly, is sooner or later doomed.
«Its all just around the corner. Hold tight ...»
(January - November 2005)
At the beginning of 2005 a fundamentally new situation had emerged in Ukraine. The people, in open confrontation with the regime had, through peaceful non-violent means, asserted their choice. At the same time it was clear that the democratically elected President, Viktor Yushchenko, and his team had inherited a heavy burden of systematic and mass-scale violations of human rights, an immoral system of social relations, a corrupt and out of control State apparatus, plundered State revenue, and a country split between white and blue and ‘orange regions. On the other hand, the publics expectations regarding swift reforms and an improvement in the standard of living were clearly unrealistic. Extraordinary steps were needed to achieve the anticipated breakthrough – the achievement of healthier social relations.
Back on 22 January the members of the All-Ukrainian Association of Human Rights Organizations “Ukrainian Helsinki Human Rights Union” congratulated the President upon his assumption of office and suggested a number of specific steps aimed at affirming and implementing human rights and fundamental freedoms. We proposed that a review be launched of the ‘constitutional reform; that a system allowing for individual constitutional petitions be introduced; that new draft laws for the Criminal Procedure and Penal Codes be drawn up; that new legislation on information technology be introduced; that legislative mechanisms be brought in which would finally make the judiciary independent and strong, that would create institutional mechanisms of public control, parliamentary and non-parliamentary; that would initiate a reform of local self-government; that a system of public service television and radio broadcasting be created. At the same time we understood that mere new laws would not work if the rotten semi-feudal social system remained intact, with only proximity to those in power guaranteeing privileges and benefits, and where as a result of fiscal pressure no one could work without stealing, making each person vulnerable against the full power of the State. Convinced that it was specifically morally degeneration that had become one of the main causes of the social crisis which had led to the Orange Revolution, we also spoke of vital steps aimed at restoration, at abolishing the immoral system of social relations which had become entrenched under Kuchmas regime, but which had originated in the communist era. We called for the immediate launching of an investigation into violations of human rights which had taken place in the place, especially those involving persecution of journalists, disappearances and political murders; repressions against individuals in connection with their political views or civic activity; the vote-rigging during the Presidential elections of 2004. We insisted that the results of such investigations be made public and that justice be restored as far as victims of such repression were concerned. The steps we proposed also including immediately opening access to illegally classified legal acts of the President of Ukraine, the Cabinet of Ministers of Ukraine, the Prosecutor General and other executive bodies which were concealed under the unlawful stamps “Not to be printed”, “Not to be published” and “For official use only” (OU); ensuring separation of business interests and the regime; putting an end to the shameful practice of mass surveillance, in particular, wiretapping and interception of other means of communication; beginning the process of restructuring and reforming the State apparatus, in particular, law enforcement bodies; creating mechanisms for real public control over the activity of Ukrainian law enforcement bodies and public monitoring of penal institutions. The plan we proposed for rooting out the communist legacy in society was given the name “dekuchmization”.
We are, with the deepest regret, forced to acknowledge that up to now this process of “dekuchmization” has not taken place. The Orange revolution has thus far not received a new impulse. We would note that the term revolution in fact is possible only where revolutionary changes have continued. Revolution, according to Hannah Arendt, involves the change in political elites, the appearance of new leaders and increase in the access of the people to power. Here, new leaders have not emerged, the elite has remained intact and access to power of the people will, on the contrary, decrease with the coming into force of the amendments to the Constitution on 1 January 2006. The Gongadze case remains open since neither those who ordered or who organized the journalists murder have been charged and brought to justice. There has still been no formal authentication of the Melnychenko tapes which could provide vital evidence in the cases of Gongadze and Yelyashkevych, as well as in many other cases which made the headlines under Kuchma. There have been no criminal investigations into the poisoning of Yushchenko, into the beating up of Yushchenko supporters by the ‘Berkut (special police unit) near the Central Election Commission (CEC) on the night of 23 October 2004, into the unauthorised breaking in to the server of the CEC and the irregularities during the vote count on 21 November, nor into the other serious accusations of vote-rigging during the elections. Repeated promises to bring such charges against several members of the CEC have not been kept. Those who have been charged and convicted have largely been people who carried out illegal orders, and not those who organized the mass-scale rigging, instigated violence or bribed votes. In the much-publicised Memorandum signed by Yushchenko, Yanukovych and Yekhanurov, an amnesty is spoken of for those who committed offences under Articles 157 and 158 of the Criminal Code. We would note that the amnesty may only be applied in relation to those who have already been convicted of or charged with committing the crimes. The vast majority of organizers of the machinations remain unpunished. Such impunity provides a carte blanche for future infringements of electoral rights and distortion of the peoples expression of their will, in particular, during the parliamentary elections in 2006.
All branches of power are guilty of infringements of the principles of the rule of law in favour instead of political expediency. Statutes of the Constitution have been violated on many occasions yet Ukrainian politicians seem to find nothing reprehensible in this. Political life has become much more transparent, and specifically this openness has revealed the naivety and lack of professionalism of the Ukrainian political stratum. In fact, the transparency is extremely limited: the practice has remained intact of using the illegal stamps limiting access to information – “Not to be printed” and “Not to be published” which previously served to conceal behind-the-scenes political deals, corruption and perks for high State officials. The mass media have reported that it was precisely by means of such stamps that the salaries of ministers, the President, other high-ranking officials and State Deputies (MPs) were substantially increased. What can this be called but an example of Kuchmism and a vestige of Soviet thinking? The Prosecutors Office continues to neither publish its normative rulings nor register them with the Ministry of Justice of Ukraine. The fact that the promises to make open existing normative legal acts bearing these illegal stamps have proved empty is deeply disappointing. Such acts from Kuchmas regime could tell us a great deal about corruption in the higher echelons of power. This demonstrates that fighting corruption has not become a priority for the ‘Orange regime. There has also been no success in separating politics and business. On the contrary, mutual accusations of corruption split the once united team and led to a political crisis, a loss of confidence among voters and unclear prospects for the future.
Over the last ten months one could often see the open disregard of the executive branch of power for the right to private ownership which only exacerbated the distrust in the State both on the part of Ukrainians, and from the international community. One can only regret the manifestly inadequate and illegal statements issued by high-ranking State figures about returning property into State hands, without the appropriate court rulings having come into force, and still more the making public of lists of enterprises due for re-privatisation, which ran counter to the presumption of innocence.
There have been even worse infringements of freedom of assembly than in 2004. Flagrant violations have been perpetrated by the authorities in the capital, Kyiv. Raids on the tent city, administrative detentions of civic activists were not confined only to chronicle accounts of the illegal actions of the old regime, but took place in Kyiv in May 2005. One could provide many more such regrettable examples.
The picture painted here may appear somewhat gloomy. However an important factor is the absence of the previous pressure of the regime on society. It has become much easier ‘to breathe. The social atmosphere has changed significantly: very many people have lost their fear of the authorities. There has after all been a revolution – in the minds of many Ukrainians. Tens of thousands of people are prepared to defend their rights with the number of complaints about the illegal activities or omissions of State executive bodies and bodies of local self-administration having risen sharply. The latter, for their part, are attempting to develop channels for working with the public and taking their demands into account. Moreover, a comparison of the situation with human rights in 2005 with that under Kuchma shows significant progress. We can demonstrate this by providing an analysis of the development in 2005 of those trends considered above and which reflected the ever worsening violations of human rights and fundamental freedoms during the 10-year period of Kuchmas regime.
1. The Administrative pressure from the State which had significantly limited the freedom of the individual has eased. If previously only business which supported the regime had a chance of existing, now such close ties are not required. At the same time the fiscal policy of the State has not changed. The tax police, as one of the main violators of human rights and the symbol of political persecution in the past, should have ceased to exist, as was promised by many high-ranking officials, yet they continue to carry out a wide range of activities, including investigative operations which often lead to the unwarranted interference in peoples private life and limit other freedoms in the country. In the main, we still have the old State apparatus which became corrupt and out of control under Kuchma and which is accustomed to working mainly to rules of play involving corruption. The risk therefore that this trend will increase remains. The main tasks here are the reduction of the shadow economy and a real fight against corruption. It is important that the regime understands these problems and the need to resolve them, which the Presidential Decree No. 1615/2005 issued on 18 November would seem to indicate that it does.
2. Poverty and social inequality is no longer on the increase Fighting poverty has become one of the main priorities of the State. For the first time the minimum pension is on the same level as the minimum cost of living for those not working, with this increase being especially felt in rural areas. Social security payments have also risen. It is a shame that the rise in prices as a result of largely artificially induced inflation has partially eaten away at this increase. The position of a significant part of the population remains in this sense unstable, all the more so since they are threatened with substantial rises in rent and communal charges being planned by the local authorities. These plans should take into consideration and not overtake the level of income of the majority of the population.
3. The crushing of political opponents and use of law enforcement bodies as weapons in political battle have ceased, it is to be hoped for good. The cries of ‘political persecution which are heard from those formerly holding the reigns of power are pure demagogy. Victims of political repression do not speak on central television channels, nor do they create new parties and start their own newspapers. On the contrary, real political competition has emerged where political forces are no longer frightened that they will be crushed by the full weight of the State apparatus.
4. The brutality of criminal and legal policy remains a serious problem. There have still been no initiatives for the systematic reform of law enforcement bodies. Staff changes have not been able to democratise these given the lack of changes in function and powers of the Ministry of Internal Affairs, Security Service of Ukraine (SSU) and the Prosecutors office. Unfortunately in the majority of cases such ‘shake-ups have led only to slight rotations of staff, in particular at the local level. This is demonstrated by the cases where the new regime has appointed to responsible positions individuals who took part throughout 2004 in persecution of representatives of the opposition. The Committee of the Verkhovna Rada on issues of legislative backup for the law enforcement bodies continues to stubbornly ‘push a draft of a Criminal Procedure Code drawn up by the government and built around a base model of Soviet inquisition-style criminal legal proceedings, despite the fact that the draft has been severely criticized by the human rights organizations and received a negative evaluation from the Council of Europe. Detention without court sanctions which according to the Constitution should be used in exceptional circumstances is widespread. In fact it is detention with a court warrant that is rather the exception. Law enforcement bodies still widely apply remand in custody as preventive measure. Human rights organizations continue to receive complaints of torture and cruel treatment during the criminal inquiry stage (before charges have been laid) and pre-trial investigation. Effective measures for countering the use of torture by the police have still to be introduced. Complaints about the actions of law enforcement bodies are as a rule given cursory review or in a biased fashion. It is a telling sign that the largest numbers of complaints from individuals reaching the Ukrainian Ministry of Internal Affairs are related to actions of bodies of the MIA and significantly outweigh the number of complaints about crimes. There have been virtually no improvements in the penal system, prosecutors office and SSU.
It should be noted that the MIA has become more open and cooperates more with human rights organizations. Major joint studies have been carried out into violence committed by individuals in the MIA, in particular, the use of torture. Representatives of human rights organizations have been invited to joint inspections of district police units together with lecturers of institutes of the MIA system and officers of the Department for Internal Security of the MIA. This experiment, launched at the beginning of 2005 in three regions – Kharkiv, Sumy and Poltava regions –proved extremely valuable and was extended to cover the whole country.
5. The independence and proper functioning of the court system and respect for the rule of law as a whole also remains a serious problem. The number of incidents involving direct pressure on the courts is much lower now than during the Kuchma regime, however there is a lack of understanding of the importance of an independent judiciary, and financing for the courts remains inadequate. Although the money allocated has increased to 0.27% of GNP in comparison with 0.2% in 2004, this is sufficient to cover a mere 42 percent of actual needs. One can only welcome the decision to triple judges salaries in the future, but it is vital to properly finance other court needs as well, and for this to limit the source of such financing to State revenue alone, and abolish financing from local budgets and so called “sponsors”. The involvement of sponsors in financing the courts, initiated by former Prime Minister, Yulia Tymoshenko, vividly demonstrates the lack of conceptual understanding of the mechanisms by which the judiciary functions and of respect for the court as an independent and fully-fledged branch of power. Financing of the courts, just as under Kuchmas regime, is so entirely under the control of the executive that the principle of the division of powers is seriously violated.
An unquestionably positive step is the entering into force on 1 September of the Civil Procedure Code and the Code of Administrative Justice. The next step will be the creation of administrative courts. The intention to gradually liquidate military courts is also to be welcomed. However in general the court reform is being stalled due to the lack of clarity as to the status of the Prosecutors office. What is more, the amendments to the Constitution, passed on 8 December 2004, return to the offices of the Prosecutor the old Soviet general surveillance functions which runs totally counter to the creation of a strong and independent judiciary. This is a massive step backwards as far as reforming the Prosecutors office and bringing it into line with European standards is concerned, as well as being a breach of Ukraines commitments made on joining the Council of Europe back in 1995.
In general everything related to the ‘constitutional reform provides a graphic example of total disrespect for the Constitution and for the principle of the rule of law. The procedure for introducing changes to the Constitution has been infringed on many occasions. It would appear that none of our Ukrainian politicians is bothered by the fact that the ‘reform creates an illogical competition between the top State posts of President and Prime Minister within the framework of one – executive – branch of power. It also effectively shatters the integral unity of Ukraines foreign and domestic policy, encroaches upon the principle of joint responsibility of the Cabinet of Ministers, and makes primitive nonsense of the principle of division of power. The ‘reform introduces principles of the worst political collectivism, transforms State Deputies of the Verkhovna Rada into voting machines, entirely dependent on the will of party bosses and leaders of factions, clearly increases the risk of confrontation between parliament and President and radically increases the direct organizational dependence of parliament on the will of the President. Lacking the will to raise the level of their own political culture to the demands at least of the current Constitution, the present political elite are stubbornly attempting to lower the level of constitutional regulation to their confused and short-sighted pseudo-democratic concepts, yet again demonstrating a preference for short-term political expediency over respect for the rule of law.
6. Surveillance by State enforcement bodies over citizens has in general been on a smaller scale, yet it still remains substantial. Whereas in 2002 40 000 sanctions for intercepting information from communication channels were issued, in the first 9 months of this year the figure was around 11 000. These unofficial statistics were confirmed on 8 October by the then Prosecutor General of Ukraine, Sviatoslav Piskun in an interview given to the newspaper ‘Komsomolska Pravda v Ukraini [‘Komsomol Truth in Ukraine]. He added that the material received had only been used in 40 cases, while in other countries the number of warrants issued is much smaller. For example, in the USA the figure is four times smaller. Furthermore, there have been numerous statements made by State figures suggesting that they have been under surveillance and that their conversations have been bugged. It is not known whether such tapping was carried out with a court sanction. It should be mentioned that this issue has been a constant focus of attention of the President who has on many occasions stressed the inadmissibility of unlawful surveillance, and who signed Decree No. 1556 on 7 November concerning measures aimed at preventing this. However, in our view, the enforcement bodies are not in a hurry to support the President. Quite on the contrary, there have been no other initiatives which would make the activities of law enforcement bodies accountable to the public, including in issues of control over the exchange of information. The SSU is still continuing to introduce a system for monitoring telecommunications through several Internet providers. The Order of the State Committee for Communications No. 122 which introduces control over the use of the Internet remains in force as a result of the will of the SSU to hold onto this form of maintaining control over society, despite the fact that the Ministry of Justice in a letter dated 13.10.2005 instructed the Ministry of Transport and Communications to revoke the Order within 5 days. The SSU is adamantly resisting the adopting of draft Law No. 4042-1 “On interception of telecommunications” which contains guarantees against abuse. Together with other enforcement agencies, it introduced for the new version of the “List of items of information which constitute a State secret” of 12.08.05 a point about classifying statistical data about investigative operation, counter-intelligence and intelligence activities. This point will mean that there is no possibility whatsoever of gaining information as to the number of warrants issued for interception of information from channels of communication. A solution can be found in the adoption by parliament of draft Law No. 4042-1 since its implementation is intended to resolve the problem of abuse in this sphere.
7. The right of the individual to protection of personal data remains under threat. The President with his Decree of 10 March No. 457/2005 cancelled Decree No. 500 of 30 April 2004 on the introduction by the Ministry of Internal Affairs of a Single Register of Individuals on the basis of a single State automated passport system (SSAPS). In addition, there had been a lot of information about the involvement in the past in preparing these cards of dubious business outfits as a result of which a huge database of personal data had ended up in private hands. Nonetheless judging from information in the press, the MIA has completed without any prior arrangements being made a plan for SSAPS on the basis of a single multi-purpose individual identification code (with the tax identification code used as basis for this code). Recently Yury Lutsenko, Ukrainian Minister of Internal Affairs, announced the creation of citizens cards with a single number, stating in particular the following: “We have placed a package of documents with the Cabinet of Ministers .. We propose making a card for citizens of Ukraine in the form of a plastic card with an inserted electronic chip which will be strictly protected. The chip will hold the number of the card which will be the single card used both in the Tax and in the Pension Funds. Single …. However it is not a citizens number …, a the cards … so that believers dont feel concerned … The chip will contain all necessary information about the individual, and in addition it will be possible to add information as to whether the person has a drivers licence”. The introduction of this passport according to the Minister is being deferred until after the elections in 2006. However the issue of foreign passports in the form of a plastic card with a single number has already been introduced. No basic law on the protection of personal data has yet been passed, nor any law on the creation of a Single Register. Obviously plastic cards are convenient, but they must be introduced in keeping with legal procedure and should in no way use a single multi-purpose identification code. In our opinion, basic laws should first be passed and only then should individual passes be introduced with observance of the right to privacy.
8. Cases of infringements of freedom of expression have become much less frequent. In all sectors of the media there is pluralism of opinions, the majority of national television channels and radio stations are balanced in their presentation of information, although some elements of manipulation of information do remain We are not aware of any cases of pressure being placed on journalists by the central authorities, and the State mass media are gradually freeing themselves of their traditional exclusively positive and biased attitude to the regime. It should be noted, however, that there are as yet no guarantees providing for the consolidation and development of these positive changes. We would also mention that the local authorities in some regions continue to exert pressure on the mass media. Regrettably no clear concept for creating public service television and radio broadcasting has yet been developed except for the basic decision to create a system of public broadcasting on the basis of National TV Channel One (UT-1).
9. The unwarranted classifying as secret or restriction of access to official information has to a large extent been retained. The promises to ensure openness of information, transparency and accountability of the regime to society made on Maidan Nezalezhnosti [Independence Square] during the Orange Revolution have largely not been kept. It is difficult to assess progress in this area given the lack of openness and desire to limit access to any information about their activities in the State apparatus beginning back in Soviet times. One can cite the latest examples. On 17 November the Verkhovna Rada accepted with a majority of 310 votes in favour (and none against) as a basis the draft Law „On the Foreign Intelligence Service of Ukraine”, the text of which is not available in the computerised legal systems, and one of the articles of which has the classification stamp “secret”. The presence of secret articles contradicts the very essence of laws as open public normative legal acts, and is absolutely inadmissible. However not one of the Deputies thought to protest against such a flagrant violation. We also consider the inclusion in the new List of items that constitute a State secret of such information as the “moral and psychological state of the personnel”, introduced by General Headquarters and the State Border Guard (Points 1.2.1 and 4.6.4) to be unjustified. Over 10 months there have been 42 Presidential Decrees with the stamp “Not to be published”, of which 38 were issued before 1 April. Then came a public promise to no longer use the stamp and yet four more Decrees have since appeared using it – Numbers 663, 815, 1203, 1466, from 18 April, 18 May, 23 August, 19 October, respectively. The Cabinet of Ministers over this period has issued 13 Resolutions and Directives with the stamp “Not to be printed” and 3 with the stamp “For official use only” (OU). They have also been used by other ministries and departments. Most regrettably, therefore, the practice of using illegal stamps has remained intact despite the promises made to put an end to it, although the scale of its use has decreased since the Kuchma era. The instruction given by the President to the Ministry of Justice to prepare draft laws on access to information and on the openness as regards information of the regime which were to have resolved the issues of openness and transparency of the regime at a legislative level is being carried out extremely slowly.
The above analysis suggests that on the whole the situation with regard to human rights has in 2005 improved, however this improvement cannot be considered firmly entrenched. Obviously it is not possible in the space of 10 months to eradicate corruption, to successfully reduce the scale of the shadow economy and to change the way of thinking of law enforcement officers and of the State apparatus as a whole. However the political will is needed as well as persistent efforts aimed at improving the situation with human rights. Moreover, in our opinion, we still have the opportunity to make a swift start to effective reforms in all fields of life. Of particular importance here is the condition that the Constitution and the principle of the rule of law are observed, in particular the fulfilment of all procedural requirements. Only on this condition will changes for the better as regards human regards become irreversible.
At the same time we feel it our duty to warn about the chief factors jeopardizing human rights at the present time.
1. It is likely that the implementation of the ‘constitutional reform from 1 January 2006 will have devastating consequences for the future of our country. The ‘reform presents a real danger for State independence and the sovereignty of the people. After its introduction the level of corporatism in the political system of Ukraine, which is already considerable, will rise sharply. The influence of self-seeking interesting of powerful financial and industrial groups on parliament will intensify and will take on a permanent and systemic character. The ‘political reform, which emasculates the constitutional powers of the President ‘in mid-flight is undoubtedly a violation of the principle of his legitimization through elections. We are yet again forced to emphasise that the ‘package vote on introducing amendments to the Constitution is absolutely inadmissible since such a method of expression of will is a classic example of voting “under certain conditions”. It would seem that, besides the Ukrainian court, this is understood by any even moderately professional constitutional or Supreme Court in the world. Voting for a document of strategic significance, the Deputies should have been guided by purely constitutional and long-term considerations, rather than by tactical factors arising solely from the specific circumstances of December 2004. A ‘package vote is not foreseen in current legislation or even in Section XIII of the Constitution of Ukraine, nor does it meet the requirements of Article 19 of the current Constitution which prohibits State executive bodies, and therefore the Ukrainian parliament from attempting a free modification of key judicial procedures separately enshrined and separately protected by special guarantees at the highest level! We are firmly convinced that even now the Ukrainian political elite must be able to understand what kind of hybrid monster it is about to give life to and to put a stop to it.
2. The lack of openness of information, transparency and accountability of the regime to society, the unwarranted classifying of information and limitation of freedom of exchange of information must be viewed as among the most dangerous for the future of the country in comparison with other violations of human rights. The issue is not even only that this creates the right conditions for the spread of corruption. The information sphere is the main field on which all political, administrative, economic and quite simply any other decisions in the fields of human activity are based. The more information is used in taking these decisions, the better motivated and more effective they will be. The most important political decisions are usually consolidated at the legal level and enshrined in various normative acts. In this way, we have a three-tier system for decision-making: information, politics, legislation. One can use the metaphor of a tree: roots, trunk and crown. The more developed the root system, the stronger the tree. And when at the legislative (third) level acts are passed which prohibit or limit access of the participants in controversial political debate (the second level) to information (to the first level), then the quality of the political decisions will inevitably deteriorate. The unnatural situation arises where the crown does not let its own roots nourish the tree. This happens particularly often in cases where there are attempts by the State executive or even parliamentary institutions to limit and control the information flow. This is usually done with the best intentions, yet societies thus blighted by isolationism end up in stagnation, their intellectual elite emigrating and their economic complex turning into a supply of raw materials for their more open and therefore more dynamic neighbours. It is vital, therefore, to reassess present priorities in information policy and to strengthen the openness of information at the legislative level.
3. The lack of respect for the justice system, for mechanisms of support for an independent judiciary and its consolidation as a whole place in question the success of the judicial reform, and the transformation of the judicial system into a strong and independent branch of power, this being the main prerequisite for the observance of human rights and fundamental freedoms. The chief stalling factors are the lack of clarity as to the status of the Prosecutors office, the lack of real access to the justice system for the overwhelming majority of the population of the country, the lax attitude with regarding to executing court rulings, and the inadequate financing of the courts. It is important to chance the constitutional status of the Prosecutors office, leaving it only the function of representing the State in court: support of the State prosecution in criminal cases and representing the State in civil matters. As soon as the Prosecutors office loses the functions of general surveillance and preliminary investigation, a systemic obstacle to court reform will be removed. In particular there will be the opportunity to prepare a modern draft of the Criminal Procedure Code which will comply with European standards of criminal proceedings. Without the creation of a State system for providing free legal aid, the right to a fair trial will remain an illusion for the majority of people in the country. The non-execution of court rulings undermines the authority of the legal system and must be stopped.
About the author:
Yevgeniy Zakharov (1952) – mathematician, Cand. Sci. (Technology).
Civic activity: participation in the dissident movement of the 1970s and 1980s;
1990-1994: Deputy of the Kharkiv City Council, Deputy Chairperson of the Commission on Restoring the rights of victims of repression (from 1990).
1989 -1992: Co-Chairperson of Kharkiv «Memorial».
Since 1994 he has been a member of the Board of International «Memorial».
Since 1992: Co-Chairperson of the Kharkiv Human Rights Protection Group, and since 2004 – Chairperson of the Board of the Ukrainian Helsinki Human Rights Union.
Employment: engineer–mathematician (1975-1995), Chief Editor of the Bulletin "Prava Ludyny v Ukraini" “Human Rights in Ukraine”(1993-1997) and since 1997 the executive director of the Kharkiv Human Rights Protection Group.
Journalist work: Correspondent for the human rights newspaper “Express-Khronika” (Moscow), 1987 – 1992; Chief Editor of the Bulletin "Prava Ludyny v Ukraini" (1993-1997), Chief Editor of the weekly “Prava Ludyny” (since 1993) and the quarterly «Svoboda vyslovlyuvan i pryvatnist” [“Freedom of expression and privacy”] (since 1999).
Publications: 11 scientific works on applied mathematics and design of electric machines (1976-1985), more than 200 works on human rights issues and civic society in Ukraine, Russia, Lithuania, Germany, France, the USA, Denmark, Norway and Poland (1987-2005).
 This famine was entirely man-made, with crops being forcibly removed under Stalins policy aimed at crushing opposition to collectivization. Estimates of the number who died of starvation range from 5 to 7 million, or higher. The very fact that the famine had taken place was officially denied throughout the Soviet era. (translators note)
 Major Melnichenko made public a cassette recording which clearly implicated President Kuchma in the disappearance (and murder) of the journalist Georgiy Gongadze. (translators note)
 These were directives from the State authorities instructing journalists what to cover and how, and which themes to avoid. (translators note)
 Here and hereafter in this text ‘constitutional reform refers specifically to the constitutional amendments passed in a ‘package vote also including crucial electoral law reforms on 8 December 2004. The amendments reduce the powers of the President and create a situation where some Ministers answer to the President, while others directly to the Prime Minister. They also make it possible to deprive State Deputies of their mandate if they oppose or leave their faction, and give greater power to the Prosecutors office. (translators note)
 Hannah Arendt (1906 – 1975) Political philosopher and author of “The Origins of Totalitarianism” and “On Revolution” (translators note)
 Oleksandr Yelyashkevych was a Member of the Verkhovna Rada from 1994 to 2002. He attempted to have the Melnychenko tapes, and the Gongadze case in general investigated. After an attempt on his life, he left the country, and was granted political asylum in the USA in 2002 (translators note)
 The 10-point “Memorandum of Understanding between the Authorities and the Opposition”, signed in late September 2005, just before the second vote in Parliament to have Yushchenkos choice of Prime Minister, Yekhanurov, accepted. (translators note)
 These Articles cover crimes involving preventing people exercising their electoral rights, vote rigging and machinations with vote counts. (translators note)
 The Decree bears the title: “On the primary tasks against corruption and the shadow economy” (translators note)
 It is the Orthodox Church under the Moscow Patriarchate which has been strongly opposed to the introduction of individual identification numbers (translators note)
 Ukrainians have two ‘passports – one is effectively the persons identity document which everybody must have, while people may or may not have a ‘foreign passport needed for travelling abroad. (translators note)