Kharkiv Human Rights Protection Group. ANNUAL REPORT 2008
2. Participation in a constitutional process
3. Prevention of torture and ill treatment
3.1. Analytical, lawmaking and lobbying activities
3.2. Development of a system of legal aid for victims of tortures,
as well as the methodology for strategic cases
3.3. Awareness-raising and educational activities
4. Improvement of the legislation and practice on access to information
5. Campaign against xenophobia and discrimination
6. History of dissident movement and political repressions
8. Financial information
List of the grants
In 2008 the Kharkiv Group for Human Rights Protection (hereinafter, the Kharkiv Group or KHPG) continued to work in three directions:
·legal enlightenment and popularisation of law-protecting ideas;
·analysis of the status of human rights in Ukraine;
·help to citizens whose rights were abused, public investigations of facts of violating human rights.
KHPG continued to fulfil functions of the Centre for the existing network, which connects regional right protecting organisations in all regions of Ukraine; these organisations work in several from the above-listed directions or specialise in one of them. KHPG gathered information on human right abuses, to lead analytical and law-educating activities. Facts of human right abuses and their primary analysis were described in the bulletin ‘Prava Ludyny’ (PL, twice a month, with a monthly edition in English). Our monthly ‘Prava Ludyny. Human Rights Education’ (HRE) included materials on teaching human rights to children and various social and professional groups.These editions distributed among NGOs and individuals which are interested in such themes as well as state bodies, mass media, libraries, etc.
The same channels were used for the distribution of law-educating literature, prepared and published in the Kharkiv Group separately or jointly with other organisations, various informative materials prepared by the Kharkiv Group jointly with other organisations (the monitoring of legislation and the comparison of the Ukrainian laws with international norms, the monitoring of publications in the Ukrainian press concerning human rights, etc.). Such materials we published in the form of books in 1000 copies. Furthermore, KHPG satisfied 358 petitions from different regions of Ukraine about sending information materials on human rights and distributed these materials among participants of the seminars.
The disseminating information about human rights violations, activities of the Group and members of the network was run through KHPG website www.khpg.orgincluded Ukrainian, Russian and English versions. Average number of visitors was approximately 800 per day.
Actively worked KHPG reception office for people whose rights were abused. Along with 2008 KHPG received 1982 written complaints about the violation of human rights by state bodies. We have finished 1208 cases and received positive results in 502 cases. In addition, we gave more than 2400 oral consultations.
One of the most important direction of KHPG activities was participation at the constitutional process and preparation of the own draft of the Constitution.
Second of the most important direction of KHPG activities was prevention of torture and ill treatment. It includes analytical, lawmaking and lobbying activities, awareness-raising and educational activities, as well as development of a system of legal aid for victims of tortures and the methodology for strategic cases.
In 2008 KHPG continued to develop law and practice concerning access to information. KHPG experts created a new draft of the freedom of information law and issued practice of using restricted stamp “For service use only”. KHPG also conducted a campaign against xenophobia and discrimination in Ukraine. In addition, we continued research of the history of dissident movement in Ukraine, preparation and publication of the books on this theme.
Total budget of the Group was 12796,630 UAH.
2. PARTICIPATION IN A CONSTITUTIONAL PROCESS
New Year is coincided with the beginning of the legal constitutional process in Ukraine. In 2008 KhPG’s expert continued to write and speak about necessity of adoption of a new Constitution in the TV- and radio programs, newspapers, on seminars and roundtables.
It should be noted that President of Ukraine signed the Edict on creation of a National Constitution Council (hereafter, NCC) for preparation of the draft of the Constitution on 27 December, 2007. It supposed that human rights NGOs will propose their candidates for the work in the NCC. In fact, many organizations wrote letters to the Secretariat of President with proposition to include their representatives to the NCC. There were 350 candidates from the political parties, NGOs, National Academy of Science, juridical institutes. KhPG proposed to include to the NCC KhPG’s experts Yevhen Zakharov and Vsevolod Rechitsky. On 18 February President Yushchenko signed the Edict with the list of 96 selected persons. There are 9 members of civic organizations, only two of which in our view can be considered unbiased – Valeriy Chaliy from the Razumkov Centre and Yevhen Zakharov from the Kharkiv Human Rights protection Group.Other LhPG’s expert, Vsevolod Rechitsky was included into the list of consultants of the NCC. We were deeply regretted. Yevhen Zakharov wrote article that was published in the most popular newspaper Weekly Mirror and other editions as well as WEB-sites. It is clear that constitutional process will be very difficult in connection with the many contradictions between political forces.
On 4 March representative of the Party of the Regions in the NCC, Oleksandr Lavrynovych, stated that the Party of the Regions was withdrawing from the National Constitutional Council. He said that this was because the working group created within the makeup of the Council had become reviewing the entire text of the Constitution. In commenting on the Party of the Regions’ decision to withdraw from the National Constitutional Council, Speaker of Parliament Arseny Yatsenyuk said that this indicated the impossibility already of adopting a Constitution within the Verkhovna Rada. He stressed that this was an extremely negative sign which showed a further exacerbation and destabilization of the situation. He added tat the participating of the key parliamentary factions in the Constitutional Council which is headed by the President was an indicated that amendments to the Constitution could be passed not only by the requisite 300 votes, but by 400 and more.
Nevertheless, constitutional process is continued. Our position is to take part at the constitutional process and to propose changing of the Constitution from the point of view of human rights and rule of law.KHRG experts Yevgeniy Zakharov and Vsevolod Rechitsky appeared on television programs and radio shows, wrote journal, newspaper and internet articles, and took part in seminars and cultural events in order to emphasize the importance of amending the Constitution and to communicate some of the ways in which the Constitution should be amended. At the same time, KhPG continued to work on its own separate project related to the constitutional process. Vsevolod Rechitsy, for instance, wrote a detailed conceptual paper, published in the May issue of the journal “Krytyka” (“Criticism”) under the title “Toward a strategy concerning the Development of the Ukrainian Constitution”. Rechitsky sent this concept paper to the Secretariat of the President. In the article, Rechitsky explained the structure and ideological underpinnings of the new Constitution from a human rights perspective. Additionally, KhPG experts prepared and sent members of the NCC and the National Commission for the Strengthening of Democracy and the Rule of Law suggestions concerning human rights amendments in the second section of the Constitution as well as suggestions concerning the addition of two new sections to the Constitution entitled “Civil Society” and “Ecological Safety.” These suggestions were arranged in a table with three columns encompassing the following information: articles in the current Constitution, amendments suggested by KhPG to the aforementioned articles and a brief explanation of the amendments. The table also included information related to the two new proposed articles.
Political infighting has had a negative effect on the constitutional process. The refusal of all political parties except the “Our Ukraine-People’s Self-Defense” bloc to participate in the work of the NCC has paralyzed the commission’s work. From March to the middle of April, 15 of the 97 members of the Commission prepared a concept paper (concerning amendments to the Constitution) which was supposed to have been discussed at the April 16 meeting of the Commission (the second meeting of the Commission). However, at the last minute, when members of the NCC had already gathered at the office of the Secretariat of the President, the meeting was cancelled because Speaker of the Parliament Arseniy Yatseniuk allegedly fell ill. Members of the NCC were given the text of the Constitution. Even a cursory analysis indicates the extent to which the Constitution is an undeveloped and contradictory document. For instance, the Constitution fails to clarify whether the Parliament is unicameral or bicameral and is ambiguous when it comes to the question of whether or not the President heads the executive branch. However, the concept paper actually preserved the two centers of power in the executive branch despite the fact that this is one of the underlying causes for political infighting.
The very same day that the meeting was cancelled, the Constitutional Court made a ruling about whether or not a new Constitution and new laws could be decided by a national referendum. The Court ruled that these questions could be decided by referendum, but that the Verkhovna Rada would have to decide the procedures for the referendum.
At the same time, several powerful parliamentary figures announced that the Verkhovna Rada, not the NCC, should prepare a new Constitution but that in order for this to occur, a parliamentary Constitutional commission had to be created. This announcement was met with sharp criticism from President Yuschenko, who insisted that only the NCC had to prepare the new Constitution. Additionally, leader of the Yuliya Tymoshenko Bloc (ByUT), Yuliya Tymoshenko, announced that in the middle of May ByUT would introduce their own constitutional project related to amendments and addition to the current Constitution. ByUT stated that the separate project would receive the support of more than 300 deputies (ByUT and PoR have 336 members in Parliament). ByUT’s project was published on several websites and received a great deal of critisim. Appendix 3 includes KHPG’s expert conclusions about the project, prepared by Vsevolod Rechitsky, which were published on KHPG’s website and published on several other websites. These conclusions definitively demonstrate the contradictory nature of ByUT’s project.
Shortly thereafter, PoR leader Victor Yanukovich announced that PoR, instead of supporting ByUT’s constitutional initiative, would launch it’s own project related to making amendments and additions to the Constitution. Yuliya Tymoshenko declined to have her party’s constitutional proposal be examined by Parliament.
Yevgeniy Zakharov commented on the Constitutional process in an article called “Who Will Write the New Constitution of Ukraine,” which was published in the April issue of the journal Criticism. This article, which was widely circulated and published on the internet.
In August KHPG expert Vsevolod Rechitsky has finished a draft of the new Constitution from a human rights perspective and sent it to the Secretariat of the President.
Political infighting has had a negative effect on the constitutional process. The refusal of all political parties except the “Our Ukraine-People’s Self-Defense” bloc to participate in the work of the NCC has paralyzed the commission’s work. Now each political force has own draft law but has not agreed to support the draft of opponents. Nonetheless it is necessity to change the Constitution because unsuccessful “political reform” of 8 December 2004 is one of permanent reasons of the political crisis. Probably, with this circumstance judgment by the Constitutional Court passed at the beginning of July is connected. The Constitutional Court declared unconstitutional the amendment from 4 August 2006 of the Law “On the Constitutional Court of Ukraine” which banned it from reviewing changes to the Constitution which had already come into force. Now Constitutional Court can consider question on correspondence of the “political reform” to the Constitution.
According to request of the Secretariat of President KhPG expert Vsevolod Rechitsky made a commented version of the draft of the new Constitution from a human rights perspective.
We intend to publish our commented draft of the Constitution. But officers of the Secretariat of President asked us to refuse from publication. They believed that political infighting cannot give opportunity to open plans of Secretariat concerning the draft of the Constitution. We said that publication is necessary for discussion on Constitution. Officers of the Secretariat did not agree. In result, we made a compromise. We agreed that KhPG would publish a conception of the constitutional draft and section of the draft devoted to human rights and fundamental freedoms. During December we compiled the book The Constitutional Process in Ukraine. We published this book in January 2009.
3. PREVENTION OF TORTURE AND ILL TREATMENT
3.1. Analytical, lawmaking and lobbying activities
The law experts were coordinated in analytical working group. The tasks have been allocated inside the group. The analytical group has been collecting analytical, legal and factual information related to the purposes of the torture prevention. The reports of international bodies, including judgments of the European Court of Human Rights, especially in regard to Ukraine, legislation related to the purposes of the work, bills pending in Parliament and other relevant regulations as well as decisions of the national courts have been studying.
The working group has been elaborating the draft Concept of State Policy on Preventing Torture and Inhuman or Degrading Treatment or Punishment. The first version of the draft Concept was completed in April 2008 (see http://khpg.org/en/index.php?id=1210438486). On 28 May 2008, the draft Concept on State Policy on Preventing Torture and Ill-Treatment and Fighting Impunity was presented before two Committees of the National Commission for the Strengthening of Democracy and the Rule of Law. The concept of the Concept was approved by the committees; however during discussion between members of the Committees some important comments and recommendations were expressed. The members of the Committees recommended expanding and working out in details the section devoted specific tasks of state agencies, adding description of problems and proposals in respect of places of detention others than prisons and pre-trial detention centres. They also expressed many comments on particular provisions of the draft.
Since then the Analytical Group has been involved in improvement of the structure and content of the Concept and incorporating of those comments and recommendations. In October the revised draft Concept was completed. KHPG published 200 copies of the draft and distributed it among scientists of different scientific and educational law institution, including 11 law educational institution of the Ministry of Interior (MI) system, for comments and propositions. Also the draft was distributed among experts of the MI Department on Monitoring of Human Rights and NGOs involved in the activities connected with monitoring and defence of the rights of prisoners and detainees.
On 4 November 2008 the revised draft Concept was presented again before two Committees of the National Commission for the Strengthening of Democracy and the Rule of Law. Despite technical comments and objections from the side of some members, the Committees decided to approve the draft and to include it in the schedule of the next meeting of all four Committees of the National Commission for final consideration.
In November the working group is incorporating the observations of the members of Committees. It also is preparing two events in this connection: round-table with the regional commissioners of the Minister of Interior and the top managers of the MIA Department on Monitoring of Human Rights and round-table with the lawyers involved in activities of public free defenders offices created in Kharkiv, Bila Tserkva and Khmelnitskiy. During these events some elements of the draft Concept will be discussed for further improvement of the text.
In the end of December the experts of analytical working group finalized the draft Concept of State Policy on Preventing Torture and Inhuman or Degrading Treatment or Punishment and draft new Code of Criminal Procedure for consideration of the Presidential National Commission for the Strengthening of Democracy and the Rule of Law (the National Commission).
The important part of the Analytical Group’s work is participating in working group of the National Commission on elaborating of a new draft of Code of Criminal Procedure. Provisions on police detention and prompt bring a detainee to a judge, rules of jail or bail hearing, rules of evidence and others have been created by the analytical group and included to the draft Code of Criminal Procedure. The draft Code has been assessed by national experts and those of Council of Europe. The experts, principally approving the draft Code, express important comments on many particular provisions. The work on incorporation was completed in September and the draft Code was scheduled for the consideration of the National Commission at meeting with the attendance of the President.
On 10 December 2008, the draft Concept and draft new Code of Criminal Procedure were presented before plenary meeting of the National Commission. The meeting was attended by the President of Ukraine. The National Commission approved both documents.
After decision of the National Commission the experts incorporated comments of the members of the National Commission and to date the draft Concept is in process of editorial revising before the President sign the Decree about its adoption. As the President declared at the meeting of 10 December 2008, he was ready to sign the Decree without any delay. We expect that the draft Concept will be adopted by the Presidential Decree in near future.
As to the draft new Code of Criminal Procedure, the National Commission decided to create working group which task is to finalize the draft during three month. After that the President is to lodge the draft to Parliament as urgent bill. Our expert also became the member of working group created by the National Commission for finalizing draft Code of Criminal Procedure.
The experts of Analytical Group have also been involved in work of Working Group at Ministry of Justice on reforming pre-trial detention on preparing of recommendations for the improvement in this field of legal system. The draft of recommendation has been completed in August 2008 and presented to Ministry of Justice for use in further legislative work.
The KHPG also have prepared several round-tables with representatives of NGOs, with lawyers of Public Defender Offices, with representatives of newly created Department on Monitoring of Human Rights at Ministry of Interior and with scientists and practitioners dealing with penitentiary system. The events are scheduled to November 2008 and aimed to secure wide discussion the content of the draft and creation and activities of the national preventing mechanisms.
3.2. Development of a system of legal aid for victims of tortures, as well as the methodology for strategic cases
The activity of the Fund for Professional Assistance to Victims of Torture, set up within the Campaign against Torture 2003-2006, has demonstrated its importance and value within the framework of the whole Campaign implementation. Since 2006 it has continued its work as a Legal Aid Centre. The Centre has also become a structure capable of bringing together the efforts of different NGOs, huma rights activists, victims and lawyers for effective and consistent legal actions, accumulation and exchange information, knowledge, experience and best practice in strategic litigation. Over five years it has raised number of serious legal issues before domestic and international authorities and has proven its ability to influence many aspects of legal policy.
In 2008 we have broaden the mandate of the Centre and included in it the following generalized positions:
- torture and other forms of ill-treatment in police and other places of detention;
- excessive use of force; - suspicious death whilst in detention; inhuman and degrading conditions of detention, including inadequate medical treatment;
- lack of effective investigation and other remedies in case of ill-treatment;
- extradition and deportation in context of HR violations;
- violation of various aspects of right to liberty;
- violation of right for respect of rights of detained persons to correspondence, including in context of Articles 6 and 34 of the European Convention;
- arbitrary disciplinary punishments of detained persons;
- right to counsel at different stage of criminal proceedings;
- violations of due procedure principle in criminal proceedings.
The legal officers provide consultations on particular cases, prepared applications and related documents for consideration of the Centre’s Board.
In 2008 the European Court delivered judgement inSoldatenko case supported by the Center. Mr Soldatenko has lived in Ukraine since 1999, when he arrived from Turkmenistan. In January 2007 he was arrested in response to request of Turkmen authorities about his extradition. He appealed to the European Court, and the latter invited the Government to stop extradition. He has been detained until May 2008 when the Khakhovskiy District Court released him on bail. On 23 October 2008 the Court delivered its judgement that, we think, significantly changed previous approaches of the Court. At least, it was the first Court’s judgement in extradition cases where the Court put de facto moratorium on extradition to Turkmenistan from the Contracting Parties of the Convention.
Also the judgement in Muravskaya case was delivered by the Court on 13 November 2008.
On 18 DecemberEuropean Court delivered judgement inKats and Others, Novik and Lutsenko cases supported by the Center. The latter case has high importance for national criminal justice. It concerns widespread domestic practice of use written statements instead of oral interrogation, and the Court found that such practice violated right to fair trial.
In total, in 2008 21 application to the European Court supported by the Center were communicated to the Government of Ukraine.
The Board approved providing legal aid to victims under 23 agreements in the following cases:
Tovsultanov case (appeal against disciplinary punishment).Mr Tovsultanov was one of victims of mass beating by special task force deployed at Izyaslav Establishment No. 31 on 22 January 2007. Immediately after the events, he was transfer to different prisons among other 40 prisoners. Then he and other 19 victims lodged his application to the European Court of Human Rights and complained against actions special task force to the national authorities. As a result of his position he was subjected to various reprisals from the side of prison’s administration, in particular, to disciplinary punishment.
Pritula case (poor conditions, cruelty of staff, lack of urgent medical care). Mr Pritula complained against poor conditions of his detention, refusal of the staff to provide him with adequate medical help and various facts of degrading treatment from the side of administration. Later Mr Pritula decided to withdraw his complaints without explanations.
Shestakov case (use of lethal force by police).In November 2007, Mr Shestakov, 19 years old, was lethally shouted by policeman during a conflict at the street and when Mr Shestakov was running away from the policeman. He died at the spot. The lawyer complained against the action of the policeman to the prosecutor’s office and the latter initially refuse to open investigation in action of the policeman. The prosecutor’s office decision was appealed and the investigation was eventually opened and now is pending.
Okhrimenko case (inappropriate medical care in prison).Mr Okhrimenko has been detained in Kharkiv SIZO No. 27 since April 2007 on suspicion in having committed crime. During detention his heath conditions deteriorated significantly and he was diagnosed with cancer. However, he did not receive appropriate medical care: the medical staff of the SIZO provided him with only narcotic medicine to mitigate the pane. He appealed to the European Court and the latter applied interim measures. In result Mr Okhrimenko was transferred to a civil hospital and, after successful surgical intrusion and therapy, his health condition improved and now his life is beyond danger. Further, the lawyer prepared the reply to the observation of the Government in European Court of Human Rights. Also new application is being prepared concerning new violations of Okhrimenko’s rights after he, in breach of interim measures indicated by the Court under Rule 39 of the Rules of the Court, was transferred from the hospital to SIZO.
Volosyuk case (violation of right for respect correspondence of prisoner).Mr Volosyuk complained that his correspondence with lawyers, state agencies, ombudsperson and European Court was subjected to constant monitoring and censorship by prison administration. He appealed to the European Court and now the case is at the stage of communication with the Government.
Ivanov case (charged in violation of prison rules).As Mr Tovsultanov, Mr Ivanov was one of victims of mass beating by special task force deployed at Izyaslav Prison No 31 in January 2007. After his transfer to different prison, he was also subjected to various reprisals from the side of prison’s administration, in particular, to various disciplinary punishments. These punishments cumulatively resulted in that that in 2008 he was charged in flagrant violation of prison rules. He consider his numerous disciplinary punishments and new charge as a reprisal for his position concerning complaining of mass beating. Now the lawyer of the Centre is involved in defence of Mr Ivanov.
Teslenko case (torture during investigation).In 2005, Mr Teslenko was tortured during investigation in order to extort from him confession. In result of the work of the lawyer of the Centre, criminal investigation against police officers involved was opened and now is pending. The lawyer also represents Mr Teslenko in proceedings concerning charge against him.
Polischuk case (poor conditions of detention, inappropriate medical care, unjustifiably long detention).The circumstances of this case are very similar to the Okhrimenko case. However, although in result of lawyer’s efforts Mr Polischuk was eventually released from the prison, he died soon after his release.
Danilyuk and Others caseconcerns mass beating of prisoners by special task unit of the Department of Penitentiary in Izyaslav Colony # 31 in January 2007. The evidence were gathered and the application was lodge to European Court of Human Rights.
Tolkunov caseinvolves the problem of criminal prosecution for so called “flagrant breach of regime” in penitentiary. We try to complain against the grounds of such prosecution and the procedure. The case is now pending before the court.
Savenko and Glushenko casesconcern unreasonable use of handcuffing and restraining shirt against the prisoner by the staff. The complaint was lodged to the prosecutor; however the latter refuse to open investigation. Moreover Savenko was subjected to pressure from the side of prison administration to force him to withdraw his complaint. Now the actions are being taken to quash the decision not to open investigation. These complaints (as others also) were received by the lawyer during regular visits to Temnovskaya Prison.
In Shmyglenko and Beksyak cases the lawyer is involved in the court proceedings with the aim to quash the decision of Khmelnitskiy prosecutor’s office not to open investigation concerning mass beating of prisoners by special task unit of the Department of Penitentiary.
InShachbazov case the lawyerwas involved in proceedings concerning deportation to Azerbaijan of the applicant who lived in Ukraine from his being child and has no ties with Azerbaijan.
In case of Kreydich, Dubovik, Dzhaniev and Kuznetsov the applications to the European Court were lodged concerning arbitrary detention of these persons after granting them status of refugees by the national authorities. Also the question of inadequacy of domestic remedies was raised in connection with unlawful deportation of Kuznetsov to Russia despite his refugee status.
Cases of Mr Savin, Mr Kulishand Mr Paschenko concern torture they were subjected during police detention and inadequate investigation in their complaint. The applications to the European Court were lodged.
Alexakhin case concerns domestic proceedings in his claim for damage caused by police officer who had been found guilt by criminal court of causing the applicant grave injuries. The court in its decision on damage claims addressed to the police authorities decided that the authorities are not responsible for damage caused by the officer who exceeded his power. The application to the European Court was amended to include this new development in the case.
Kosilov case involved the problem of use coerced confession during criminal proceedings.
In Nechiporuk case the third application to the European Court was lodge (the first was lodged in 2004, the second – in 2006) concerning use of coerced confession during criminal proceedings, violation of rights for legal representation and other violations of Article 6 of the Convention that resulted in conviction and sentencing to 15 years imprisonment.
Koktysh case concerns extradition to Belarus of the applicant who is at risk of death penalty and torture during investigation. The application communicated to the Government of Ukraine and extradition of the applicant is suspended under Rule 39 of the Rules of the Court.
The case concerning complaint of Kharkiv Human Rights Group against Temnovskaya Prison concerns refusal to secure access of KHPG lawyer to prisoners. The proceedings is important for the creation of system of regular visits and the implementation of Optional Protocol to the Convention against Torture.
Ushakov caseconcerns torturing of the applicant and his wife, and also abduction of the applicant by police from the prosecutor’s office premise and subsequent illegal detention in unknown and unregistered place of detention.
Stankevich case concerns poor conditions of detention in Simferopolskiy SIZO and inadequate medical treatment of TB that result in death of the detainees.
Teslenko caseis the case continuing from the previous years and concerns subjecting the applicant to torture and subsequent use of his confession in criminal proceeding. The application to the European Court was lodged.
Skrypnik caserequired representation of the applicant during criminal proceeding in the court against police officers who unlawfully applied force to the minor applicant.
The Center also support the preparation of the application to the Constitutional Court of Ukraine in Dubovik case concerning interpretation of the legislation on detention of refugees and on access to court for refugees detained. During the Center activities we could received evidence of contradictory case law which is the condition of admissibility in procedure before Constitutional Court.
The Center also supported preparation of adversarial papers for European Court in Kreydich case communicated to the Government. The case concerns extradition to Belarus which was suspended under Rule 39 of the Rules of the Court.
Naydyon caseinvolves representation before European Court of the applicant whose communication with the Court was impeded by prison administration.
Lutsenko and Shabelnikcases involve representation before European Court of the applicant in cases on violation of Article 6 of the Convention: right to remain silent, presumption of innocence, right to defence and many others.
Puzan caseconcerns extradition to Belarus. The extradition was suspended under Rule 39 of the Rules of the Court. Now the lawyer is involved in proceeding aimed on release the applicant from detention.
3.3. Awareness-raising and educational activities
In 2008 we have made some considerable changes in the format our training courses for lawyers. It became apparent during the Campaign 2003-2006 that one-day or even two-day training courses for lawyers could give only a brief review of the how one can apply the European Convention in national legal proceedings and the use of international mechanisms. We there believe that in order to create an efficient network of lawyers we need a longer-term training program. In 2008 we held five-day training sessions.
During June-July 2008 fifteen participants were selected from about 40 applications received. In August 2008 the participants received the first assignment which they had to prepare before training session.
From 10 to 14 September 2008 we conducted the first training session as a part of year training course for lawyers.
During training session the lectures were combined with intensive exercises intended to develop practical skills required for participation in international judicial proceedings and in domestic proceedings in strategic litigations. The training session was limited to Article 2, 3, 5 and 6 of the Convention. The specialists from the our Legal Aid Center, experienced lawyers and legal officers of the Registry of the European Court of Human Rights were involved as a trainers.
The mailing-list was created for distribution of assignments and information and for discussion among participants. Now the participants are working on the assignments distributed to him by mailing-list. In near future we plan to simulate proceeding before the European Court via Internet. We plan to create three groups of participant each of which will be provided with materials and task to prepare application to the European Court. Then, in turn, each of the groups will prepare observation by the Government on the application of other group.
One of the important tasks for the prevention of torture is publication and dissemination among professionals involved in criminal proceedings of comprehensive and detailed information on the decisions of the European Court of human rights.
These publications are necessitated in the connection with the evident lack of information about the European Court’s case-law, in particular, the insufficient number of verbatim publications of the decisions in Ukrainian or Russian.
Although translations of individual decisions have been published lately, such scanty information satisfies neither research requirements nor practical needs. The lawyers have extremely vague knowledge about the means available through the Convention and, as a result, they resort rarely to its provisions in their practices. The domestic courts, which are called to play a primary role in effective implementation of the Convention, demonstrate cautious attitude to the application of the Convention. One of the reasons for that is lack of full and accurate information about the whole system of the European Court jurisprudence. This publication can partly solve these problems.
In 2008 we published the digest covering all judgments on Article 5 of the European Convention, adopted before 1 January 2008.
The preparation of the digests included:
preliminary stage: selection of fragments of the judgments and dissenting or concurring opinions, translation of the selected fragments to Russian and Ukrainian, marking of fragments with relevant references;
main stage: developing structure of the publication, editing the text and checking terminology, systematic arrangement of the fragments, analysis and cross-referring the fragments, preparing explanatory notes;
final stage:making-up the publication, compiling the table of the cases, external review, final correcting and editing, publishing.
In order to implement the European Convention on Human Rights to the Ukrainian legal system KHPG continued to monitor consideration of the Ukrainian cases at the European Court of Human Rights; translate into Ukrainian the most interesting judgments concerning Ukraine, and disseminate these translations by various means. In 2008 KHPG has reviewed all 162 judgments (merits), adopted in 2006, and 173 judgments, adopted in 2007. We selected and translated 46 judgments of 2005 and 35 judgments of 2006. Than we prepared for publication, printed in 1000 copies and distributed the books “Selected judgements of the European Court of Human Rights concerning Ukraine – 2005” and “Selected judgements of the European Court of Human Rights concerning Ukraine – 2006”. KHPG placed also these judgements on site www.khpg.org.
4. IMPROVEMENT OF THE LEGISLATION AND PRACTICE ON ACCESS TO INFORMATION
Because of the unsatisfactory practice of access to information possessed by the law-enforcement agencies (regional departments of interior, prosecutors’ offices, and appeal courts), widespread use of “classified” (“confidential”) stamps undefined by law, it has been decided to prepare amendments to the legislation. Of two options – drafting a separate law on access to information and basic freedom of information law or radical changing of the current Information Law – the first option has been chosen. We accounted that other organisation, Legal and Political Reform Centre, prepared satisfied draft law on access to information earlier. V. Rechitskiy, KhPG expert, prepared a new version of the Information Law on the basis of the international standards and recommendations. A working group was created, which considered the bill four times, introducing amendments to it. The working group included members of NGOs, the Parliament’s Committee on Issues of Freedom of Speech and Information and Secretariat to the Parliament’s Ombudsperson. The bill also passed through international expertise – by the Article 19 organization (UK). As a result of its active promotion, the bill is included on the Parliament’s agenda for consideration.
On 26 October and 26 November 2008, KHPG held two meetings of the working group on freedom of expression devoted to discussion on the fourth and fifth versions of the draft and other questions. There were 25 and 40 participants respectively who represented NGOs, state bodies (the Parliamentary Committee on Freedom of Speech and Freedom of Information, Ombudsman’s office), newspapers.
We placed the final version of the draft to the our website and look for an opportunity to represent our draft to the Parliament for considering. The English version of the draft was placed to the KHPG website: http://www.khpg.org/en/index.php?id=1220951970
In addition to drafting new law KHPG, as in previous years, requested necessary information and very often received refusals, fob-offs, or quite simply heard nothing at all. Responses were sometimes not provided because the information requested was classified as on restricted access on the basis of subordinate normative legal acts with reference to Articles 30 and 37 of the Law “On information”.
With regard to secret information, the type of information should be included in the List of Items of Information constituting State Secrets. However there is no such list for information in the possession of the State which is stamped “For official use only” [DSK]. If there are lists of such information, they are not always made public. One thus has the paradoxical situation where we do not have access to official documents providing a list of items of information which are confidential, in other words, we can’t know what it is that we are not supposed to know.
For this reason in 2008 we decided to look into which central authorities have lists of information stamped “For official use only”. At the beginning of 2008 we sent information requests to the authorities as given on the official website of the Cabinet of Ministers (the Verkhovna Rada, the President’s Secretariat, the Cabinet of Ministers and 79 central executive bodies as well as 27 regional state administrations). The respondents were asked: “Is there a list of items of confidential information in the possession of the State which is stamped “For official use only”, or is there any other list of items of information (documents, etc) which are not to be provided or made public in response to information requests from individuals (including from journalists)?” In the event that such a list existed, the respondents were asked to provide a copy of the relevant act, or a written list of such items of information,
The information requests were drawn up in accordance with the Law “On information” and sent recorded delivery with notification to the sender. After long communication we received positive answers from 26 regional administration and 67 central state executive bodies. 13 state bodies refused to send list of items of confidential information in the possession of the State which is stamped “For official use only”, namely: Zaporizhzhia state regional administration; the Prosecutor General’s Office; the Ministry for Emergences; Ministry of Finance; Ministry of Fuel and Energy; the Central Department of the Civil Service; the National Space Agency; the State Protection Service; the State Department on Intellectual Property; the State Service for Special Communications and Protection of Information; the State Aviation Administration; the Ukrainian State Centre for Radio Frequencies and the State Committee for the Forestry Industry. They gave the following reasons:
1) the documents have the stamp “For official use only”;
2) the issue needs to be agreed with the SBU (State Aviation Administration);
3) the person seeking the information does not have sufficient legal grounds to receive these lists;
4) the person asking has not explained why she needs the information State Department for Maritime and River Transport).
We appealed to the administrative courts. In 2008 court proceeding started but not finished.
In addition, in 2008 we summarised results of research concerning practice access to information in a national, regional and local level. We prepared, published and distributed the book «Right on access to information: theory and practice».
5. CAMPAIGN AGAINST XENOPHOBIA AND DISCRIMINATION
In the few years there has been a disturbing rise in the number of xenophobic assaults or other forms of xenophobic and racist behaviour. The victims include immigrants from the Caucasus, Asia and Africa, the Roma, Crimean Tatars, Russians and Jews. These incidents have sometimes involved violence, bodily injury or even death. We have witnessed acts of vandalism against Ukrainian, Russian, Crimean Tatar and Jewish sacred places and symbols; and sometimes against those of other national minorities and ethnic groups.
We believe that the reaction of the authorities to these xenophobic incidents is not adequate and that special measures aimed at preventing such xenophobic behaviour need to be developed and implemented. These measures must take specific local and regional features into account. Both the authorities, and the public, need to adopt a much more active and uncompromising position with regard to those who incite enmity.
In order to ensure the maximum effectiveness of all measures adopted, we need to monitor cases of xenophobia and attempts to defend the victims of such behaviour. Publicizing information about such cases, and publicly condemning them, as well as using legal remedies to defend the victims, are crucial factors in any attempts to reduce xenophobia in Ukraine.
In connection with increasing in 2006-2007 the number of violence on racial and ethnic base KHPG developed the following activities during 2008. We hold monitoring hate speech in the Crimea, Halychyna, Kyiv and Kyiv region, and Slobozhanshchina (an area covering the Kharkiv, Poltava and Sumy regions) and monitoring xenophobic and racist behaviour in these regions and the reaction of the authorities. In addition, KHPG rendered legal defence to victims of xenophobia and discrimination on the basis of race or ethnic origin and analysed the actions of the law enforcement agencies against xenophobia and discrimination. We worked together with two partner organizations – the Committee on Monitoring Press Freedom in the Crimea (Simferopol) and the “Ї” Independent Cultural Magazine (Lviv), who carried out the monitoring in their regions.
The monitoring involved identifying “hate speech” in the press and on the Internet, as well as xenophobic and racist behaviour and the response of the authorities, in particular the law enforcement agencies to such cases. Each incident involving the publication of “hate speech” is thoroughly investigated, from the point of view of the conflict between freedom of expression and the prohibition of insults on a racial or ethnic basis, and where appropriate by approaching the victims or their families, as well as the authorities. After being verified, material was made public via the KHPG site, partners and the media.
If the victims of xenophobic actions or “hate speech” wish to seek satisfaction and compensations, we provided legal consultations, and where needed, legal representation. These included defamation suits or applications to the Prosecutor to initiate criminal investigations under Article 161 of the Criminal Code.
During the year statistical information was gathered about cases of xenophobia recorded by the authorities and the reaction of the latter, especially the law enforcement agencies to them. We gained this data through information requests to law enforcement agencies at national and regional level.
The fact that foreign nationals are not sure that complaints about unlawful actions against them will be thoroughly examined and recognized is linked with discriminatory attitudes towards them by law enforcement officers. There is, for example, the problem of ethnic profiling, when police officers check identification papers of foreigners and Ukrainian citizens with a non-Slavonic appearance. This is what a Kharkiv resident, Viacheslav Manukian, wrote in a statement to the Kharkiv Human Rights Protection Group:
I am compelled to turn to you over the fact that for a long time the Kharkiv police have been flagrantly violating my human and civil rights as set down in the Constitution, laws, as well as in international legal documents on human rights.
I am regularly stopped for no reason by police officers in city streets and particularly in the metro. Since there are no grounds, reasons or causes for systematically «checking my identity», I have every justification for assuming that this behaviour is linked to my ethnic origin and my appearance. Such checks occur every month, sometimes twice or even three times a month. They have not once ended in anything but a formal excuse that some measures were being carried out. In response to one of my complaints I was told directly in writing that I had been stopped because my characteristic appearance elicits the need in police officers to check the «legality of my being on Ukrainian territory and my citizenship». Despite my numerous complaints at this racist behaviour by the police, I continue to be stopped in the metro and on the street.
Such checks, based on nothing but racial prejudice and possibly on illegal orders and instructions are, as far as I have observed, inflicted specifically on people of «foreign appearance», although the Ukrainian nation includes people of all nationalities.
I would ask you to pay attention to the practice of ethnic profiling – unlawful checking of documents and stopping people based solely on ethnic grounds.
Mr Manukian filed a civil law suit against the law enforcement agencies in the Kharkiv District Administrative Court. At first instance level the claim was rejected. The appeal proceedings are continuing.
Foreign nationals have also contacted KHPG by telephone complaining that the police regularly demand money, «gifts», etc, from them. These complaints have been anonymous since the victims refused to make the necessary official statements for fear of reprisals. KHPG carried out an anonymous questionnaire among foreign students studying in Kharkiv, the results of which were staggering. Out of 68 people asked, only two had never been stopped by police officers, and 49 had been detained even when they had documents with them. 34 foreign students said that they had only freed themselves from the «close attention» of the police officers by paying money (different amounts were named, from 20 UAH to 60 dollars), buying beer or coffer, «giving them» certain items, etc. That means that 50% of the respondents attested to police officers having behaved in a corrupt fashion towards them. These are shocking figures which the law enforcement agencies should certainly think about and take appropriate measures to stop such shameful practice.
It is typical that the vast majority of those surveyed had not even approached any authorities for help since they believed that they wouldn’t get any. And they have all grounds for thinking so since in the case of the 20 students who did complain about being unlawfully detained to their embassy, to the dean of their institute or to the police indeed received no assistance.
Results of the monitoring regular publicised via the KHPG website and those of our partners.
In 2009 we will hold public hearings with presentation of the result of monitoring in Kyiv, Kharkiv, Lviv and Simferopol. In addition we will prepare, publish and distribute a book with the results of the monitoring.
We should mention that these activities is part of a broader programme which involves the analysis of Ukrainian legislation regarding protection from discrimination and xenophobia.
6. HISTORY OF DISSIDENT MOVEMENT AND POLITICAL REPRESSIONS
One of the most KHPG activities in this direction in 2008 was research on legal classification if the Holodomor 1932-1933 in Ukraine and Kuban. We prepared analytical report in the view of brochure «Can Holodomor 1932-1933 in Ukraine and Kuban be classified as genocide?» in Ukrainian, Russian and English.
KhPG published additionally 400 copies of the book «Who is who in dissent of the Central and Eastern Europe and former USSR. Ukraine» (Ukrainian part of the Dictionary in two parts, 1020 pages). It includes a short description of the dissident movement in Ukraine (approximately 30,000 characters), glossary (37 short articles on basic concepts of the dissident movement in Ukraine, approximately 160,000 characters), 208 biographies (approximately 1050,000 characters), a photo of each person and related bibliography. In 2008 all materials have been translated into Ukrainian for the planned edition of the dictionary in Ukrainian and into English. KHPG placed all materials in Ukrainian and English to the website http://archive.khpg.org. In addition, we continued to take audio-interviews from the former dissidents included into the Ukrainian part of the dictionary, as well as from the people from their closest environment. We also transcribed the interviews, agreed with authots and placed it to website. During 2008 we transcribed 64 cassettes, 90 minutes each. These are interviews from 38 people. Furthermore, we copy and arrange related materials for our archive. These interviews are base for preparation biographies references for the third part of the Ukrainian Dictionary. We plan to prepare and publish third part in 2009-2010.
We prepared and published the book by outstanding dissident Yevhen Grytsiak «Norilsk‘s rising» on events of 1953 in Norilsk concentration camp in Ukrainian and Russian.
KHPG has been preparing the list of Ukrainian political convicts of the after-Stalin period since 1989. By the present time it counts about 3,000 names. The publication of the book is planned on the second quarter of 2009. In addition, another group of memoirs and documents was prepared by the Kharkiv Group on the basis of the Group’s archive and other sources. These publications are devoted to the resistance to the totalitarian regime in the USSR. We plan the following publications:
·the book devoted to two outstanding Ukrainian linguists V. V. Gantsov and E. Ya. Kurilo, victims of the Stalin terror; the main materials are gathered; Yuri Sherekha’s article on the importance of their scientific results is being translated from English to Ukrainian;
·the book of Nelya Nemirinskaia «Advocate’s notes» will include materials on 10 political court processes where Mrs. Nemirinskaia represented interested of victims of political persecution;
·the archive investigation files by two criminal cases Heinrikh Altuiain in 1969 and 1980 in 10 volumes; we taped all 10 volumes, checked text and produced lay-outs of first 4 volumes;
·the book by Inna Melnitskaya ‘The Ukrainian train’, the dilogy on the violent transfer of the youth to Germany during WW2 and on the extermination of Jews by fascists in Kharkiv.
According to our plans these books will be published in 2009-2010.
The materials obtained in the framework of the programme were printed in the KHPG periodic editions and other media, including all-Ukrainian newspapers, such as «Dzerkalo tyzhnia”, «Den’», «Ukraina moloda», «Fakty» and others.
Developing Ukrainian human rights network and executing functions of the resource centre, KHPG continued preparation, publication and distribution of different editions separately or jointly with other partners. Regular contributors of the network sent information on violation of human rights and analytic materials to Kharkiv, where this information was placed on our web-site http://www.khpg.org after which the following bulletins was compiled and published electronically or in hard copies: twice a month the bulletin «Prava Ludyny» with a monthly English review and the monthly «Human Rights Education». We published information on abuses and a primary analysis in the bulletin «Prava Ludyny». More profound analytic materials, results of the monitoring and translations would be published in the separate editions.
Bulletins were sent according to mailing list to regional human rights protecting and other related NGOs, to central and local state bodies, to press services of political parties and movements, to law schools, to newspapers and other mass media as well as to lawyers and teachers of secondary schools. In addition, they were placed on the KHPG’s web-site. The copies were sent by e-mail to the readers having electronic addresses and by snail-mail to others. KHPG also distributed among the users of the network literature on human rights, prepared and printed by KHPG separately or jointly with other organisations. There were 358 written requests about sending such materials. We satisfied all requests.
In 2008 we prepared, printed and distributed in 1000 copies the following books:
«Selected judgements of the European Court of Human Rights concerning Ukraine – 2005», A5, 536 pages;
«Selected judgements of the European Court of Human Rights concerning Ukraine – 2006», A5, 496 pages;
«Systematized Digest of Judgments of the European Court on Article 5 of the Convention», А5, 320 p.;
«Right to health care in Ukraine – 2007», A5, 192 pages.
Yevhen Grytsiak «Norilsk‘s rising», A5, 104 pages, in Ukrainian and Russian;
«Can Holodomor 1932-1933 in Ukraine and Kuban be classified as genocide?», A5, 52 pages, in Ukrainian, in Russian, in English.
In addition, we published in 400 copies the second edition of the book «Who is who in dissent of the Central and Eastern Europe and former USSR. Ukraine» (two parts, 1020 pages).
On 1 January 2008 KHPG had 149,607 UAH.
During 2008 KHPG received eight grants indicated in the list below. Total amount is 240,986 USD and 33,180 Euro.
Total expenditures for 2008 were 12796,630 UAH.
On 31 December 2008 balance was 25,000 USD and 185,456 UAH.
List of the grants
The name o the project: Constitutional defence of human rights and improvement of constitutionals mechanisms of court and parliament oversight.
The period of financing:04 December 2007– 31 December 2008
The project costs: $49,995
The donor of the project: International «Renaissance» Foundation (Ukraine, Kyiv)
The name of the project:Informing and analyzing the human rights situation and creation of a draft of the Constitution of Ukraine
The period of financing:1 February 2008– 31 January 2009
The project costs: $46,000
The donor of the project: National Endowment for Democracy (USA, Washington D.C.)
The name o the project: Development of public reception offices of human rights organizations
The period of financing:1 February 2008– 31 October 2009
The project costs: €8,320
The donor of the project: Oxfam Novi (the Netherlands) through UHHRU
The name of the project:Campaign against xenophobia and discrimination in Ukraine
The period of financing 17 March 2008 – 16 March 2009
The project costs: $15,090
The donor of the project: U. S.Embassy in Ukraine
The name of the project:Analysis of Ukrainian legislation on the freedom of information and development of recommendations for its improvement
The period of financing: 2 June 2008 – 28 February 2009
The project costs: $24,960
The donor of the project: USAID
The name o the project: Preparation of the year annual report “Patient rights in Ukraine – 2008”
The period of financing:26 March 2008– 28 February 2009
The project costs: $5,000
The donor of the project: International «Renaissance» Foundation (Ukraine, Kyiv)
The name o the project: Campaign against Torture and Ill-treatment in places of imprisonment
The period of financing:1 May 2008– 30 April 2009
The project costs: $99,941
The donor of the project: Open Society Institute (Budapest)
The name of the project:Development of national preventive mechanisms (NPM) against torture and ill treatment in establishments of the Ministry of Interior of Ukraine and the State Department of Ukraine on Execution of Sentences
The period of financing:10 April 2008– 5 December 2008
The project costs: €24,860
The donor of the project: OSCE Project Co-ordinator in Ukraine (Kiev, Ukraine)