Human Rights Activist: Ukraine will lose the Lutsenko Case in Strasbourg



The public conflict between the Ukrainian regime in power and the opposition may once again become the subject of discussion in Europe.  National Deputies from BTuT, outraged by the recent attempt to arrest Yulia Tymoshenko, have again accused the President’s team of political persecution and threatened to complain of repression to ambassadors of EU countries. “Today it’s Tymoshenko, Lutsenko, Makarenko, Didenko, Shchepytko, tomorrow – and Ukrainian citizen”, they said in explaining their complaint.

The regime reacts to such accusations with a standard collection of phrases: there is no political repression in the country, no selective application of the law, the criminal prosecutions against opposition politicians are of a purely legal nature and the court will have the final word on them.

There is a third, impartial side in this conflict – human rights activists. They agree to a large extent with the opposition and say that there is repression in Ukraine. Member of the Ukrainian Helsinki Human Rights Union Board and Co-Chair of the Kharkiv Human Rights Group, Yevhen Zakharov gave an interview to LIGABusinessform where he considered whether there is any logic to the Lutsenko cost; why members of the Tax Code protest are being put under pressure and the human rights situation in Ukraine in general.

- The number of political prisoners, that’s how they call themselves, has been rising over recent months. Some are already being held in SIZO [remand units], others are simply going to interrogations. Lutsenko declared hunger strike in protest. Tymoshenko is calling on European institutions. Can one really speak of political persecution in these cases?

Unfortunately, yes, one can and must speak of this. Moreover in each of these cases one can observe actions of the authorities which are totally idiotic from the point of view of commonsense.

If we take the “Lutsenko case” over the work years status of his driver: what did Lustenko do? He only sent a letter to the Cabinet of Ministers  in which he asked whether he could include the time that his driver worked before coming to the police in his police work years record. Lutsenko wrote no less than 20 of such letters.  Before him such letters were written by Tsushko, Bilokin and the current Minister Mohylyov has already written several. This is normal practice. The question goes to the Cabinet of Ministers, the Ministry of Labour answers. If you’re speaking of an organized criminal group, there should be dozens of officials of the ministry who prepared letters. Where the punishable criminal acts were in Lutsenko’s behaviour I don’t understand. The losses – 40 thousand UAH – have been repaid.

The charge, therefore, seems legally nonsensical. And the reasons for moving Lutsenko from a signed undertaking not to abscond to remand in custody are incomprehensible. What are they saying, that he went away without the investigator’s permission?  There was nothing of the sort. The court gave fourt motives. The first was that he was taking a long time to familiarize himself with the file material. This is an absolute outrage, it is the right of every person accused and their lawyer to familiarize themselves with the case, and not the prerogative of the investigator to write a schedule. The Danish Helsinki Committee on Human Rights which monitored the case has written that this is unheard of that the investigator determines how a defendant prepares for the trial.  The second reason is that he refused to admit guilt. Excuse me, this is his right, guaranteed by the Constitution. The third is that he refused to answer questions about himself. That is also his right. And the fourth is that he gave interviews, wrote articles, in that way obstructing the work of the investigators.

All four reasons taken together are a flagrant violation of human rights, of Articles 5, 6 and 10 of the European Convention on Human Rights. If the European Court examines the case, in my view, the government will lost and pay Lutsenko several thousand euro.

So in the “Lutsenko case” political motives outweigh legal?

You know in our country it’s been a long time since we saw such a flagrantly unlawful case. There is not one action of the Prosecutor, one court ruling which could be logically explained and called lawful. As for unlawful actions, unmotivated remand in custody, these are exactly the hallmarks of political persecution. Particularly since there is a clear political motive in this case.

What does it consist of – what do they want from Lutsenko?

It’s all very simple. They want him to give up, stop asserting that he is in the right. In the Internet I saw an assertion that they want him to give evidence with regard to the former Prime Minister’s government. I don’t know how much truth there is in that. But here it is quite clear, that he is standing firm, insisting that he is not guilty of anything, that he committed no unlawful, and still more so, no criminally punishable actions. And he is told that he’ll be in prison. And that’s it. The last time they thought up that he would be in custody until the lawyers read through all the file material. This is like sacrilege, to put such things as the motivation for a court order remanding somebody in custody. That was why he declared a hunger strike since he had no more legal arguments left. And even with that he didn’t succeed in getting them to release him.  They want to break him, want him to give him, say that he’s guilty. I think this battle will continue to the court ruling. And for me it’s clear that there is no good waiting for anything reasonable. The very case is in style very similar to those against human rights activists in the 1970s and 1980s. Lutsenko himself is gradually turning into a typical prisoner of conscience. What will happen next? The attitude to Lutsenko is changing; they’re making a martyr out of him in the eyes of many people. Even those who don’t have a good attitude to him are beginning to sympathise with him.

Who else can be deemed to be a victim of political persecution?

The Tymoshenko case is also undoubtedly political. This has been confirmed by international experts. At least they haven’t imprisoned her. But they planned to.

There are also political cases which don’t affect officials. For example, two cases against small business owners who took part in the Tax Code Maidan [the protests against the new Tax Code – translator]. One is on a charge of group infringement of public order, the other – for driving pikes into the square and in that way deliberately spoiling the granite slab.  The motive is political – to scare those who came out onto Maidan [Nezalezhnosti – Independence Square] so that they don’t do it again. The infringement of order consisted in the fact that on 22 November notification was given of a protest rally with 100 thousand people, and it is absolutely plain that with that number of people, the transport in the centre of Kyiv won’t be able to move. What should the police have done?  They should have sent them around.  However they didn’t do that.  That’s how they ended up with “group infringement”  The question arises: who is answerable for this? There is another thing: the investigation was initiated over this, but not one person was charged, yet they dragged thousands of small business owners to be questioned, taking them right from their workplace, scaring them, threatening. All of this together shows that the regime is frightened of a new Maidan and doesn’t want new protests.

Seven people are charged in another case. One and the same sacramental phrase is written in the order to initiate a criminal investigatgion: having joined together by agreement into a criminal group, they drove those same pikes and put up tents. And then turns out that the people don’t know each other, that they first met at the court hearing. You can’t talk of any conspiracy! Furthermore, the first four who were charged didn’t have any connection with Maidan at all, however they did all have previous criminal records.  Those in power thought that all of this would go unnoticed. And it turned out that people took an interest in these people, began to defend them, got them released from custody and showed up the scam. And now, at the very first court hearing on the case Judge Yevhen Sidorov looked at all of this and sent the case to the Prosecutor for further investigation. So the case is hanging in the air.

Then if we take a third category of cases linked with the actions of organizations which call themselves patriotic. They daubed paint on the monument to Dzerzhynsky -  malicious hooliganism. They cut off the head of the bust to Stalin in the courtyard of the regional committee [obkom] of the Communist Party in Zaporizhya, videoed it and posted it on a website – there are searches, interrogations, detentions throughout the country: all are identified, taken to Zaporizhya, beaten, deprived of their clothes, not given food. Totally insanity. For what? For cutting off the head of a bust to a man whom the majority of Ukrainians consider a butcher and criminal?   Why deprive of her liberty a young woman who fried eggs on the Eternal Flame?  Of course this is, perhaps, unattractive, aesthetically unappealing means of expressing ones views. But excuse me, you can’t imprison somebody for expressing their views. This is an inappropriate response by the State.

All is clear with politicians, at least they can afford good lawyers, and are held in cells for 2 people, and dozens of journalists attend their court hearings. Normal people have it much harder. How do you assess the situation with human rights violations, has it got worse?

It has. Moreover thanks to those unusual historians whose political motives are clearly visible and who have therefore become the focus of attention for a large number of people, everybody has seen how it’s all happening. And there’s no difference in actual fact. The difference is only as you mentioned that they are in better conditions in SIZO. And that’s not all of them, but only the VIPs arrested. As for the others, it’s just the same as for the members of “Tryzub”, those suspected of an offence are subjected to torture and other forms of unlawful violence. The aim is clear – so that they confession. The estimated number of victims in 2010 around the country is 700 thousand.

How does that compare with previous years?

In 2009 it was 604 thousand. However in 2004, say, it was more than a million. These are huge figures and they’re received through sociological surveys. The respondents were four thousand people in five cities. The sociologists selected all those from among the respondents who in answer to the questions said that they had had such problems. Then they extrapolated the figures for the entire adult population and received such a figure.

How objective is this?

These are estimated figures, but they’re huge. Even the Human Rights Ombudsperson Nina Karpachova admits that every third detainee in Ukraine is subjected to torture. This is a problem which concerns everybody. Yet not everything ends with this. The situation with Lutsenko for whose detention there were no grounds according to the Criminal Procedure Code is seen in ordinary cases quite often. The accused are therefore held in SIZO. Nor is there in Ukraine, as there is in other countries, an overall restriction on the time a person can be held in custody during the investigation and trial. A person can be held in a SIZO without a sentence for seven years, or ten – there have been such cases. Although, for example, in neighbouring Moldova they have long introduced a norm saying that you can’t spend more than two years proving guilt. If you haven’t proven it in two years, release the person.

For example, in the case of Kharchenko v. Ukraine, the judgement passed on 10 February this year (where Ukraine was ordered to pay 20 thousand euro compensation for a former detainee of the Kyiv SIZO who had been in custody from April 2001 to August 2003 – Ed.), the European Court found systematic violations and gave the Ukrainian government six months to rectify legislation on pre-trial investigation and remand in custody. Yet May has ended and nothing has yet been done.

The conditions of  pre-trial detainees in places of confinement cannot be called normal. New SIZO are not being built and there are only 32 around the country, on average holding 40 thousand people.  And there are far less places. This does not mean that the situation is equally bad everywhere. There are over-crowded SIZO, and ones that are not full; it all depends on the level of crime in a particular region. Yet five SIZO – Kyiv, Kharkiv, Donetsk, Crimean and Dnipropetrovsk – are always over-crowded. Lutsenko is in a threesome unit where for three places there are three people. There are also cells for 30 beds with 70 people, who take turns sleeping.

Can the reaction of European institutions have any impact?

They have an impact, of course. At the moment in the State Penitentiary Service there is a new leadership who want to cooperate with human rights activists, count on cooperation and help. We can only welcome that. But this friendship, or I’d say, dialogue will be normal only if they don’t hide the abuse which is there.

Do they hide it now?

I won’t throw stones, they are in a very difficult position. Because the system is in a terrible state, is under-funded, not being reformed, ridden with corruption. And these things cannot be rectified immediately.  It’s important to understand that there is the desire to fix things and to gradually seek the brick which if removed, will bring down the entire wall. I suspect that I know where that brick is. If they’d only agree with this. I mean the lack of openness of the system, the isolation of prisoners from the outside world, the virtually total lack of public control. After all the prisoner is almost totally under the power of the Administration and can’t even complain about their actions.

With the police at present there is no dialogue. Under Mohylyov everything has only got worse.

The former First Deputy Minister of Justice, Yevhen Korniychuk recently, as he was already leaving the SIZO,   expressed regret that he hadn’t given attention to reforming criminal justice. Do you think in the present conditions that it is realistic to carry out such reform?

There is a concept for such a reform, drawn up by President Yushchenko’s Decree in 2008.  Who prevented him from carrying it through you’d better ask him why it wasn’t done. Particularly since there was already consensus on reform within the legal milieu, all had agreed among themselves. I also took part in that discussion and therefore know it all well. There was a draft Criminal Procedure Code which was quite acceptable. Furthermore the members of BYuT then, in December 2009 swore that they would pass it, yet didn’t do it. If the new CPC were now functioning, there wouldn’t be this disgraceful mess.

Will the new regime wish to carry out reforms? I have serious doubts since that will prevent them from getting rid of people from politics, as is happening now, their opponents. In additions they have in no way proven that they really want reform.



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