20 years of Good Intentions: Human Rights in Ukraine
“Everything has become muddled, once and for all”
1987 — 1994
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 right up to 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 were severely punished for publicly expressing their views. Yet it was they who were the moral and intellectual mainstay of the intelligentsia. I
The situation began in the spring of 1987 when a huge number of prisoners of conscience were released.
The civic democratic movement which began in Kyiv and Lviv by the end of 1989 had spread to almost every city in Ukraine. In western regions it was more of a mass movement and had a marked national-democratic orientation. In the east, the civil movement upheld general democratic values, was limited to large cities and was much weaker. All political parties which appeared around the beginning of the 1990s were national-democratic, were headed by former political prisoners, and had programmes 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 by promoting a move towards greater freedom for Ukrainian society.
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. 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 main reason for this, in my opinion, was the weakness of Ukraine’s 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. The Soviet administrative and directive system, with all its inherent contradictions, was retained. The former political elite virtually entirely stayed in control at all levels of power.
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 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.
Having waited a little and looked around, the Ukrainian nomenklatura (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. Meeting with practically no opposition from society, the nomenklatura, 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.
Yet from today’s perspective, that period still seems quite favourable. It’s no accident that those years were labelled “rosy democracy”. Thanks to the inertia of perestroika progressive and to a large extent romantic laws were passed – on freedom of conscience and religious organizations, national minorities, the printed press; on State secrets; on citizens’ appeals; etc. The process of rehabilitation of victims of political repression was underway. You could still watch the State-owned First National TV channel and read the State-owned press. There were real efforts to discuss important issues. For example, broad discussion was organized of the draft Constitution in 1993 and this was, as a result, rejected as unsatisfactory. Independent publications still dared to carry out journalist investigations and attacks on journalists had not yet become common.
“There have been times that were worse, but none more sordid”
With the election of Leonid Kuchma President, the process of personal aggrandizement of the nomenclature, the creation of financial-oligarchic 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 totally illusory. Faith in strong executive (presidential) power did not prove justified, government structures were slow to reform and unable to keep up with rapidly developing 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 machine, of the bureaucracy in a whole range of political situations proved too strong, and civic activeness was, accordingly, undermined.
All of that was fully reflected in the Constitution which in Ukraine is considered to be one of the best in Europe. It is difficult to agree with this point of view. For example the social and economic rights cannot be fulfilled by the State and cannot be norms of direct force. It also fails to envisage submissions to the Constitutional Court from ordinary courts, not to mention from members of the public. Of the dozens of requests from members of the public to interpret norms of the Constitution, the Constitutional Court has only considered a few. In other words, the constitutional system for defending human rights virtually doesn’t work.
According to Article 3 of the Constitution, «human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State». Yet the Ukrainian state proved incapable of fulfilling this duty primarily because it was itself the perpetrator of human rights violations which became more and more widespread and large-scale. Some interrelated trends which are highly dangerous as far as human rights are concerned became gradually more entrenched:
1. Administrative pressure from the State increased together with the will to strictly regulate life in any sphere (particularly economic). 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. 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 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. 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 which was three times lower than the subsistence minimum. 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 right to housing, an adequate standard of living, to social security, to employment, to healthcare, and education seemed a total mockery. Violation of these rights was most significant. The State never in fact 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
3. The political struggle gradually turned into the crushing of opponents using any means, including 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. Pressure was flagrantly and persistently exerted on voters so that they would make ‘the correct choice’, and there was practically no chance for any opposition candidate to have contact with the electorate through the electronic 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
The murder of journalist Georgy Gongadze, the activity of the Committee «Ukraine without Kuchma» speeded up confrontation between the regime and the people, and its formalisation in the political field at an institutional level. 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-legal policy became increasingly brutal. Torture and ill-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. The number of acquittals never exceeded 0.35%. Ukraine is one of the record holders for the number of prisoners per head of population. The problem of overcrowding in detention units became increasingly serious with the conditions in them extremely bad.
Through the efforts of human rights organizations the problem of torture and inhumane treatment began to receive much more attention in the mass media. In December 2000 the death penalty was found by the Constitutional Court to be in breach of the Constitution and replaced by life sentences. Torture was recognized as a separate crime in the new Criminal Code. There were less cases of hazing in the army.
5. 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 President’s 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. Laws on the President, on the Cabinet of Ministers , on Verkhovna Rada special and enquiry commissions and their regulations, about pre-trial investigation, etc, were never adopted. President Kuchma vetoed the Law “On the Cabinet of Ministers of Ukraine” 8 times and the Law “On temporary special and enqury commissions of the Verkhovna Rada” 5 times.
Of great significance was the adoption of the Code of Administrative Proceedings which was a powerful weapon in the struggle for human rights in the administrative courts.
6. Surveillance by the enforcement bodies 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. As one of the judges of the Supreme Court publicly stated, in 2002 appeal courts issued 40 thousand sanctions for the interception of information from communication channels. For comparison, of countries in Europe only France and Holland have more than 1 thousand warrants a year.
A system for monitoring the Internet was actively introduced. Internet providers were forced to install it at their own expense and pass traffic to the SBU [Security Service]. This monitoring is unlawful since there are no legal grounds for it.
7. Freedom of speech was ever more widely infringed. Control over the mass media, especially forms of electronic media, became ever stricter and more flagrant. State executive bodies gradually developed a huge arsenal of means for forcing those in opposition to be silent: closure of media outlets; making rules for registration more complication, endless checks from various monitoring bodies – the Control & Audit Department, from the tax authorities, fire services, etc; freezing accounts in banks, printing companies refusing to print issues and even withdrawing printed issues, refusal to allow publications centralized distribution, intimidation and even assaults on journalists; defamation suits lodged by government officials with ludicrously large amounts sought in moral compensation; reports alleging slander or insults.
From 2000 to 2001 the scope for freedom of speech and the press broadened somewhat. Thanks to the efforts of human rights organizations), slander and insult were decriminalized, and on 25 May 2001 the Plenary of the Supreme Court adopted 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. However there continued to be virtually no independent journalist in the country.
In the middle of 2002 a new attack on freedom of the mass media, in particular, electronic forms, began, where the use of ‘temnyki [instructions to the media on what to cover and how, and what was to be ignored] made all news programs similar and uninteresting
8. 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»; «For official use only» and «Not to be printed»
As for information on open access, departments were extremely reluctant to provide this. From 2000 the situation with access to information became a little better. All State executive bodies opened their own web-sites, and access also appeared to draft laws
In 2004 all of the above mentioned trends became even more pronounced, and were fully demonstrated 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 can’t stop freedom!»
The Orange Revolution yet again confirmed that freedom is the ultimate value for some Ukrainians, which is more important than life, and that the Ukrainian national idea is the idea of freedom. A major part of those who took part in the uprisings in the GULAG – the Vorkuta, Norilsk and Kenigir uprisings – were Ukrainians. “The virus of insubordination”, the yearning for freedom and wish to determine ones own fate proved so strong specifically among Ukrainians. It was they who got people to rise up, despite almost inevitable death. This same yearning I see in the shistdesyatnyky [the movement of the 1960s] who went to the labour camps for the right to call things by their name. It was freedom that was the driving force bringing people to Maidan [Independence Square] on 21-22 November. When they came out, they did not know what awaited them, and in churches there were prayers for their life.
As Vaclav Havel said, the presidential elections in Ukraine were the funeral toll for the remnants of Ukrainian post-communism. A bell which rang on the capital’s Independence Square – as though by itself. And once again the old truth was confirmed: a political regime, which violates human rights more and more flagrantly, sooner or later is doomed.
However, as later events were to show, the funeral proved purely symbolic.
«It’s all just around the corner..»
From 2005-2009 the general atmosphere within the country was more humane. The weakening of pressure by the State on the individual resulted in an improvement in the human rights situation, in the exercising of rights and freedoms where the State should not interfere – freedom of speech and information; freedom of association; the right to free elections; freedom of business enterprise, etc.
However it turned out that this process was to a large extent linked with a weakening in the regime itself which more took a conditional step back in its relations with its citizens than actually extended the scope of freedom. Where the State had a duty to do something to improve the situation (implementing positive duties, such as investigating cases of torture; creating new jobs, etc) there was no improvement since on the whole it remained inactive. The unsuccessful constitutional changes of 8 December 2004 had extremely negative consequences, including causing a struggle for powers between two centres for decision making within the executive – the government and the President. This resulted in serious threats to human rights.
The intensification of the political struggle in 2006-2007 turned into an acute political crisis and brought about a general reduction in the level of political freedom. The right to be elected turned into a chimera. This right could effectively only be enjoyed by members of political parties which make up only 4% of the voters. All political forces infringed the principles of rule of law, in particularly though putting pressure on the courts. The crisis prevented the carrying out of necessary reforms – constitutional; judicial; criminal justice; administrative; and others.
On top of the political crisis the second half of 2008 brought a full-scale economic crisis which the government had difficulty coping with, especially due to the loss of control and impossibility of swiftly drawing up and adopting decisions. This hit the poorest layers of society hardest, as well as the middle class. Those on low incomes found it even harder to survive because of the rise in prices and inflation, the increase in tariffs on communal services and the lack of adequate social protection. They became even more dependent on their employers, the relations with whom are often feudal-like.
Unemployment, including concealed, rose considerably, and to a large extent also affected qualified workers and office workers. The fall in GNP was the worst in Europe, and the already great divide between the standards of living of rich and poor widened still further.
In these conditions the situation with social and economic rights in general could only deteriorate, especially given that safeguarding and defending human rights was not a priority for those in power. From 2007 to 2011 the government suspended fulfillment of economic and social rights in the Budget despite a ban on this by the Constitutional Court.
The problem of enforcement of court rulings remains acute with each year over 70% of court rulings in civil proceedings not enforced. The state is doing nothing to change the procedure for paying money in wages arrears.
The situation in the penal system remains stably bad. This is the single body in Ukraine which has virtually not changed during the years of independence. Other law enforcement bodies are also in acute need of reform, especially the Prosecutor’s office. There is a progressive concept framework for reform of criminal justice. However the government is in no hurry. Even the submission to parliament of a over draft Criminal Procedure Code which would significantly facilitate changes in the law enforcement bodies keeps being put off.
There are constantly flagrant violations of property rights, including unlawful seizures of land or other property running counter to the law, the wishes and decisions of the local territorial communities or owners.
Following the 2010 Presidential elections, we seem to have returned to the beginning of 2000. All the above-mentioned trends have begun working again with full force. Political freedom is decreasing fast. One is seeing a major assault by the authorities on civil rights and political freedoms. We have flagrant violations of freedom of peaceful assembly, freedom of expression, the right to privacy and the right to a fair trial. The law enforcement bodies are being used as an instrument for harassment, selective justice is being fully used under the pretext of fighting misuses and corruption. There are political prisoners with as many as 20 cases at present having political motives.
This expansion of power is encountering resistance from the public and was in some cases stopped, however on the hold it is continuing and becoming the greatest threat to human rights.
Ця експансія влади наштовхнулася на опір суспільства і була в окремих справах припинена, проте в цілому вона зберігається і становить найбільшу загрозу правам людини.
V. Chamberlain once wrote in his work “Ukraine – a subjugated nation” that the Ukrainian political elite constantly betrayed its own people. However he was writing about times of political bondage while we are now observing moral betrayal by the elite of the Ukrainian people in conditions of State sovereignty.
Human rights organizations have gradually become stronger. There are now, I would estimate, around 200. However the results of the activities of even such a small number of human rights groups are impressive. They can boast of tens of thousands of cases where they have defended rights, thousands of cases won in domestic courts, around 100 in the European Court; preparation of independent reports on Ukraine’s implementation of its international obligations; preparation of a number of draft laws; publication and circulation of literature on civic education and human rights; spread of the number of courses on human rights in schools and institutes; educational seminars for various professional and social groups and many other successful actions. However these positive examples of successful human rights activity are lost among the mountains of human rights violations.
In conclusion, we are forced to conclude that there is no systematic policy at all on improving observance of rights and freedoms in the country. The actions of the State with regard to the human rights sphere are unsystematic, chaotic and ineffective. Violations of political and civil rights in 2010-2011 were the most serious of all the years since independence. Some of the above-mentioned violations, specifically political persecution, combined with violence and/or criminal prosecutions, the use of the law enforcement bodies for political ends; violent disappearances; the poverty of people in employment have been the subject of particular attention from human rights organizations. Such violations are serious and dangerous, indicating an assault by the authorities on the people’s freedom and carry the threat of a restoration of totalitarianism. Elimination of these violations must become the priority of the State.