Human rights in Ukraine in March – August 2014: general trends
Overview
The incompatibility of the country’s internal policy with the interests of Ukrainians resulted in open confrontation with the government after its rejection of the country’s integration with Greater Europe. This was at first peaceful, then after the use by the regime of force and the murder of peaceful demonstrators – armed. The Ukrainian people spontaneously exercised their natural right, which is nowhere articulated in Ukrainian legislation, to rise up against a political regime that has usurped power, using it solely to gain personal wealth, using repressive measures against all its opponents and flagrantly violating human rights and fundamental freedoms. Ukrainians yet again demonstrated that for many of them freedom, justice, honour and dignity mean more than their own life. Those events have become known both in Ukraine and abroad as the Revolution of Dignity.
The spirit of Maidan, the wish for change to a large extent determined the actions of the new administration formed after victory and undoubtedly had positive intentions with respect to reform of the country, including in the human rights sphere. However the occupation of the Crimea by Russian forces, the artificially organized separatist movements in the East which gradually turned into armed aggression, and the full-scale military conflict with the Russian Federation in the Donetsk and Luhansk oblasts made human rights issues secondary. In the best instance their resolution was put off to future peacetime, in the worst – amendments to legislation and practice seen, with some exception, exacerbated the present situation with human rights and fundamental freedoms.
One can say overall that the new administration has often neglected the principle of rule of law and violated the Constitution, with their actions governed by political expediency. These violations during the first days after victory could be forgiven: revolution always dismantles an old legal system and creates a new one. There were necessary swift actions aimed at ensuring that the country was government. According to the Constitution, in the absence of the President, the speaker of the Verkhovna Rada carrying out his duties, cannot appoint ministers of defence or foreign affairs; the head of the SBU; appoint or dismiss heads of regional state administrations; put forward a candidate for prime minister, etc. Yet the country could not be left without bodies of power, and so this needed to be done. However they must not continue infringing the Constitution and laws in the name of supposed political expediency! Yet precisely this has happened.
The Law on reinstating the force of some provisions of Ukraine’s Constitution, passed on Feb 21 was in breach of the Constitution. Article 85 of the Constitution in force at that time which contains a list of parliament’s powers does not envisage any possibility of “reinstating the force of Ukraine’s Constitution through a single parliamentary vote. Article 85 of the Constitution states that the powers of the Verkhovna Rada (with respect to possible modifications of the Constitution) include “introducing amendments to the Constitution of Ukraine within the limits and by the procedure envisaged by Chapter XIII of this Constitution”. It is clear that this procedure is exclusive in its procedural parameters, lasting and complex.
Furthermore, Article 5 of Ukraine’s Constitution states that “The right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials.”
The latter, both formal logic and common sense tell us, means that all amendments to the Constitution which include or significantly touch on elements of the constitutional order in Ukraine must be passed solely by the people at a national referendum.
This circumstance, stressed by Bohdan Futey, should be considered universally binding. Strictly speaking, this circumstance is sufficient for the Constitutional Court under any other conditions to be unable to accept the constitutional reform of Dec 8 2004 passed through a purely parliamentary vote. In addition, the constitutional draft law No. 2222-IV was voted by parliament in a package with an ordinary draft law and a Verkhovna Rada resolution. This led to a legally unacceptable reverse situation when the texts of an ordinary law and resolution directly influenced the nature of Ukraine’s Constitution. It would seem that only the low level of legal culture in Ukraine made it possible to discuss the subject of the Constitutional Court’s ‘betrayal’ and also the violation by the Constitutional Court judges in this case of their oath.
Parliament began taking over the role of the judiciary. They should not have dismissed the Constitutional Court judges who voted in September 2010 for the revoking of the law on amendments to the Constitution for infringement of their oath. They should not have instructed the Prosecutor General’s Office [PGO] to initiate criminal proceedings for handing down a judgement that 307 MPs considered to be unlawful and unconstitutional. By taking on the powers of the High Council of Justice [HCJ], parliament acted unlawfully.
Parliament should also not have released political prisoners (except perhaps the one exception – the release of Yulia Tymoshenko). Such decisions can only be taken by a court having considered the relevant cases. Parliament could have returned the Supreme Court all the powers it had up till 2010 and ensure a mechanism for reviewing such cases as extraordinary proceedings. Instead of this, the Verkhovna Rada passed a law on individual amnesties – an extremely dubious legal construct ! – to justify their actions.
Later there were also constant infringements of the Constitution and principle of rule of law, contempt for the judiciary and the wish to control it on the basis of political expediency. Constitutional legislation was damaged, the legal system’s balance upset. The only solution would seem to be to adopt a new Constitution and based on this to amend ordinary legislation and the relevant practice. The authors of a new draft constitution should be oriented towards a radical change of Ukraine’s Constitution, and not just cosmetic changes. Its basis should be a strong nation; a responsible government and rule of law. However for the moment constitutional reform is blocked. The amendments to the Constitution proposed by the President were clearly unsuccessful and were not even considered by parliament.
There has effectively been no movement on other needed reforms in the human rights sphere – to the judiciary, criminal justice, education, etc. Draft laws on the Prosecutor’s office and on probation prepared for their second readings and needing to be adopted are put off again and again. A draft code on criminal misdemeanours has long been awaiting consideration. Their entry into force would immediately free up investigators who are currently overloaded. Yet this is also being stalled for some reason. The law on reinstating confidence in the judiciary did not achieve the aim of replacing heads of courts. 87% of them were re-elected to their posts democratically in accordance with this law. Unsuccessful reforms in other fields – pension, medical and others – need real reform of these spheres again.
At the end of March – beginning of April 4 draft laws on lustration were tabled in parliament. These could not be combined, and parliament also clearly didn’t want to pass such a law. Later a draft bill ‘On cleaning up the authorities’ was tabled. This was an attempt to combine the previous four however its approach is basically half-populist and certain provisions clash with the recommendations of the Council of Europe, European Court of Human Rights case-law in lustration cases; and principles of international law. It envisages, for example, total dismissal of all officials and civil services which is clearly unwarranted, while many of its procedures set the scene for systemic human rights abuses (more details here: http://khpg.org.ua/en/index.php?id=1407941071). Yet on Aug 14 this bill was passed in its first reading. More than 400 comments were submitted, yet the bill was voted in as a whole on Sept 16 although the MPs did not even have the text of the draft bill which they voted for under pressure from the people on the street! It is not known whether comments were taken into account, and if so, which. As of Sept 19 the law had still not been posted on the Verkhovna Rada portal. Such actions simply destroy parliamentarianism in Ukraine. It would be fair if the President vetoed this law for flagrant infringement of procedure.
Draft laws are being produced aimed at making the fight against separatism more effective. These including the draft laws On preventive detention; On amendments to the Criminal Code [on increasing liability for crimes against the foundations of Ukraine’s national security]; On measures against separatism; On a special regime for pre-trial investigation in the area of the anti-terrorist operation [ATO]; and others. All of these are in breach of the Constitution and international human rights standards. For example, according to the first law the police and security service are effectively given the right to detain a person for 6 months without initiating criminal proceedings. Nor do the norms of the Criminal-Procedure Code apply to the person whose status is not defined and who will not enjoy a range of rights aimed at defending people who have been remanded in custody. They will not be able to change their situation on the basis of the norms of the Criminal-Procedure Code on change in restraint measures since ‘preventive detention’ is not considered a restraint measure. Another law unwarrantedly introduces rejection of the principle of a time bar for criminal prosecution with respect to a number of crimes against the foundations of national security, as well as a new maximum level of 12 years imprisonment for the lower limit of criminal prosecutions. All these failings will sooner or later have to be rectified.
One should note the adoption of progressive amendments to the Penal Code which have promoted greater openness of penitentiary institutions. MPs, their advisers and doctors and journalists with them, now have the right to visit these institutions without hindrance. These amendments have also improved the possibility for prisoners to have telephone contact with their relatives, and have allowed long-term visits for life prisoners.
A new problem for the country has arisen, that being internally displaced persons [IDP] from the Crimea and Donbas. As a result of the occupation of Crimea and military aggression in Donbas, large groups of people from those regions were forced to leave their homes, fleeing from political persecution and violence for supporting Ukraine’s unity. In June large groups of residents of Slovyansk, Kramatorsk; Horlivka; and other cities where the military conflict had intensified, fled the military action, going to Kharkiv; Kyiv; Dnipropetrovsk and other places The government has not proved ready for these new challenges and it has been numerous volunteers as well as the local authorities who have taken the problems faced by IDP on their shoulders. A draft law drawn up by members of the public “On forced displaced persons in Ukraine” which had received favourable assessments from international and domestic experts, was rejected by parliament. In its place a much simpler bill was passed on June 19. This only resolved the issue of registering IDP and was not aimed at solving IDPs’ problems. Under public pressure, the President later vetoed this bill. Members of civil society in cooperation with the authorities and international organizations drew up a new draft law however adoption of this keeps being deferred. Registration of IDP is being carried out badly, with people who have moved within the boundaries of the Donetsk and Luhansk oblasts not being taken into account, nor those who have returned to areas liberated. Many IDP do not register at all, and a database of IDP has not been created.
Overall it should be acknowledged that, despite numerous mistakes, the new administration from 22 February – 31 August managed to cope with the political and economic crisis; to re-create battle-fit armed forces and security bodies; create and train volunteer police units which, together with the National Guard and special Interior Ministry units, saved the country in the first two months of the military action. It also prevented the conflict with Russia from spreading beyond Donbas and managed to successful hold presidential elections on 25 May. Cooperation between government officials and municipal bodies and the public has become considerably more successful. Voluntary work has developed greatly with this providing some of the best examples of civic solidarity. At the same time the military conflict which is consuming all energy and expenditure; the inertia of the political system; corruption in state and local bodies; the lack of reform stand in the way of development for a country which quite recently shed Viktor Yanukovych’s oligarch regime, and therefore numerous threats remain for human rights and fundamental freedoms.
Observance of individual rights
The use of force which defenders of Maidan were forced into in Kyiv; the death of a considerable number of people; the general excitation and euphoria of the first days after the revolution; and a large amount of weapons in peoples’ possession led to a steep reduction in immunity against violence. Dominant during those days were the demands of people with weapons who said that only their orders must be obeyed; document checks of everybody; arson attacks; lynch law; posts or corridors of shame; harassment of the relatives of prominent members of the Party of the Regions; and sometimes people being beaten up for no reason at all. The police was disorientated and passive. Members of artificially organized separatist movements in Donbas and in Kharkiv began carrying out acts of violence, only much more often and much more brutal, imitating the corridors of shame and carrying out terrible beatings of Euromaidan supporters. As already mentioned, leaders of the self-proclaimed Donetsk and Luhansk people’s republics [DPR, LPR, respectively] made it a daily thing to persecute first pro-Ukrainian civic figures, then later simply anybody whom they didn’t like or who objected to their actions. People disappear without trace each day with it later becoming known that they have either been shot, or are being held in the basements of official state buildings [the SBU, police and others] seized by the separatists – in Slovyansk; Luhansk; Donetsk; Horlivka and other cities. The condition for their release has been ransom – whether a certain amount of money, or a car or their property. Over 400 forced disappearances are known, and a list of victims has been drawn up, although it is far from comprehensive. Robberies, searches, appropriation of cars and other property have become everyday occurrences.
Prisoners have been held in terrible conditions, often without light, without being taken outside, in unsuitable premises where they were extremely badly fed and not provided with medical care. They have been tortured and some beaten to death, such as Volodymyr Rybak, deputy from the Horlivka Council whose body was found on April 22 in the river Kazenny Torets near Raihorodok in the Donetsk oblast with signs of torture and his stomach cut open. Another body, similarly tortured, was later identified as Yury Popravko, a 19-year-old student. Rybak was abducted on April 17 for trying to take down a DPR flag and replace the state flag on the building of the Horlivka regional administration. The separatists treated Ukrainian enforcement officers taken prisoner just as badly, torturing, beating and tormenting them.
This led to an analogous backlash from Ukrainian enforcement officers, especially some volunteer battalions such as Aidar (and most complaints are specifically against fighters of this defence ministry battalion); Azov; Dnipro-1; Donbas. Some of those fighting have considered that they can treat prisoners in the same manner as the separatists. Cases have been recorded when captured separatists have been tortured, even to death. There have also been abductions of people with demand for ransom; seizure of cars; robberies, because the fighters considered that they could rob separatists’ homes. Detention by the enforcement bodies of people who seemed suspicious, with the use of force against them, has become an everyday occurrence. The prosecutor’s office has not investigated these crimes.
It should however be noted that the command has tried to establish discipline in the interior ministry’s volunteer battalions. Several dozen fighters were dismissed for infringements of discipline and the situation has gradually improved.
One can also observe an increase in hatred towards the separatists, triumph when their fighters are killed, and the circulation in social networks of the photos of the bodies of enemies. This growing general brutality creates the conditions in which torture and other forms of violence thrive. When the mood in society changes in this way, the same inevitably happens in the state authorities. The attitude of the police to detainees accused of separatism or terrorism has been brutal with the public’s tacit consent. Numerous cases of beatings or even torture of detainees have been recorded.
In the Donetsk and Luhansk oblasts the right to life has become illusory. The militants shoot and kill people (for example, in the city of Bryanka, Luhansk oblast four students were shot just because they greeted each other “Glory to Ukraine!” – “Glory to the heroes!”. Two died immediately, two were taken in a grave condition to hospital).
There are no exact figures for the number of people killed. People died from military action with it being impossible to unequivocally say who carried out the shelling. the sides blame each other however there is a lot of evidence that the fighters are shelling residential areas. According to estimates from human rights activists, in Luhansk alone 348 civilians have been killed. A list of those killed has been drawn up but it is not comprehensive.
Observance of political rights and freedoms
The situation with observance of political rights was extremely varied depending on the area of the country. If in the Crimea; Sevastopol, the Donetsk and Luhansk oblasts political freedom in general was effectively totally destroyed, in other regions of the country, there were virtually no restrictions. Therefore these regions should be considered separately.
After the occupation of Crimea persecution began of all civic activists who publicly tried to express a pro-Ukrainian stand and who didn’t agree with the actions of the new Crimean leadership and Russian Federation occupiers. Some were arrested and charged with fictitious criminal offences, for example, the well-known film director Oleg Sentsov who was arrested on May 11 on suspicion of terrorism. Most pro-Ukrainian civic activists have been forced to flee political persecution and move to mainland Ukraine. There have been many attacks on journalists.
The March 16 referendum on the status of Crimea was not recognized as legitimate. It was conducted with numerous infringements of electoral rights. According to official data, 96.77% of Crimean residents (with 83% turnout) and 95.6% of Sevastopol residents (89.5% turnout) voted for the Crimea to become federal subjects of the Russian Federation. However, according to a report from the Council on Human Rights and Development of Civil Society under the President of the Russian Federation “Problems of Crimean Residents, published on April 21 (the authors – members of the Council Alexei Bobrov and Svetlana Gannushkina, and lawyer from the network Migration and Law, Olha Tseitlina), the overwhelming majority of Sevastopol residents voted to join Russian (with a turnout of 50-80%. In the Crimea, however, according to varying data 50-60% voted to join Russia with a general turnout of 30-50%. Moreover residents of the Crimea did not so much vote for joining Russia, as for a stop to what they called “the corrupt lawlessness and criminal onslaught of Donetsk stooges”, whereas residents of Sevastopol voted specifically to join Russia.
For the first time in all the years of independence, the Crimean Tatars were deprived of the possibility of holding their remembrance gathering on May 18 in memory of the victims of the Deportation of the Crimean Tatar People, with this being the 70th anniversary of the Deportation. One can generally conclude that the Crimean Tatars have become the target of political pressure to get them to reject their ethnic and religious identity. In the first days of the occupation more than 3 thousand Crimean Tatars moved to mainland Ukraine, mainly Lviv, fearing and not without justification political repression because of their belonging to non-traditional movements within Islam.
In Donbas demonstrations of pro-Ukrainian views have similarly become grounds for political persecution as a result of which a large number of Ukrainian activists and journalists from Donbas have been forced to move to other regions of Ukraine. Those who remained have been the target of political persecution. Even membership of the parties Batkivshchyna or VO Svoboda have resulted in arbitrary arrests and detention in inhuman conditions as hostages. Cases are known of people being arrested for expressing their view of DPR or LPR in social networks. The exact number of those arrested is unknown, however one can assert that there are over 400 such hostages. Those who risked becoming the target of political persecution included members of electoral commissions for the presidential elections on May 25. The separatists carried out pogroms of polling stations; destroyed property; beat up members of the electoral commissions and even abducted individual heads of the commissions in order to prevent the elections being held. As a result only 15.37% voters in the Donetsk oblast were able to take part in the elections, and 8.94% in the Luhansk oblast. The May 11 referendum in Donbas under conditions of confrontation between the DPR and LPR on the one hand and the Ukrainian authorities on the other, was more like a farce than a political expression of will. It took place only in certain populated areas at specific polling stations. Its results were falsified.
In the other 23 regions of Ukraine the level of political freedom after the victory of the Revolution of Dignity was high. Political discussion, albeit inflammatory, did allow all political forces the possibility to express their views, although it should be noted that the authorities initiated criminal prosecution for expressions of separatism demonstrated in public addresses and in the media. Not only court trial has yet to take place and therefore it is difficult to say how proportionate was the state’s interference in such cases.
The generally high level of political activity fell in eastern oblasts. In the east and south of the country, particularly in Kharkiv and Odessa, peaceful gatherings sometimes turned into fights or even armed confrontations. From our observations, such events were almost always deliberately provoked and looked like special operations prepared in advanced. This was the case, for example, with the events in Odessa at the beginning of May. It should be noted that with the intensification of the military conflict in Donbas public protests became increasingly aggressive, and the animosity between political opponents ever stronger, especially in the street. The nature of peaceful gatherings became increasingly strained and was sometimes accompanied by confrontation between their participants and the police, and mutual accusations of breaches of public order, abuse of force or failure to act. The lack of a law on peaceful assembly has become even more noticeable.
The presidential elections, despite the difficult situation in the country, passed without serious infringement of electoral rights and were found by observers to have been fair and honest.
Legislation pertaining to political rights during this period did not change much although such changes are highly needed. They should bring legislation on political life into accordance with the current political situation otherwise they will become explosive and could lead to a new Maidan.
Observance of civil rights and liberties
The situation with observance of civil liberties differs radically in the Crimea and Donbas on the one hand, and the remaining regions of the country on the other.
Freedom of expression in the Crimea is around about in the same state as in Russia as a whole. The few pro-Ukrainian media or those media which have tried to freely express themselves have largely ceased to exist. For example, the popular Chornomorka has been closed. All Ukrainian television channels were cut off in the Crimea, and only Russian channels broadcast. There remains only one TV broadcaster which provides free discussion – the Crimean Tatar TV and radio company ATR, however it is under constant pressure from the new Crimean regime, in particular with respect to covering the activities of Crimean Tatar leaders. There are also several Internet publications which try to provide reliable information and independent commentary, however they work under the constant threat of repression.
Freedom of religion in the Crimea is under threat. There have been a number of public speeches against Islam and the Orthodox Church of the Kyiv Patriarachate and the number of acts of vandalism against the buildings of these faiths is on the increase.
The situation is worse in Donbas, in the regions controlled by DPR and LPR, including in Donetsk and in Luhansk. Here civil liberties – expression of ones views; peaceful assembly; association, etc. have even effectively dissolved. Journalists not wishing to work in LPR or DPR propaganda publications have been forced to leave Donbas, however they are trying to maintain their local Internet resources from outside, or have begun new projects.
Both in the Crimea and in Donbas there have been many attacks on journalists, threats, beating, destroying their technology; etc.
In the other regions of the country persecution for ones words has stopped, pressure on journalists has disappeared and they feel free. It should, however, be noted that free journalism as a phenomenon is not typical for the Ukrainian information realm as was the case before as well. Most journalists work more like propagandists, than informing about events. This is partly explained by the incredible anti-Ukrainian propaganda in Russia where the Russian media are constantly distorting information; manipulating people’s consciousness and flagrantly lying. Many publications of such a type exist in Ukraine as well. They provide information selectively so as to manipulate people’s consciousness. Therefore Ukrainian journalists and the media as a whole try not to inform of these facts so as not to give opponents material to be used in the information war against Ukraine. For that reason there is limited freedom of information. In conditions of military conflict the government has restricted information being provided about events. This results in numerous fakes in the Internet and social networks.
It is extremely important that the achievements of the revolution are consolidated through legislative level so as to not repeat the mistakes of 2005-2006.
Equality of rights; demonstrations of xenophobia and hatred.
The most serious problems are those with indirect discrimination on the grounds of age and state of health. Concealed discrimination against Roman and against members of the LGBT community remains typically high. All Roma were forced to flee since the DPR and LPR threatened to annihilate them.
Another problem with discrimination has arisen – over citizenship. This concerns Crimean residents who do not wish to take Russian citizenship and want to remain Ukrainian citizens. These citizens under Russian legislation face restrictions on holding official positions in the state and municipal bodies. In the Crimea people are worried that without Russian citizenship it will not be possible to work in state institutions. Moreover, residents off Crimea who reject Russian citizenship will not have the right to Russian pensions, pay and social benefits. A period of only one month from April 1 was given for rejecting Russian citizenship and confirming Ukrainian, and at first only three offices were opened for doing this (Simferopol, Bakhchysarai, Bilogorsk). By the end of April there were 8 such offices. As a result many residents of Crimea were unable to exercise their right to choose citizenship.
Despite the high level of inter-ethnic and inter-faith tolerance which is tradition for Ukraine, the problems that existed in this area exacerbated as a result of the aggressive policy of the Russian leadership. Relations between ethnic Russians and ethnic Ukrainians began getting more and more difficult, especially in the Crimea.
The situation for ethnic Ukrainians and the Crimean Tatar people has seriously deteriorated in the Crimea. Ethnic Ukrainians have become the target of persecution for using Ukrainian or Ukrainian symbols. They have been forced to hide their identity at the risk of violence of pressure, including political, since for the new Crimean regime belonging to the Ukrainian minority automatically means support for Ukrainian unity and its territorial integrity. The Ukrainian language has almost totally disappeared from the information realm in the peninsula. Schools with Ukrainian language tuition have been closed.
The Crimean Tatars are also in a dangerous position and encounter threats and physical attacks. Crimean Tatars are being forced to take Russian citizenship, but they consider that if they agree they could run up against problems with ownership of land and other property; access to education and employment. Some Crimean Tatars belong to religious groups which are considered illegal in the RF and are therefore fearful, not without justification, of politically motivated repression. As a result, more than three thousand Crimean Tatars have left the peninsula, most going to Lviv.
In the east of the country there is mounting intolerance, hate speech and racially motivated crimes against people who identify themselves as Ukrainian and use Ukrainian symbols. This has been seen in the destruction of cars carrying Ukrainian symbols. Euromaidan activists have been labelled ‘Bandera-supporters’, ‘Nazis’ and ‘fascists’. This is a direct result of the total disinformation and lies which are produced on a mass scale by the Russian media. To prevent further escalation of intolerance, it is extremely importance to debunk these unwarranted assertions about manifestations of nationalism, fascism and extremist among Ukrainians and from the Ukrainian government as a whole so that these are not circulated in the world.
The rights of military servicemen
The lack of adequate legal definition of the conflict in the Donetsk and Luhansk oblasts, the understandable reluctance to reject the term ‘anti-terrorist operation’, call this conflict military and impose martial law have led to serious violations of the rights of people taking part in these events. KHPG is dealing with many cases where military servicemen, according to their documents, are considered to be on work-related trips or deemed to belong to some military unit or other. They are therefore unable to prove their involvement in military actions, receive documents confirming that they received injuries (they are issued only with a document saying that they have been treated for a certain illness, but without giving injuries as their cause), etc.
The accusations of desertion are extremely dubious in the case of servicemen who because of intense shelling with ‘GRAD’ missiles from Russian territory were forced to flee for their lives and leave their military posts. Legal formulations need to be sought and introduced which reflect the real state of the military conflict underway, with definition of the legal status of those taking part in it.
Observance of economic, social and cultural rights.
It was a major problem for Ukrainians to exercise their social and economic rights during the period considered. In the country devastated after the Yanukovych regime there was a financial and economic crisis which was further exacerbated by the unexpected expenses on creating combat-ready armed forces and carrying out military actions. Nonetheless the government managed to carry out is main duties with respect to ensuring social and economic rights, and avoided default and the collapse of the economy.
In general all the problems regarding this category of rights could not but remain. The standard of living is continuing to fall, while indicators for relative and structural poverty are, on the contrary, increasing. The subsistence minimum which is the base indicator for the entire system of social security has for many years now failed to reflect the real minimum requirements since it does not include a number of vital expenses and is based on a selection of food items, other goods and services which has long been out of doubt. In addition, to determine the amounts of certain types of social security, an indicator continues to be used for the guaranteed subsistence minimum which reflects the state’s inability at the present time to achieve even lower than the minimum standard of living.
The situation with this category of rights is extremely bad in Donbas in areas controlled by the DPR and LPR. Wages, pensions, etc. are not being paid at all and in many regions there is no water, gas or electricity. The situation is catastrophic for prisoners in penitentiary institutions, who are simply going hungry.
Since the Revolution of Dignity there has been a noticeable increase in government activity in the cultural sphere. The Foreign Ministry and Ministry of Culture are endeavouring to present the best examples of Ukrainian modern art in European capitals, initiating trips by Ukrainian artists with exhibitions, speeches, etc. One can say that for the first time in Ukraine there are signs of a cultural policy in Ukraine, although the generally difficult socio-economic situation in the country is undoubtedly seriously restraining these efforts.
Observance of human rights laws
Unfortunately implementation of laws related to human rights during the period under consideration has become ever more of a problem. The state authorities are refusing to carry out these obligations to people even in cases where these have been confirmed by court rulings. Many norms of laws remain in force regulating social guarantees even though there is public funding for ensuring the guarantees, and the Cabinet of Ministers determines the size and direction of social assistance basing this on the available money. This practice was confirmed back in 2013 by two Constitutional Court rulings and has not changed. The courts do not accept law suits over failure to implement the laws on social guarantees, and with respect to rulings previously handed down, there are instructions to not implement the court rulings. It is extremely difficult to exercise these norms about social guarantees in conditions of effective state of war. An honest solution to this situation would be to divide social guarantees into concessions which can be abolished, and revoke the relevant norms of the laws (like, for example, concessions for “children of the War”), and socio-economic rights which must be implemented with respect to socially vulnerable groups in society. However will the new administrations dare to take such unpopular steps?
The effectiveness of the work of state bodies and specialized institutions aimed at protecting human rights and fundamental freedoms
In general the situation seen in 2010-2013 has remained with a crisis of state institutions aimed at protecting human rights, first and foremost the law enforcement bodies and courts, exacerbated. Enforcement of court rulings remains a major problem, including the rulings of international bodies. The government has not moved far in this sense since the Yanukovych period. The positive potential of the Criminal Procedure Code is not being properly used. What is more, the law enforcement bodies have learned to bypass its norms which in their opinion hinder their work.
Another major problem remains the ineffective investigation into complaints alleging torture and ill-treatment either by police officers or Penitentiary Service staff or with their inaction, tacit consent or encouragement. The prosecutor’s office is extremely bad at carrying out its function of providing an effective, thorough, speedy and impartial investigation into such complaints. The cases of unlawful use of force during the events on Kyiv’s Maidan on 30 November, 1 December and 11 December, as well as the mass killings on 18-20 February have still not been properly investigated. Nor has there been investigation of the abduction of people, the beating of Euromaidan activists in March and April in Kharkiv, Donetsk, Luhansk, as well as other crimes, torture and killing of civilians and soldiers, and other crimes against their life and health, and crimes linked with infringement of property rights.
Terrible crimes in the Donetsk and Luhansk oblasts previously unseen in Ukraine which were carried out by separatists – politically-motivated forced disappearances; extrajudicial executions; arbitrary arrests and torture of hostages; seizure of administrative buildings, etc. , have been against a background of inaction, tacit consent, or worse – help by officers of local offices of the police, SBU and prosecutor’s office. Unfortunately, instead of defending human rights, law enforcement bodies were more often active players in the infringements.
One positive element of this period was the work of the Human Rights Ombudsperson. Staff of the Ombudsperson’s Secretariat have continued introducing national preventive mechanisms in accordance with the Optional Protocol to the UN Convention against Torture, and this mechanism is gradually having impact on the attitude of staff to prisoners and detainees in places of confinement. The Ombudsperson has tried to defend those who have suffered from the actions of separatists, for example, she has played an active role in removing children’s homes from the zone of anti-terrorist operations; in freeing captured soldiers; refuting the lies told by Russian propaganda, etc.
Is it possible to reinstate rights that have been infringed through the courts? Experience of human rights protection provides many examples where with a strong and well-founded legal position, professional representation of the person’s interests in court, consistency and patience, a person can finally have a good chance of upholding his or her rights even under the present corrupt and dependent court system. The information realm is full of such cases. However the mass of human rights violations and unjust court rules is so great that these successful cases simply drown in it and go unnoticed by the majority of the population, with the view prevalent that it’s a waste of time to turn to the court.
Recommendations
The vast majority of rights violations took place, among other things, because of the lack of serious mechanisms of restraint or control of the authorities and lack of legislative guarantees for fundamental rights and freedoms.
It is therefore necessary, despite all the difficulties, to begin without delay reform for the defence of human rights and fundamental freedoms, and undertake in particular the following steps.
1. Draw up a draft Constitution, bringing the sections on the principles of constitutional order, on human rights and fundamental freedoms, on elections and referendums into line with international standards; add a section entitled ‘Civil society’; recognize the jurisdiction of the International Criminal Court.
2. Carry out reform of the criminal justice system on the basis of the concept adopted in April 2008, in particular:
Carry out reform of the prosecutor’s office; adopt the law on the prosecutor’s office which is read for its second reading. Without this judicial reform has no chance of succeeding;
Adopt a draft Code of Criminal Misdemeanours; change at the same time the Criminal Code and the Code of Administrative Offences;
Carry out radical reform of the police based on respect for human rights, principles of rule of law, demilitarization, rejection of politicization and decentralization; increase in accountability and transparency; close cooperation with the public and local communities; professional training of personnel;
Carry out reform of the SBU and other security services;
Carry out reform of the State Penitentiary Service; adopt the law on probation which is ready for its second reading;
Continue the process of creating and implementing juvenile justice.
3. Ensure effective public control over the law enforcement agencies, in particular, via the work of public councils; mandatory consultation with the public regarding specific issues; annual public reports by the SBU, Interior Ministry and other law enforcement bodies regarding observance in their work of human rights. These must include information regarding investigative operations which restrict human rights (illicit searches; wiretapping and monitoring of other communications, etc.), the number of detentions and other operational and investigative activities envisaged by the law; the number of criminal proceedings and number of people who have been informed that they are suspected of a crime, etc.; create an independent body (mechanism) for carrying out effective investigation of allegations of torture by police or penitentiary institution personnel; provide through legislation the possibility of the Supreme Court reviewing criminal cases where there are well-founded doubts with respect to the legality of the verdict.
4. Complete judicial reform, ensuring independence and responsibility of judges, as well as implementation of court rulings.
5. Broaden the scope for free legal aid provided by the state and pass the function of representing the interests of individuals from the prosecutor’s office to this legal aid system.
6. With regard to electoral rights and referendum:
Adopt an Electoral Code;
Change the system of parliamentary elections to a proportional system with open regional candidate lists;
Make amendments to legislation removing restrictions on participation of political parties in the elections, for example, regarding the time of the creation of a party;
Reduce the parliamentary threshold to 3% of the votes;
Adopt a new law on a nationwide and local referendum and other forms of direct democracy, for example, envisaging that the authorities must consider draft decisions supported by a certain percentage of the public;
Provide through legislation effective procedure for withdrawing a mayor or deputies of local councils;
Establish administrative liability of deputies for votes made not with their own card, and make this punishable via ‘community work’;
7. Regarding freedom of association:
Abolish administrative liability for activities of unregistered civic associations (Article 186-5 of the Code of Administrative Offences);
Review tax legislation with regard to the provision of concessions for non-profit-making organizations receiving money from individuals and legal entities to carry out socially important non-profit-making activities.
8. Regarding freedom of peaceful assembly:
Abolish the permission-based procedure for religious organizations holding peaceful gatherings (Article 21 paragraph 5 of the Law on Freedom of Conscience and Religious Organizations);
Draw up and adopt a separate Law on Freedom of Peaceful Assembly regarding definition of the duties of the authorities during peaceful gatherings;
Generalize court practice on restricting freedom of peaceful assembly in accordance with Article 39 of Ukraine’s Constitution and Article 11 of the European Convention on Human Rights;
Revoke Articles 185-1 and 185-2 of the Code of Administrative Offences.
9. In the area of freedom of expression the following action is needed:
Create through law public TV and radio broadcasting based on TV UT-1 and the National Radio Broadcasting Company of Ukraine with guarantees of independence of editorial policy in accordance with international standards;
To ban by law the creation of state media and define procedure for de-nationalizing all state-owned media via privatization by the staff team; their sale or dissolution;
Bring into line with international standards and harmonize between themselves the Law on Information; On Access to Public Information; On Personal Data Protection; and others; then bring any other information legislation into line with these base laws;
Revoke the Law on the Protection of Public Morality;
Revoke the Law on State Support for the Media and Social Protection of Journalists;
Revoke the permission-based procedure for state registration of the printed media;
Dissolve the State Committee on Radio and Television.
10. In the area of social and economic rights the following is needed:
Divide social payments into those which are designated as exercise of socio-economic rights and those which are as a result of holding certain posts or receiving certain privileges;
Stipulate via legislation that social payments which are determined depending on a post occupied or privileges received can be restricted depending on the economic situation in the country;
Ban decreases or failure to provide for the funding of payments aimed at exercising the socio-economic rights of citizens (for example, with respect to the poor, vulnerable groups in society, people with disabilities, etc.);
Place the accent in social policy on targeted assistance for those who need it;
Include NGOs on the basis of equal partnership in the system for provision of social services.
11. In the area of labour rights the following actions are needed:
Draw up and adopt a new Code of Labour Laws, the concept strategy of which must not envisage the employer’s interests taking priority over the interests of employees;
Change the practice of privatization of enterprises without the direct participation of employees in the process of privatization and without participation of employees in a significant share of the property;
Ensure equal rights for all trade unions in the system of control over the activities of enterprises’ administrations in drawing up and passing collective agreements; envisage the appropriate administrative or criminal liability for refusing to register or discriminating against independent trade unions.
Ensure publication of the tax declarations of MPs, local and regional council deputies, mayors, as well as those of public officials in the 1-3 categories of civil servants.
12. Revoke the Law ‘on a Single State Demographic Register and documents which confirm a person’s Ukrainian citizenship, identify a person or their special status’ and stop allocating money for enforcement of this law; draw up new laws regarding documents which identify a person, as well as setting out new procedure for registering a person according to their place of residence.
13. Carry out real reform of the system for registering property rights with open registers of real estate, a land cadastre, etc.
14. Make amendments to legislation on countering all forms of discrimination.
15. Draw up and adopt a Law on Compulsory Health Insurance and implement this system in Ukraine.
16. Establish openness and transparency in the system of health care by monitoring the transparency of tenders and the quality of technical equipment and medicines with public participation.
17. Carry out reforms aimed at implementing the pilot and quasi-pilot judgements of the European Court of Human Rights.
18. Ensure mandatory enforcement of all judgements from the UN Human Rights Committee; the UN Committee against Torture; the UN Committee on the Elimination of All Forms of Discrimination against Women, as well as other UN committees with the competence to consider individual complaints.
19. Ratify the 3rd additional protocol of the UN Convention on the Rights of the Child with this enabling children to lodge individual applications.
20. Ratify the UN Convention on Forced Disappearances.
21. Merge the branch state archives of the SBU, Interior Ministry and others with respect to the archive fund created before 1 December 1991 in the Archive of National Remembrance and include it in the system of Ukrainian archives, aensuring access to these archive funds on the basis of a separate law.