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Human Rights in Ukraine. Website of the Kharkiv Human Rights Protection Group
№01
2012

Monthly bulletin Prava Ludyny (Human rights)

Against torture and ill-treatment

09.01.2012 | Halya Coynash

Betrayal

   

Ihor Indylo                                                               Stephen Lawrence

Prosecutions over the deaths of two young men caught public attention during the first week of 2012. Neither Stephen Lawrence nor Ihor Indylo lived to celebrate their twentieth birthday. Stephen was knifed to death on a London street back in 1993, Ihor died in a Kyiv police station.

Both were initially let down by the authorities.  Now, however, only Ihor Indylo’s memory continues to be betrayed.

On 4 January 2012 a British court convicted two men of murdering 18-year-old black British schoolboy, Stephen Lawrence.  The two had been members of a racist youth gang and together with three others attacked Stephen at a bus stop. There was strong evidence against the youths, yet a whole range of police errors led most people to believe that the murderers had evaded punishment.

Thus far, aside from the racist motive which nobody was denying, there is little that could surprise Ukrainian readers.

Stephen’s death and the failure by the police and court to bring his killers to justice caused outrage and consternation in the UK.  This prompted an inquiry and measures within the police to counter racism, as well as determination to bring the killers to justice. 

New, more sophisticated DNA tests helped to arrest and, last week, convict, two of the original suspects. So too did public shame at the injustice done. And awareness that impunity breeds still greater impunity and endangers us all.

The case of Ihor Indylo, a young student who died during the early hours of 18 May 2010 in the Shevchenkivsky District Police Station in Kyiv, is also usually considered high-profile. The police were stopped from concealing the death of a perfectly healthy young man in police custody by journalists from TV 1 + 1. Faced with widespread public anger, the Prosecutor’s office initiated a criminal investigation. Soon President Yanukovych ordered the Prosecutor General to take the case under his personal control and “get to the bottom of the [young man’s] death”. Not just any old how, but “in the shortest timescale possible”. In front of TV cameras he met with Ihor’s mother and promised an “objective investigation”.

Away from the cameras, the police continued to push their story about how Ihor had supposedly fallen from a bench in the cell, hit his head, this causing his death. They tried to cite childhood injuries to explain Ihor’s death. The Ukrainian Helsinki Human Rights Union also reported efforts to put pressure on witnesses. Judging from the testimony in court of the friend who arrived at the police station with Ihor, in at least one case the pressure was highly effective. The young man was clearly too frightened to disagree at all with the official police line (which is placed in question by video footage).

So what did the Prosecutor General’s “personal control” consist of? There were some stern words as well as a reprimand to subordinates for allowing the posting on the Internet of video footage from Ihor’s last hours. .And there was the action of the Prosecutor’s Office in getting a spring 2011 court ruling which had ordered further investigation into the cause of Ihor’s death overturned.

Ihor’s death was thus not part of the case, with Serhiy Prykhodko and Serhiy Kovalenko charged only with “exceeding authority” and “professional negligence”. Prykhodko was tried over the unlawful nature of Ihor’s detention while Kovalenko was accused of not having checked the grounds for the detention.  Kovalenko was amnestied on 23 December, while on 5 January Prykhodko received a 5 year conditional sentence.

The public are confronted yet again with empty promises from those in power and the futility of widespread public outrage.

In England on 4 January the Metropolitan Police suggested that the other suspects should not rest easy in their beds. One can now believe them.

What then in Ukraine where those guilty of torture and murder remain in their posts and where trials turn into a bitter mockery of the victim?

We are left with shame before Ihor Indylo and his parents.

Shame and fear, since each case of impunity for police who kill and torture can result in new outrages. 

Against torture and ill-treatment

12.01.2012

Trial of police officers over death of Yevhen Zvenigorodsky continues

   

On 11 January hearings continued in the trial of three police officers – B. Tsykhmystro, A. Marchenko and A. Lazarev over the death of 32-year-old Yevhen Zvenigorodsky from Kharkiv.  The three are charged with unlawfully detaining Mr Zvenigorodsky (under 365 § 3 of the Criminal Code - exceeding power or official authority with grave consequences -  while B. Tsykhmystro is also charged under 121 § 3 - deliberately inflicting bodily injuries with elements of torture. Both articles of the Criminal Code carry sentences of from 7 to 10 years.

The Kyivsky District Court heard the conclusions from forensic examinations and watched video footage from the regional police department. The forensic tests found that Mr Zvenigorodsky died from a stomach injury, and that he had been beaten no later than 5 hours before his death.  This, according to Ihor Davydov, the lawyer representing Mr Zvenigorodsky’s family means, that the injury was inflicted when he was already in the police station.   He says that according to the examination, Yevhen Zvenigorodsky had a large number of injuries over his entire body. The cause of death was haemorrhaging as the result of no less than four blows to the stomach.

According to Vitaly Adonin, Yevhen’s friend who was also detained, the beating continued in the car. He says that during the interrogation, Yevhen Zvenigorodsky complained that he was feeling bad, but the police did not call an ambulance.  It was only when his state seriously deteriorated that they took him out into the park and left him on a bench. An ambulance was called by patrol officers, but it was too late to save him and he died on the operating table.

The lawyers representing the defendants assert that Yevhen Zvenigorodsky received his injuries before he arrived at the police station.

Tsykhmystro is charged under two articles of the Criminal Code –and The other two are accused of exceeding official authority with grave consequences.

As reported, at the end of March 2011 a man was found in a grave condition on a city square in Kharkiv, near a police station. It transpired that 32-year-old Yevhen Zvenigorodsky had been detained by police, together with another man, Vitaly Adonin. 

New information from http://atn.ua/newsread.php?id=71705

Against torture and ill-treatment

17.01.2012
source: umdpl.info

2011 Black Calendar of Deaths in Police Custody

   

The Association of Ukrainian Human Rights Monitors on Law Enforcement has compiled a harrowing report on death in police custody during 2011. Of the 35 deaths, 7 people hanged themselves, and 5 jumped from windows. The Association writes that the public view these deaths as having been caused by the actions or inaction of law enforcement officers.

January

1          A young man, born 1981, hanged himself outside the Sviatoshynsky Police Station in Kyiv.  His father considers police officers there to be responsible.

2          A man threw himself from a fourth floor window of the Loziv Police Station in the Kharkiv Region, and died of his injuries.

3          A woman, born 1974, also died after throwing herself out of a fourth floor window of the Loziv Police Station in the Kharkiv Region
4          A Georgian national died in a Kirovohrad region police station.

5          A detainee hanged himself in a room for detainees in the Oleksandrivsky Police Station in the Kirovohrad Region.

6          A man born in 1971 died in a temporary holding unit in the Makiyivka Police Station in the Donetsk Region.

7          A 37-year-old man serving an administrative sentence for petty hooliganism died in the courtyard of one of the district police stations in the Zhytomyr Region.

February

8          A 52-year-old suspect died in one of the police stations in the Zhytomyr Region.

9          A detainee died in the investigator’s office of the Sviatoshynsky Police Station in Kyiv.

10       A 33-year-old, detained for petty hooliganism, killed himself in a temporary holding unit at the Vradiyivsky Police Station in the Mykolaiv Region.

March

11       A 37-year-old suspect committed suicide by throwing himself out of a fifth floor window during a reconstruction of the circumstances of the crime in Yevpatoria, Crimea.

12       A young woman who had been refused an urgent doctor call hanged herself in a temporary holding unit of a police station in Yevpatoria, Crimea.

13       A 38-year-old woman under administrative arrest died in a temporary holding unit in Lokhvytsya, Poltava Region.

14       A 32-year-old man was taken by police to the Kharkiv Regional Central Department of the MIA where he was beaten. He died in hospital from his injuries.

April

15       A 48-year-old man died after not being given medical assistance in a room for detainees of a police station in Enerhodar, Zaporizhya region. According to the doctors, the police had refused to take him to hospital.

16       A 29-year-old man hanged himself in a temporary holding unit in the Myronivsky Police Station in the Kyiv Region.

17.      An 18-year-old man was detained by police officers in Vinnytsa. He was not seen alive after this, and later his body was found in a river.

18       A 52-year-old man died in a temporary holding unit in Cherkasy.

May

19       Luhansk traffic police pursued a young man on a moped for a long time, with this causing an accident and the death of the young man. Instructions from the MIA categorically prohibit pursuit of people on two-wheel vehicles not wearing helmets.

20       A 38-year-old man who had repeated alleged torture by Kharkiv Department for Fighting Organized Crime officers, committed suicide in the Kharkiv SIZO [remand unit].

21       A 42-year-old man was detained on suspicion of committing a crime and taken to the Dniprovsky District Police Station in Kherson where he suddenly died while giving evidence.

22       A 27-year-old man died in a temporary holding unit in the Brovarsky Police Station in the Kyiv Region.

23       A 29-year-old man threw himself out the window of the third floor of the Leninsky District Police Station in the Dnipropetrovsk region and died of his injuries.

June

24       A 59-year-old man died during questioning in the Khortytsa District Police Station in the Zaporizhya Region.

25       Human rights activists allege that on 11 June police killed a detainee, born 1975, at the Obolon District Police Station and then left his body in the flat where he had been living.

26       In Kryvy Rih, Dnipropetrovsk Region, a 46 year-old man arrested on suspicion of murder hanged himself.

27       On 27 June in a temporary holding unit a 44-year-old detainee died. He had complained of feeling ill, but had not been sent to hospital.

July

28       On 1 July a 22-year-old man sentenced to 3 and a half years imprisonment hanged himself on a sheet in the temporary holding unit of the Ivano-Frankivsk Police Station.

September

29       On 8 September a 33-year-old unemployed man detained on suspicion of theft and unwarrantedly held for over 13 hours hanged himself on the window grating of a district police station in Khmelnytski

30       On 6 September a 46-year-old man detained on suspicion of selling drugs died in the temporary holding unit of the Shevchenkivsky District Police Station in Kyiv.

31       On 15 September a 41-year-old local resident suddenly died in the Gagarin District Police Station in Sevastopol after being called to give testimony.

32       On 18 September after talking with police officers in his flat, a 38-year-old man threw himself from the fifth floor and died of his injuries.

October

33       On 22 October a 31-year-old man from the Myrhorosk District in the Poltava Region died in a cell of the temporary holding unit of the Myrhorod Police Station. The police claim he died of a seizure.

34       On 27 October a young man, born 1988, who had alleged that police officers in the Kostyantynivsky Police Station in the Donetsk Region had beaten him, died in hospital. The police claim that he died from drugs.

November

35       On 27 November during the forced dismantling by police and Emergencies Ministry officers of a tent in which former Chornobyl clean-up workers and supporters were on hunger strike, .70-year-old Gennady Konoplyov. Witnesses assert that he suffocated after the tent was brought down, with police and Emergencies Ministry officers walking over it.  Neither ministry has accepted any blame. 

The right to a fair trial

31.01.2012

Court ignores PACE, refuses to release Lutsenko

   

The Pechersky District Court in Kyiv under presiding judge Serhiy Vovk on Monday refused to release former Internal Affairs Minister Yury Lutsenko from custody despite the 26 January Parliamentary Assembly of the Council of Europe Resolution.

Lutsenko’s defence lodged the application on Monday citing both the former Minister’s deteriorating health and the resolution which is unequivocal regarding prosecution of former government officials.

The only acknowledgement of the seriousness of the PACE Resolution came in the fact that Vovk and the other two judges retired for a time to the consulting chamber. Serhiy Vovk has over the last year and a month since Lutsenko was taken into custody repeatedly rejected applications for Lutsenko’s release, and not always after such consultation.

Judge Vovk, after returning, asserted that Lutsenko’s detention was in accordance with current legislation, that he had no report of a deterioration in Lutsenko’s health and he saw no grounds for changing it.

With regard to the PACE Resolution he said that “Ukraine’s Constitution guarantees inviolability of the court, and prohibits pressure on it in any form. It makes no different which body this is from or how this pressure is brought to bear”.

The Resolution states for example:

2.       The Assembly expresses its concern with regard to the criminal proceedings initiated under Articles 364 (abuse of office) and 365 (exceeding official powers) of the Criminal Code of Ukraine against a number of former government members, including the former Minister of the Interior, Mr Juriy Lutsenko, the former Acting Minister of Defence, Mr Valeriy Ivashchenko, and the former first Deputy Minister of Justice, Mr Yevhen Korniychuk, as well as the former Prime Minister, Ms Yulia Tymoshenko.

In this respect, the Assembly asks the President of Ukraine to consider all legal means available to him to release these former government members and to allow them to compete in the upcoming parliamentary elections. It considers that strict international standards delimitating political and criminal responsibility need to be developed.

4.         The Assembly regrets the numerous shortcomings noted in the trials against former government members and considers that they may have undermined the possibility for the defendants to obtain a fair trial within the meaning of Article 6 of the European Convention of Human Rights (ETS No. 5)

10.       The Assembly notes with concern reports that the health of the former Minister of the Interior, Mr Jurij Lutsenko, and of the former acting Minister of Defence, Mr Valeriy Ivashchenko, who are in detention on remand, is rapidly deteriorating and that both of them need medical treatment outside the prison system. The Assembly asks that both men be released at once for humanitarian reasons pending the outcome of their trial, also in view of its concerns regarding recourse to detention on remand in Ukraine.

New information from UNIAN

The right to a fair trial

01.02.2012
source: dif.org.ua

PACE Resolution: sanctions without repercussions?

   

On January 26 the Parliamentary Assembly of Europe (PACE) approved with a majority of votes its resolution on the functioning of democratic institutions in Ukraine.

In the document Europe’s parliamentarians expressed their concern about judicial processes against former members of government in Ukraine, criticized the principles of functioning of the judicial and law enforcement systems, presented their observations to the new electoral law and envisaged the possibility of imposing sanctions on Ukraine should the latter fail to meet the requirements of PACE.

While opposition politicians and the overwhelming majority of experts assessed this resolution as extremely critical, representatives of government consider the document a victory for Ukraine.

To what extent does the PACE resolution reflect Europe’s attitude towards Ukraine?  Is it worth expecting that the Ukrainian government will meet the requirements of PACE?

Stick without a carrot

The reputation of Ukraine in the Council of Europe, which it has been a member of since 1995, was seriously tarnished over the half year that the country chaired the Committee of Ministers of this organization in 2011.

The situation became particularly complicated after Yulia Tymoshenko was sentenced to 7 years in prison, which confirmed that the judiciary in Ukraine is politically motivated. It then became quite clear that the tonality of the future PACE resolution on the state of affairs in Ukraine would be highly critical.

Clearly, the Ukrainian delegation replaced its representative on the PACE monitoring committee in order to soften the text in the resolution. Indeed, Serhiy Holovatiy was replaced by Yulia Lyovochkina, who is considered much more loyal to the current ruling power. It was this committee that was responsible for drafting the resolution on the state of affairs in Ukraine.

Despite this, such a transposition did not allow representatives of the ruling Party of Regions to profoundly change the text in the resolution. Moreover, the day before the document was reviewed at the PACE session a provision was added to the

resolution about the possibility of sanctions being imposed on Ukraine, which was obviously an unpleasant surprise to the Ukrainian government.

Such a tactic of the Ukrainian delegation was clear testimony that the government of Ukraine does not understand the basic principles by which PACE works. Instead of eliminating any grounds for criticism inside the country, Ukraine’s delegation attempted to change the text in the resolution right before it was approved. Whatever the case, the majority of PACE members were dictated in their decision not by the lobbyist arguments of representatives of the Ukrainian delegation, rather by their own understanding of the internal political situation in Ukraine.

As the text of the resolution showed, such understanding was extremely unpleasant for the leadership of Ukraine. The small approved section of the resolution was more reminiscent of a show of courtesy, while the overwhelming majority of the text directly pointed out to the Ukrainian government its mistakes and urged it to correct them.

The most alarming signal was the demand that Yulia Tymoshenko and other opposition politicians be released from prison and that they be guaranteed participation in the future parliamentary elections free of any obstacles. The appeal to reform the judicial and law enforcement system, including the decriminalization of articles 364 and 365 of the Criminal Process Code (CPC) in order to guarantee the plaintiffs and defendant equal rights, was an equally devastating blow to the Ukrainian side.

The third serious warning signal that PACE sent out was recommendations to revise the new laws on the election of MPs, namely to lower the passing barrier into the parliament and lift the ban on party blocs participating in the elections

Finally, the most unfortunate warning for Ukraine in this situation is that if it does not fulfill the demands put forth by PACE it risks becoming the victim of sanctions, a warning it has been given for the first time.

Accordingly, Ukraine has ended up between a rock and a hard place. Unlike the resolution of the European Parliament, the message sent out by PACE does not contain any direct stimulus to Ukraine to accelerate the process of signing the Association Agreement with the European Union. At the same time, PACE let Ukraine understand that refusal to play by the established rules could be subject to appropriate punishment, for example, suspension of the authority of the Ukrainian delegation in the organization

Exercise in futility

On the other hand, any politician well aware of European realities understands perfectly well that fulfilling the requirements and recommendations of PACE is an integral condition of harmonization with the EU. This is precisely what the Ukrainian government must understand: if Ukraine truly wants to sign an agreement on association with the EU, it must factor in the standpoint of PACE.

Aside from that, so far there are not notable signals that show the desire of the Ukrainian government to heed the wishes of PACE. First of all, the Ukrainian side is traditionally trying to present the critical resolution of PACE as a true achievement for Ukraine through the statements of the country’s Ministry of Foreign Affairs. But such a stance directly points to the refusal of Ukraine’s leadership to take into account all the observations made in the PACE resolution.

Besides that, the reaction of President Viktor Yanukovych to the approved document was quite telling. At the World Economic Forum in Davos, Switzerland the president initially said he would take into account the PACE recommendations regarding amendments to articles 364 and 365 of the CPC. But then he placed the entire burden of responsibility on the Ukrainian parliament, thereby making it clear that the notion of decriminalization of these articles can be confidently laid to rest.

So, the review of the newly revised version of the CPC that the president submitted to the VR should be the most telling reaction of Ukraine to the PACE resolution. Clearly, it is too early to speak of the document’s final content, but right now one can foresee the nature of its adoption with a high degree of probability.

First of all, the instructions of the Presidential Administration for the urgent review of this bill indicate that once again all amendments that are undesirable for the government will be rejected, which will have an extremely  negative repercussions on the content of the resolution.

Secondly, it is highly probable that all efforts of the Ukrainian government to fulfill the requirements of PACE will end with the approval of the CPC. This, in turn, means that those practices of the Ukrainian justice system that were given negative assessments by PACE will not be abandoned seeing as changes to one code will not be sufficient for implementing true reform in this sphere, particularly taking into account the traditional problem in Ukraine of compliance with laws exclusively with the aim of reaping political benefits.

All other requirements of PACE will most likely be ignored. First and foremost, this applies to the fate of imprisoned opposition members: clearly the chances that they will be released before the next parliamentary elections are slim to none and this is directly the opposite course to the one the Ukrainian leadership would take to preserve its power at all costs.

The situation with the law on the elections is similar: it will not be the articles on the minimum barrier for winning a seat in the parliament and the ban on participation of electoral blocs that will be the subject of review. Instead, it will be the provisions in these articles that at the moment serve as a safety device against vote-rigging, which is why they are an obstacle to the aim of the ruling power to win a stable majority in the new convocation of the parliament. If the government agrees to change the electoral system, it will not be with the aim of strengthening party pluralism set in the PACE resolution. On the contrary, the ruling power believes such changes bring it victory in the elections.

Conclusions

In closing, the PACE resolution on the democratic development of Ukraine was the most critical assessment in recent years and for the first time envisaged the possibility of sanctions being imposed on the country in the event that it fails to meet the requirements set by the European body.

Hoping that the Ukrainian side will heed the key observations made in the resolution is wishful thinking. Indeed, the possibility that the campaign of persecution of political opponents through the courts will continue, the judicial system and law enforcement bodies will remain under the control of the president and the system of election to the Verkhovna Rada will remain as unfavorable as it was for the renewal of the parliament is quite high.

Finally, the announced intention of the head of state to take into account the recommendations of PACE regarding the approval of a revised edition of the CPC raises many questions. The fact is that without proper discussion as to their content and a change in the government’s attitude towards the principle of supremacy of law, such an initiative will not produce any tangible result

The Democratic Initiatives Foundation 

Freedom of expression

12.01.2012

Ex-ua on why it blocked spoof on Yanukovych

   

The file exchange resource Ex.ua blocked a clip from TV Channel TVi showing a spoof on Viktor Yanukovych’s New Year greetings because it did not want, it says, to fuel political discord. .

Spokesperson for Ex.ua, Yuris Piskovy told the website AIN.ua that the clip’s public access had been restricted at their own initiative. “Such clips arouse a mixed reaction from our users. Discussion spills into intense polemic and thousands of comments. However we consider it unacceptable to exacerbate political disagreements. We don’t want to turn an entertainment resource into a platform for campaigning, propaganda and political discussions.

“We follow such principles not only with regard to politics, but also regarding religion, and also material banned by the Public Morality Commission”.

TVi General Director Mykola Knyazhytsky commented on Facebook as follows:

“It’s interest, the main very talented and high-quality pirate resource in Ukraine has spoken of values. Since if you are involved in pirating, you can’t have conflict with the authorities. That’s how our system works: a criminal won’t pull another criminal’s eye out”.

The most popular information storing service in Ukraine planned the placement of the video clip for public access, changing its status to private access. They cite 2.3.6 of the General Rules on Posting Information which bans the posting of items which contain any direct or indirect expressions insulting the State and its sovereignty, the government and state symbols. 

Freedom of expression

18.01.2012

Protest over sacking of “Segodnya” Chief Editor Ihor Huzhva

   

Following the conflict at the newspaper “Segodnya” owned by billionaire Party of the Regions MP Renat Akhmetov which broke out in early December, on 17 January the supervisory council announced its decision to dismiss the Chief Editor Ihor Huzhva, while the General Director of the holding Segodnya Multimedia is to leave of her own volition. Ihor Huzhva is planning to appeal against the dismissal, while Olena Hromytska has filed a civil suit against him.

As reported, journalists from the newspaper threatened in early December to go on strike, accusing the new Director General Olena Hromnytska of trying to censor the content on the Internet site and the printed version of the paper and to publish commissioned articles.

They stated then:  “It has become usual practice to remove, on Hromnytska’s direct instructions, material from our site regarding various figures, for example, the Mayor of Odessa Oleksy Kostusev, the President’s Adviser Hanna Herman. There has been pressure on the Chief Editor of Segodnya to avoid the appearance of “inconvenient” publications regarding specific politicians and businessmen. At the same time articles have begun to appear as editorial material which were previously published as advertising material (the latest example was businessman Dmitry Firtash’s speech to the Congress of Employers)”.

On Tuesday 17 January just over half of the Segodnya editorial team issued a signed statement protesting against the dismissal of Ihor Huzhva. They are convinced that the dismissal is unwarranted with no justification having been provided, and the dismissal not having been agreed with the trade union.

They consider his dismissal to be an “act of reprisal against the Chief Editor of the newspaper because of his principled stand upholding the interests of the team and over fighting corruption and censorship in the newspaper.”

They ask Renat Akhmetov to take regulation of the situation under his personal control and hope that Ihor Huzhva will return to his position.

Ihor Huzhva has told Ukrainska Pravda that he was dismissed for revealing the censorship structure.  He says that they presumably managed to convince Akhmetov that he was a dangerous rebel although in fact, he asserts, he tried to uphold the principles which SKM [the media holding) officially declares in respect of the newspaper.

“For example, next week our joint project with New York Times is coming out: “Ukraine and the World: 2012 Global Agenda”. Representatives of New York Times will be coming. It’s not clear how they will explain to them what’s going on in the newspaper.

Ihor Huzhva says that the problems began in April after publication about a flight over Mezhyhirya [the reportedly sumptuous mansion resided in by President Yanukovych which, despite promises, he has only ever shown a selected part of to a selected few journalists – translator].  “It elicited a sharp reaction from members of the supervisory council. I was asked who had commissioned me and how much they’d paid me. I demonstrated that this was not the case and that on the contrary it had been extremely high-class material”.

He says that things went quiet for a while but then in May 2011 somebody called Mikhail Batyh turned up and he began trying to make changes to editorial materials. He could, for example, order that a photo be removed, saying that Hanna Herman (Advisor to the President) had not liked it.

Mr Huzhva goes on to describe a number of other alleged cases where attempts were made to censor material.

From information at Telekritika and Ukrainska Pravda  - Photos reproduced from Ukrainska Pravda, which says that Segodnya produced the best photos of the President’s residence

Access to information

16.01.2012
source: gazeta.ua

New draft law may place post-War archives at threat

   

The Verkhovna Rada last Tuesday voted on a draft bill on amendments to the Law on the National Archive Fund and Archival Institutions”. The bill was passed in its first reading, with 261 votes out of the 389 registered.

The bill proposes introducing a norm which would ban removal from the archives of confidential documents or material containing secret information for political or ideological reasons, as well as any documents created before 1946.

Director of the National Memorial Museum of Victims of the Occupation Regimes “Tyurma na Lonskoho” in Lviv, Ruslan Zabily explains that at present there are several laws which can be freely used by archive staff. These are the Laws on Information; on Access to Public Information; and the Law on the National Archive Fund and Archival Institutions. He says that their authority needs to be clearly delineated in order to exclude mutually exclusive or contradictory treatment.  For example, you have the apparently ban on restricting access to information which is of public significance, while on the other you need special permits to see archival criminal files held in the enforcement bodies’ archives which were not and are not considered secret. Why have such bureaucratic obstacles?  There are a lot of such issues which need to be resolved, and real changes, not merely cosmetic, are needed,  Mr Zabily says. He adds that it is useless to expect that the present government will show any interest in improving access to the archives.

He also fails to understand what the significance of 1946 is, and says that the draft law would mean that documents created after this arbitrary date could be in threat.

He is concerned about access to archives. “I’ve seen how archives in neighbouring countries work and must note that the level of access to information in them is much better both for researchers and for members of the public. It would therefore be good to bring the legislative base and work of the archives up to European standards, and not think up new norms which make the work of researchers and other interested individuals more difficult”.

Ukrainsky Tyzhden also mentions that the draft law proposes to restrict access to personal files up to 75 years. 

Access to information

27.01.2012 | Halya Coynash

Constitutional Carte Blanche for Corruption and Censorship

   

Ukraine’s Constitutional Court (Photo from Radio Svoboda)

Ukraine’s Constitutional Court has passed a real gem of a judgement – one of inestimable value to corrupt officials precisely because that value need now never be disclosed.

The judgement in question, dated 20 January 2012 and made public on Tuesday effectively prohibits disclosure of any information about a public official or politician and / or their families, including about their financial circumstances, without their consent. 

The judgement (interpreting Articles 32 § 1 and 34 § 3 of the Constitution defines confidential information.  This, it states, is “information about the personal or family life of a person and / or data about their property or non-property relations, circumstances, events, relations etc, linked with the person and members of their family, with the exception of information envisaged by law, concerning the use of official powers by a person holding a post linked with carrying out state functions or bodies of local self-government”.  Its list, incidentally, is not exhaustive, making attempts to foresee likely prohibitions even more difficult. Any gathering, use or circulation of this confidential information without their consent shall be considered intrusion into their personal and family life. “Such intrusion is permitted solely in cases set out in law, and only in the interests of national security, economic prosperity and human rights”.

As with the highly dangerous Personal Data Protection Act adopted despite strong protest from human rights, media and business organizations and in effect since the beginning of 2011, the judgement is full of references to international conventions, etc.  In fact, it flies in the face of European Court of Human Rights case law and good practice on fighting corruption.

Since the Constitutional Court’s judgement is final, and the Constitution has the highest legal force in the country, other laws may be amended, including the law demanding that income declarations be submitted not only by public officials, but also members of their family. This is widely recognized as a vital element in fighting corruption. The Court’s judgement, however, can probably now be cited by relatives as grounds for not providing the declaration.

More importantly, journalists who choose to investigate the often flagrant discrepancies between official declarations and the actual circumstances in which officials and their families live have now effectively been silenced.  Journalists  who, for example, presented grounds for disbelieving the extraordinary modest amounts given on the declarations of Kharkiv’s Governor and Mayor could conceivably face anything from a substantial fine to a term of imprisonment of up to 3 years. The possible sentence for a repeat “offence” is up to 5 years.

It could, and probably should, be argued that divulgence of a lot of the information now hidden by the Constitutional Court magic wand from the public is “in the interests of economic prosperity and / or human rights”.  Lack of transparency and openness leads to corruption and therefore hampers economic development, while in no way serving the cause of equal rights, fair court proceedings and other fundamental rights. In today’s political climate, the chances of convincing a court of this in Ukraine are remote. They are considerably higher in the European Court of Human Rights but that takes time and effort, and the brutal truth is that many journalists are much more likely to remain silent and avoid trouble.

The clear advantage to informing the public of dodgy tenders, secret deals or of officials living it up at the taxpayers’ expense, etc hardly needs to be spelled out.   On the same day that the judgement was announced, Ukrainska Pravda published details of a response from the President’s Administration to their information request.  The President’s staff cited the Personal Data Protection Act as grounds for not revealing which public officials living in the luxurious government residential areas “Koncha-Zaspa” and “Pushcha-Volchytsa” receive substantial rebates on communal charges. They did however divulge that 50 million UAH is envisaged in the 2012 budget just for upkeep of these areas.

Since the same Constitutional Court saw fit recently to declare as constitutional a law allowing the Cabinet of Ministers to override existing laws and determine the size of many social payments depending on available funds, it is perhaps not surprising that members of the government do not wish the public to know about benefits they have no wish to renounce.

It is much more disturbing that the Constitutional Court is passing judgements which may please those currently in power but which place freedom of speech, the right to information and any measures to combat corruption in jeopardy.

Human rights protection

24.01.2012 | Yevhen Zakharov

Human Rights in Ukraine – 2011: More and More Violations

   

If between 2005 and 2009 we reported that government policy on human rights was ineffective, unsystematic and chaotic, today we are forced to state that during the last two years there has been no such government policy at all, and human rights are not a priority for the leaders of the country.  We have seen virtually no positive action by the authorities and administration aimed at enabling citizens to exercise their rights, while there are more and more infringements of human rights and fundamental freedoms

This overview briefly examines only some of the tendencies which emerged in 2011 and seem most dangerous for human rights – the drop in the standard of living of a major part of the population; political persecution of the opposition and civic movements with the use of the courts and law enforcement bodies; disregard for judicial independence and interference in court proceedings; and brutality of criminal law policy.

Increased poverty and social inequality

The situation with the government’s safeguarding of social and economic rights is catastrophic. The 36 billion UAH payment deficit as of the end of 2011 indicates the government’s inability to fulfil its economic commitments. And although the government declares a 2.3% fall in poverty in 2011 through a 25% increase in the subsistence minimum, an increase of over 12% in the average pension and 10% increase in the real wage, these are deceptive statistics. They are based on an increase in GNP per head of population, but do not take into account the average Ukrainian’s buying capacity, while the subsistence minimum does not envisage many necessary expenses, for example, the cost to the average Ukrainian of sending a child to kindergarten, of education, medical services etc. The subsistence minimum, which is the criterion for establishing the level of remuneration for work and social payments, is still established on the basis of a selection of food items, goods and services approved 11 years ago in a resolution from 14.04.2000 (No. 656). During the period which has elapsed since then the selection has not once been reviewed whereas according to Article 3 § 1 of the Law on the Subsistence Minimum, it should be reviewed at least every five years. Furthermore, against a background of increasing consumer prices in Ukraine over recent years, the subsistence minimum is excessively low. This in turn makes the size of pensions, wages and assistance for the poorer groups in society too low and reduces the population’s real income.[1]

Assessments from trade unions, sociological research from the Ukrainian Social Research Centre; the International Sociology Institute; the Razumkov Centre; the Democratic Initiatives Centre and others research establishments, on the contrary, indicate a rise in poverty. At present one quarter of Ukraine’s population are considered poor.[2]  85% of Ukrainians, in order to survive, were forced to economize on food, holidays, recreation and clothing. The average pay around the country is 2.5 thousand UAH which indicates an increase in the divide between rich and poor and assault on small and middle-level business, and a weakening of the middle class which should form the base and dynamic force of economic development.

The issue of poverty also concerns the public sector. Those classified as poor include the educated, qualified and full-time employed groups in society (people working in public sector institutions and organizations, education, cultural, scientific, medical, social workers, civil servants, engineers etc). Low salaries and pensions combined with rapidly increasing prices and tariffs make it impossible for them to provide the basic necessities for their families[3]

Yet even such a low, sometimes less than minimum wage is paid with delays, both to non-State workers and to people in the public sphere. For example, as of 1 October 2011 wage arrears came to 1, 180 UAH.[4] There is a steady trend towards increasing wage arrears.  

In these conditions the government has adopted a harsh policy on suspending or reducing social payments for former Chornobyl clean-up workers, Afghanistan War veterans, children and others, and in response to protests has effectively resorted to political persecution. Despite the Constitutional Court judgement in 2007 (in the case of citizens’ social guarantees[5]) which stated that rights cannot be suspended as opposed to privileges, the government demonstratively suspended implementation of social guarantees in the 2011 budget law.  Furthermore Item 4 of the Final Provisions of 2011 Law on the State Budget gives the Cabinet of Ministers the right to establish the procedure and amounts of social payments based on available financial possibilities. The Cabinet of Ministers immediately arranged that pensions should be calculated without taking into account court rulings. This elicited mass protests from former Chornobyl clean-up workers, Afghanistan War veterans, “children of the War” and other groups in society throughout the country, and is creating the threat of an intensification of confrontation between the protesting groups and the law enforcement agencies. One person has already died in Donetsk as a result of this confrontation – 74-year-old retired miner Gennady Konoplyov.

The government says that there is no money in the budget to cover social payments at such a level, and an analogous norm for management of social payments by the Cabinet of Ministers has been added to the 2012 budget. Yet such actions by the government look particularly indecent given the incredible amounts spent on maintaining the President, parliament, Cabinet of Ministers, as well as other parts of the State apparatus which overall exceeds the budget allocations for social payments in 2011 by 3 billion UAH. Procurement of expensive cars, pearl baths, gold toilets, travel around the country on chartered flights, etc – all of this strengthens public opinion that those in power are corrupt, that there is money in the public coffers, only it won’t be given, but will be channelled to meet the needs of high-ranking officials, not citizens. We would note that there are almost no attempts to curb professionally-linked concessions with these in the main remaining.

The government’s policy on social payments was backed by the Constitutional Court which in its judgement of 26 December 2011 found Item 4 § 4 of the Final Provisions to the 2011 Law on the State Budget constitutional. This CCU judgement effectively prevents Ukrainians from upholding their social guarantees in the amounts set down in the relevant laws through the courts. It would be interesting to know whether the Constitutional Court judges would agree that the Ukrainian state cannot be called law-based or social.

The Constitutional Court based its judgement on the principle of proportionality between the need for social protection and the financial capacity of the State. Of course the amounts of payments on the basis of social factors to over 13 million people, and professionally linked payments to 3.2 million people are an impossible burden for the budget. Yet to pass such a judgement it was necessary to first get rid of the relict of socialism in the Constitution of declarative promises of social guarantees for all, to introduce a principle of proportionality into it, and then one could seriously consider this judgement. The main issue in this had been effectively discarded that being differentiation of benefits and privileges and social and economic rights, while the narrowing of the content and scope of rights is prohibited by Article 22 of the Constitution. For example, the payments to former Chornobyl clean-up workers are in implementation of their right to social protection. When young solders and servicemen were sent in 1986-1987 to clean up the aftermath of the Chornobyl Nuclear Disaster, nobody asked for their consent, while they returned with serious health problems. The state must under all circumstances provide them assistance as compensation for their damaged health, and, often, shattered lives. Payments to rehabilitated victims of political repression are not concessions, but compensation which the state is obliged to pay for the years of imprisonment in terrible conditions on the basis of unlawful sentences. Such payments cannot be cancelled or reduced “on the basis of the government’s financial capacity”.

In this context one must mention the discriminatory pension reform passed in 2011 which resulted in a reduction in current pensions.

Political persecution of the opposition and civic movements

The 26 December Constitutional Court judgement supposedly put an end to the legal argument. However the flagrant injustice of a decrease in the scope of social rights in spite of current laws for former Chornobyl clean-up workers and some other layers of society determines and will continue to arouse their wide-scale protests. Instead of reconsidering its policy, avoiding methods of force against the protesters and moving towards dialogue, the government is trying to intimidate protesters, using the law enforcement bodies – the MIA, SBU [Security Service], and Prosecutor’s Office. This tendency – of using the law enforcement bodies as instruments for political repression of political opponents and civic movements – is highly dangerous for human rights since it can set a wheel of repression in motion which will later be very hard to stop. And then political repression against imagined enemies can turn into repression against everybody.

            We would cite one example with those same former Chornobyl clean-up workers.

Dissatisfied with the behaviour of the President of the nationwide civic organization “Chornobyl Union of Ukraine”, Yury Andreyev, who was not, in their opinion, conscientiously representing their interests[6], some former Chornobyl clean-up workers wanted to vote him out at the reporting and election conference on 16 December outside Kyiv. However, in terms of the number of Special Force Berkut officers, the gathering looked more like military exercises. The Berkut officers let those deemed needed into the conference, prevented those who weren’t, and when Anatoly Mokry, a deputy from Kremenchug tried to protest from the tribune against such a manner of running of the conference, they effectively threw him out of the conference hall, telling him that he had been stripped of his status as conference delegate[7].

Elected delegates of the conference from the Kharkiv former Chornobyl clean-up workers, Volodymyr Proskurin and Petro Prokopenko could not get to the conference at all. Proskurin was summoned as a witness in a criminal case over alleged forgery of documents confirming Chornobyl clean-up worker status. At 6.00 on 16 December he was detained near his flat and taken to the investigation department where he waited for the 11.00 appointment and was then questioned for 8 hours. Petro Prokopenko had been called to the investigators on 18 December. He was nonetheless detained outside Kyiv on 16 December in the morning as he was about to enter the conference hall and taken by car to Kharkiv and was in all detained for around 9 hours.

Such unprecedentedly flagrant interference by Internal Affairs officers in the internal matters of a civic organization is undoubtedly political persecution. It is typical that the criminal investigation over forgery of documents was initiated by the MIA regional investigation department by the Minister of Internal Affairs, Zakharchenko. Proskurin had already been detained and he was saved only by the fact that National Deputy Mykhailo Volynets had by chance received on that same day from the MIA a document long asked for certifying that as a 21-year-old policeman Volodymyr Proskurin had in 1986 gone to Chornobyl and Prypyat where he took part in the clean-up operation. Volynets flew to Kharkiv with the document.

Volodymyr Proskurin is registering a new nationwide organization “Union of Chornobyl Veterans”. Perhaps strong leaders who demand unyielding enforcement of the Law on the Status and Social Protection of Citizens who suffered as the result of the Chornobyl Disaster and consistently uphold the interests of former Chornobyl clean-up workers are clearly inconvenient to those in power. They therefore unleashed an unprecedented campaign to discredit them, public statements about “fake” Chornobyl clean-up workers who supposedly paid for court rulings, get unwarrantedly high pensions, etc. On top of that they treat former Chornobyl clean-up workers like criminals, with surveillance, unlawful detentions, attempts under any condition to initiate criminal proceedings. From 3 January for several evenings Proskurin was observed by two cars with police officers near his apartment block.  He believes that they want to detain him and force him to undergo a medical examination in order to take away his second group disability status which he received indefinitely in 2010, and that such actions are planned also against other leaders of the Chornobyl clean-up workers movement.

Such flagrant interference in the matters of a civic association and humiliating contempt for ones own citizens had not been seen in all the 20 years of independence. Yet the former Chornobyl clean-up workers are not the only social group that has been persecuted by the authorities with the help of the law enforcement bodies. In general 2011 saw intensified political harassment of members of civic movements and organizations within civil society. Based on our observations around 60 civic activists, journalists and human rights activists, as well as 11 civic organizations suffered harassment, with such cases seen in 17 regions of the country. Criminal investigations were initiated against 30 people, 3 cases involving administrative proceedings and 2 civil cases were launched.  A decision to undertake forced measures of a medical nature was taken against one person. Around 25 people had their liberty restricted (through detention, remand in custody in a temporary holding facility or SIZO [pre-trial remand unit]) for varying lengths of time. 16 activists were subjected to physical violence. Two people emigrated. All of them encountered violations of legislation or disproportionate interference from the state.

The following criminal investigations are politically motivated: those initiated against members of the Tax Code protests on Maidan Nezalezhnosti [Independence Square]; members of the party VO Svoboda; the nationalist organization Tryzub who daubed paint over a monument to Felix Dzerzhynsky and beheaded the bust of Joseph Stalin; against people for scrambling eggs on the Eternal Flame in Glory Park in Kyiv. There were undoubtedly political motives in the cutting from air of three television channels: ATN, “Fora” and ATVK in Kharkiv which were critical of the local authorities and Mayor. There were widespread violations of freedom of peaceful assembly. Besides unwarranted bans on such gatherings by courts and even local authorities, there were also absolutely anecdotal cases, for example, in Simferopol. Serhiy Veselovsky was charged with administrative liability for “organization of an unauthorized anti-government rally on Lenin Square”. This “rally” consisted of a silent sit-down by several young people on the steps of the Crimean Parliament building with their back to the main entrance for 15 minutes after the end of protests against the felling of trees on Gorky St in a totally different place.

There were also actions by various authorities aimed at deterring young people from civic activity, at cooling them down so to speak. There were also examples of political persecution of young people. For example, police officers in August 2011 turned up at the Youth Nationalist Congress youth camp in the Sumy region. They copied out the passport and registration details of all participants (around 50 people) in training seminars on tourism and civic activism and videoed them. The “prophylactic conversations” which were held in 2010 in various regions by the SBU and police with activists from the Regional Initiatives Foundation, the Democratic Alliance, the independent student union “Direct Action”, and the women’s organization Femen, did not stop. In various forms from advice to threats the young people were advised to not take part in protests, were asked about the leadership of the organizations, the source of their funding, etc.

There was also considerable pressure from the Ministry of Education, Science, Youth and Sport and the administrations of higher educational institutes on particular students and bodies of student self-government which don’t support the Ministry’s policy, for example, by protesting against the new draft Law on Higher Education. The situation became widespread where the Ministry phoned institutes demanding that they carry out an instructional conversation with students and the heads of such student self-government bodies that publicly express their opposition to the draft law or who have been seen at protest actions.

Political persecution is a very serious human rights violation and has a significant impact on political freedom which vanishes rapidly, with the repression aimed at intimidating the public. However it has the opposite effect since they arouse even more protest. The regime gets more worried and takes preventive measures like passing jurisdiction for Article 294 of the Criminal Code (mass disturbances) from the MIA to the SBU.

One can also consider the new Law on the Election of National Deputies, passed on 17 November 2011 by a constitutional majority as such a preventive measure aimed at the ruling majority’s holding onto power. Its adoption was determined by objective need and addressed solely the political needs of those in power. A proportional – majority system, raising the election threshold for a party entering parliament to 5%, and a ban on participation by blocs of parties in the elections remained in the version proposed by those in power. Despite their promises they did not hold widespread public discussion of changes to electoral legislation and the results of those public discussions which were run by the public were ignored.

We would also note that the elections for the Verkhovna Rada should have been held in the last week of March in the fourth year of when they actually carried out their functions. That is, the next parliamentary elections should have taken place on 27 March 2011.  If one analyzes Article 77 § 1 and Article 103 § 5 of the Constitution, it is clear that the President and MPs may not hold office longer than the designated terms. Yet the parliamentary elections were put back to autumn 2012.  This alone is sufficient to conclude that the government in Ukraine has been illegitimate for almost a year.

Pressure on the judiciary and interference in court proceedings

A strong, independent and just judiciary is the main prerequisite for human rights. Yet who is not laying siege to the justice system’s authority!  The actions of the Cabinet of Ministers in banning the Pension Fund form allocating money in enforcement of court rulings on social payments clearly demonstrate the lack of respect for the justice system and supercilious attitude by the executive branch of power to the judiciary. In 2010 and 2011 disregard intensified for judicial independence and rule of law as a whole. Selective criminal prosecutions were more and more dominant, with the courts coming more and more under the control of the Prosecutor’s office, executive and bodies of local self-government   In cases of a political nature, in anti-corruption cases and many other types of cases the principle of adversarial proceedings can be forgotten about, and the courts totally lost their independence being turned into obedient implementers of others’ wishes. The court trials of former government officials are a parody of justice.  For example, the restraint measure against Yulia Tymoshenko and Yury Lutsenko was changed from a signed undertaking not to abscond to remand in custody without any lawful grounds. The holding of a court hearing to determine restraint measures against Yulia Tymoshenko over the United Energy Systems of Ukraine prosecution in the medical unit of the SIZO [remand unit] is a mockery of judicial procedure, and of the accused who is confined to her bed.  In general everything in the criminal prosecution of the former Prime Minister is in keeping not with the law but with the wishes of those in high places who interfere, ignoring all rules and established practice, unceasingly trying to humiliate the imprisoned and ill woman.

So that judges cannot show resistance to such pressure, a Damocles sword has been suspended over them in the form of threat of dismissal for infringement of their oath. This threat can be carried out at any moment through a submission to the High Council of Justice. According to the Law on the High Council of Justice, its members are authorized, in considering such submissions, to even interfere in court cases which have not ended. In a judgement from 11 March 2011, No. 2/2001, the Constitutional Court prohibited requests to see the material of court cases where proceedings have not ended because this could lead to interference in the course of justice[8], and the Verkhovna Rada was supposed to change the law taking this Constitutional Court judgement into account. However the amendments to this law passed on 4 October and signed by the President on 25 November 2011[9], on the contrary, only increased the possibilities for interference by the High Council of Justice as a whole, and its members in the consideration of court cases.  For example, Article 40 § 1 of this Law states:

            “Verification of information about disciplinary misdemeanours is carried out on the instruction of the High Council of Justice or the Head of the High Council of Justice to one of the members of the High Council of Justice through receiving written explanation from the judge and other individuals; demanding to see the court cases (copies) the examination of which has ended, and viewing court cases the examination of which has not ended; receiving other information from state authorities and bodies of local self-government  , their officials, heads of enterprises, institutions, organizations regardless of their form of property and subordination, of citizens and their associations”.

Article 25 § 4 of the Law envisages that the High Council of Justice or its members can demand copies of court case material which has been returned for a new examination, or which has been handed over to another judge, i.e. in those cases where the examination has not been fully concluded and the court ruling has not come into force.

In the opinion of the Verkhovna Rada Central Legal Department such provisions of the law are not in keeping with the Constitutional Court judgements from 19 May 1999, No. 4/99; from 11 April 2000, No. 4/2000; from 20 March 2002, No. 4/2002 and from 11 March 2011, No. 2/2011 which state that the Constitution and laws of Ukraine guarantee the independence and inviolability of judges, as well as prohibiting influence on judges in any force (Article 126 of the Constitution). Yet the parliamentary majority which is under the control of the regime did not pay any attention to this and adopted the amendments to the Law in breach of the Constitution and Constitutional Court judgements.

Practice in using submissions to the High Council of Justice confirms the wish to control judges. Even if it does not dismiss judges, submissions and their review remind judges that they need to be obedient. In 2011 there were submissions to the High Council of Justice with allegations of infringement by judges of their oath for handing down rulings which were not to the Prosecutor’s liking. For example, on 7 June 2011 the Deputy Prosecutor General Mykhailo Havrylyuk, who is at the same time a member of the High Council of Justice, wrote to the High Council of Justice suggesting that it dismiss three judges of the Kyiv Court of Appeal – Ihor Moroz, Valery. Pashkevych and Ludmila Bartashchuk, alleging breach of their oath.  In fact, Mr Havrylyuk wanted to punish the judges for their observance of the Constitution and European Convention on Human Rights. The judges had passed a ruling to free the accused from custody in view of the lack of grounds for extending remand in custody.  This ruling is fully in line with Article 29 of Ukraine’s Constitution and with Article 5 of the European Convention which establishes the right to liberty as an inalienable human right meaning that nobody has to prove that he is justified in being at liberty. This is also confirmed by the case law of the European Court of Human Rights which has on a number of occasions reiterated that there must be a presumption in favour of release, and that under a verdict is issued, a person must be deemed innocent, and that the person should be released as soon as remand in custody becomes unwarranted. The Deputy Prosecutor General is effectively blaming the panel of judges for releasing the accused since the prosecution failed to provide the court with specific facts which could justify continued detention. In court the Prosecutor did not provide any specific fact in favour of such a ruling. Yet the attempt by the Prosecutor’s office to exert pressure on the judges merely because they did not support the Prosecutor’s position is absolutely unacceptable.

The Prosecutor’s Office which is allocated enormous funding for “defence of human rights” should direct its energies towards eradicating those violations, including in the work of the courts, which have already been identified by the European Court of Human Rights, and not try to punish judges for endeavouring to break the pernicious practice of obliging the Prosecutor’s Office and for making demands on State bodies representing the prosecution.

Another highly publicized example was the interference by the Prosecutor General’s Office in the activities of the Supreme Court. On 7 November 2011 Mykhailo Havrylyuk gave a briefing[10] at which he accused Supreme Court judges of illegally changing the sentences of 15 dangerous criminals from life imprisonment to 15 years. He said that the initiative was taken by some National Deputies [MPs] who provided information about the alleged breach of oath by the judges.   “It is unclear on what grounds the Supreme Court Criminal Chamber, as exceptional proceedings, reviewed all these sentences with flagrant violation of the requirements of criminal legislation and changed the sentences. After examination by the High Council of Justice all the names of the judges will be revealed”.

He also stated that some of the judges suspected of unlawful behaviour had already resigned of their own accord.  However the problem of changing the death penalty to life imprisonment or 15 years is a difficult one and there have been constant discussions since 2000 on the subject, with the view of lawyers being divided. To assert now that the Supreme Court judges who reconsidered the death sentences and changed them to 15 years imprisonment in this way infringed their oat is, in my opinion, incorrect.

There have also been submissions alleging breach of oath by judges who handed down rules in cases with a pronounced political nature. For example, on 3 August 2011 a submission was received by the High Council of Justice from the President of the Kyiv Court of Appeal, Anton Chernushenko alleging breach of legislation by judges of that court Valentina Lyaskovska, Anatoly Kuzmin and Oleksandr Zhuravel during consideration of whether to change the restraint measure about Anatoly Makarenko and Taras Shepitko. Those judges had, on 5 July, released Makarenko and Shepitko from custody justifying this as due to positive character references, applications from respected people for their release, Makarenko’s ill health and the fact that Shepitko has children under 16.  The court prohibited them from leaving the country.[11]

While such an instrument of pressure on judges is retained, it is not possible to speak seriously of court protection for human rights.

We should note the amendments passed in 2011 to the Law on Access to Court Rulings which seriously reduce the Register of Court Rulings. From now on, in accordance with Article 3 § 3: “The list of court rulings of general jurisdiction courts which are to be added to the Register is approved by the Council of Judges, after agreement with the State Judicial Administration”

Brutality of Criminal Law Policy

The situation with torture and ill-treatment became more acute in 2011 as against the previous year. . Despite a number of large-scale protests, brutal treatment of detainees is continuing, regardless of the MIA’s declared zero tolerance position with regard to violations of the law by police officers. According to sociological research at national level (including a survey of 3000 respondents in Kyiv, Lviv, Kharkiv, Poltava and the Crimea, carried out as part of a Kharkiv Human Rights Group project with the support of the European Commission, the estimated number of victims of unlawful violence at the hands of the police came to more than 790 thousand in 2010 (this means that there was an act of unlawful violence by the police every 40 seconds)  there was an act of unlawful violence by the police. In 2011 the figure had reached 980 thousand. In 2010 51 people died in police institutions (against 23 in 2009), while by the end of June 2011 news had become public of 27 deaths.

Even the Prosecutor General Viktor Pshonka at an extended meeting on 21 June on the results of Prosecutor Office work during the first 6 months of 2011 stated: “The problem of human rights in criminal proceedings is particularly acute for Ukraine.  There are not isolated cases of torture at the detective inquiry and criminal investigation stages”.

The assessments cited here of the number of victims is in stark contrast to the number of cases of unlawful violence by law enforcement officers which reached the public sphere: victims are scared to complain. We see only the tip of the iceberg. Torture and ill-treatment most often go unpunished or, what is worse, are seen as the norm.  This leads to an increase in lawlessness and impunity in the law enforcement bodies on the one hand, and in everybody having an increased feeling of being unprotected on the other.

The number of people imprisoned is on the increase, with the issue of their being provided with proper medical assistance remaining acute. Mortality in institutions under the State Penitentiary Service rose by 45% during the first half of 2011 (601 deaths against 808 for the whole of 2010); the number of suicides by 22%[12]  The issue of overcrowding in some SIZO again became acute with prisoners in some cells having to take turns to sleep on the bed. There was no implementation of the requirements of the European Court of Human Rights in the Kharchenko v. Ukraine case regarding changes to legislation on pre-trial detention during the investigation, when reading the file material and during the trial.  This is despite the fact that the courts sent approximately one in eleven criminal cases back for further investigation, there are frequent cases where the accused can spend years In a SIZO, although innocent since no verdict has been handed down in their case, and the judge does not dare to acquit them or change the restraint measure. The worst record was 12 years! The already pitiful number of acquittals has over the last two years fallen even further, with the Prosecutor’s office also seeking to have these revoked at appeal stage.  These problems should have been resolved by a new Criminal Procedure Code which they promised to adopt in 2011 however the Code was not tabled in parliament.

2011 saw the adoption of a number of laws which violate human rights, for example the Law on the Legal Status of Foreigners and Stateless Persons and others. All changes without exception are concentrated on broadening the powers of state bodies in exercising control over foreign nationals and functions of coercion and punishment.

At the same time as amendments to legislation aimed at strengthening legal pressure on foreign nationals, in 2011 an additional State body was finally formed for carrying out such immigration policy – the State Migration Service. Unfortunately, instead of a civilian and transparent body independent of the MIA, another gendarme-like body for supervision of foreign nationals has been created, as a kind of daughter firm of the MIA.

The Public’s reaction

2011 was characterized by an increase in public protests by various groups in society. Who didn’t protest against the actions of the authorities! There were protests by workers, teachers, students, environmental activists, members of various political parties, people on benefits, farmers, vets … According to MIA statistics, during 2011 there were 160 thousand protests[13].. How effective were they?  Examination of the authorities’ reaction gives grounds for concluding that they may at best make partial concessions only to later push what they want. One saw no willingness to engage in honest dialogue with the public. One can therefore expect protests against the policy of those in power to increase. According to a public opinion survey by the Razumkov Centre [14], the number of those who believe that where there is a significant deterioration in living conditions, you need to go out into the street and protest (52%) was in December 2011 significantly higher than the number who believe that it’s better to endure financial difficulties so as to retain order in the country (23.3%)

We are once again forced to recall the historical experience of the twentieth century that a political regime which violates human rights is more and more doomed to failure. The human rights situation will improve only when there are radical changes in attitude of those in power to their main constitutional duty, that being the affirmation and protection of human rights. What remains in question is whether the country’s leaders are capable of understanding this at least for the sake of their own selfish interests and a sense of self-preservation.


[1] The Accounting Chamber: Ukraine has not been fighting poverty for 10 years now http://www.epravda.com.ua/news/2011/10/19/302410/

[2] The poverty line in Ukraine is 1025 UAH http://health.unian.net/ukr/detail/225542.

[3] The Committee on Social Policy and Employment has found the work of the Cabinet of Ministers in ensuring implementation of the President’s Decree “On urgent measures to overcome poverty” unsatisfactory http://portal.rada.gov.ua/rada/control/uk/publish/article/news_left?art_id=259301&cat_id=37486

[4] Wage arrears increase by 2.2%  http://news.dt.ua/ECONOMICS/zaborgovanist_iz_zarplat_zbilshilasya_na_2, 2-90232.html

[5] http://www.ccu.gov.ua/pls/wccu/P000?lang=0.

[6] http://khpg.org/index.php?id=1321974814

[7] http://www.pravda.com.ua/rus/news/2011/12/17/6845372

[8] http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=v002p710-11

[9] http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=40136

[10]  High Council of Justice “investigates” Supreme Court judges

[11] khpg.org/index.php?id=1309903839

[12] http://ukrprison.org.ua/index.php?id=1314032401

[13] http://tvi.ua/ua/watch/author/?prog=698

[14] http://www.razumkov.org.ua/ukr/news.php?news_id=386

NGO activities

02.02.2012

Worrying trends

   

Oleksy Svyetikov from the Luhansk Regional Branch of the Committee of Voters of Ukraine writes that his organization makes a point of analyzing events from the point of view of the trends that they show. This year they must also be viewed in terms of their likely influence on the October parliamentary elections.

What particularly stands out is the sharp increase in “actions” by Luhansk police officers with respect to civic activists.

22 May 2011

In the private backyard of Yury Kosaryev from the Luhansk Human Rights Group (village of Volynukhino) there was conflict between Kosaryev and three police officers. This resulted in Kosaryev being beaten, arrest and held in a remand unit [SIZO] for almost 2 months on charges under Articles 342 and 345 of the Criminal Code.

According to the police he was drunk and aggressive to the police officers. However the video of the conflict posted on Youtube it is clear that it was the police officers who threatened him. 

There was also a car with the heads of the company Uspensky Karyer, and since the police have given no adequate reason for being on Kosaryev’s land in the first place, Luhansk human rights activists believe that it was at the instigation of Uspensky Karyer.

Kosaryev has been active in fighting the company’s labour exploitation of employees.

11 January 2012

Four unidentified individuals burst into the home of the head of the Sverdlovsk civic organization Our Choice, Gennady Fumin and tried to set the place alight using a canister with petrol.

Fumin shot a rifle into the air twice, then shot at the wheels of the vehicle the men tried to flee in.

This meant that the arsonists could be identified however it is Gennady Fumin the Sverdlovsk police have charged with unwarranted use of firearms.

A year earlier Fumin was assaulted with bats resulting in him becoming disabled. Although he identified one of the assailants, the person was not charged.

Last summer Fumin’s car was set alight.

“0ur Choice” is active in fighting rights violations against miners working on informal mines.

It is clear, Oleksy Svyetikov writes, that the police in this are on the other side.

20 January 2012

The head of a youth organization “Zherrum”, Ivan Zhebed told the Chair of the MIA Public Council that he had been detained, taken out of the city and beaten by 2 police officers.

Although it is likely that the unlawful detention was not immediately linked with his civic activities, the police behaved more brutally after finding leaflets of a political nature in his pocket.

The author mentions also:

the abuse used by traffic police against members of the Dorozhny Kontrol, a civic organization fighting lawlessness by traffic police;

a search carried out of the home of Oleksandr Chikalo from Stanitsa Luhanska.  He was accusing of writing anarchist slogans calling on people not to go into the army and not to pay taxes.  When they got no confession, they released him but sent him off to find those responsible.

21-22 August 2011

Luhansk police officers phoned representatives of political parties and asked whether they were going to Kyiv to take part in the civic actions on Independence Day.

The police management then claimed that this was the police’s ordinary activities.

“In our view the point in all of these instances is not only that the MIA are engaged in activities not connected with protecting public order and fighting crime. These instances should also be view as interference by the police in the legitimate activities of civic organizations. A particularly important trend to note is that the number of such cases in 2011 rose sharply.

This is particularly worrying on the eve of the election campaign.  The author reports some of the incidents from November 2004 during the presidential elections.  The analogy is clear and alarming.

From the report by Alexei Svyetikov here http://www.cvu.org.ua/doc.php?lang=ukr&mid=pu&id=3190&lim_beg=0

Victims of political repression

30.01.2012

Communist Head of Ukraine’s Archives would remove access to half of them

   

Head of Ukraine’s State Archive, Olha Ginzburg from the Communist Party has said that she would like to close half Ukraine’s archives. She was responding to a question about introducing European norms regarding archival openness. Ginzburg says that access to the archives is given to too wide a circle of people. The Radio Svoboda Ukrainian Service have, however, learned of cases where close relatives have been unable to get information about victims of Stalin’s regime.

Serhiy Semenko was shot in the Kryvy Rih Prison between 1944 and 1947.  That is all that is known about the fate of one member of the national liberation struggle who was arrested together with his family and later shot by the communists, his descendant, Pavlo Podobyed recounts. He says that he is unable to find out any more about his great great grandfather because the State Archives give access only to children or Semenko’s sister, and they are no longer alive.  He explains that he wants to know in order to go and light a candle in the place where his remains lie, yet they won’t tell him. They say that Serhiy Semenko’s children should find out yet their remains lie in the north of Russia where they were deported.

Olha Ginzburg says that the refusal is merely one case of a misunderstanding. She says that the archives are totally open though if she had her way, she would close access to half of them. They have opened up so much, she asserts, that the whole world comes and studies Ukrainian archives/

According to Yarynf Yasynevych, Project Director from the Research Centre of the Liberation Movement, practice shows that archive officers treat the concept of confidential information loosely and there is virtually no access to information about human rights infringements and victims of repression for researchers, and it is difficult for relatives.

She says that a survey the Centre carried out found that over 86 percent of researchers have encountered restrictions on access to information. Lower-ranking officials prefer to take no risks and decide that it’s better to not give access to documents. “The law gives them such a possibility, but they pay absolutely no heed to the public’s right to know and to relatives’ right to find out about victims and the right of historians to establish the names of those victims who have not yet been established.. People come to us who are looking for information about their relatives, who constantly run up against refusals, sometimes even on the pretext that the request is not quite correctly set out”.  This, she notes, is despite the fact that the Public Information Act allows information requests to be set out in any form.

From a report at http://www.radiosvoboda.org/content/article/24465582.html

Monthly bulletin Prava Ludyny (Human rights), 2012, №01

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