PRAVA LUDYNY    June, 1997


HUMAN RIGHTS ARE ABUSED


The President violates Constitution

On April 25 the President of Ukraine Leonid Kuchma sent a memo to the regional administrations of Kiev and Sebastopol, where he demanded to strengthen the labor discipline. To this end, the President proposes to prohibit meetings, manifestations, demonstrations, etc. during the workday. However, Article 39 of the Ukrainian Constitution states that any limitation of the right for meetings, demonstrations, manifestations, etc. can be ruled only by court according to the law and only in the interests of the national security and public order, with the aim of preventing clashes and crimes or protecting the population health or defending rights and freedoms of other people. Thus, the Constitution does not stipulate the measures indicated in the President's message. As to strengthening the labor discipline, it should be said that most protestants at present are jobless. So if the President's demand concerns only employed people, then what could be the procedure of separating them from the crowd of other protestants?

R. R.

New army, old problems

R. Romanov, Sebastopol

In March 1997 the newspaper 'Slava Sevastopolia' published the article 'Help me, mother! ' which informed the public that several Ukrainian marines were taken to the 1-st city hospital of Sebastopol with the diagnosis of distrophia. This article moved many inhabitants of the city. People brought to the hospital food and medication for the starving marines. Bosses of the Navy and city had to react. The military unit where the marines had served was visited by the city mayor Viktor Semenov, the commander of the Ukrainian Navy rear-admiral Mikhail Ezhel, and a representative commission from the Ministry of Defence.

After this inspection the separate marine battalion was ordered to transfer from their barracks in the settlement of Tylovoye to Sebastopol, to the former higher school of navy engineering. According to the data of the medical service of the Ukrainian Navy, the barracks in Tylovoye are not suitable for billeting there a military unit. Because of the low quality of drinking water the level of infectious diseases in the marine battalion is 3.3 times greater than the average level in the Navy, whereas of the virus hepatitis it is 5.3 times greater! Among the commissioned officers the corresponding figures are 2.3 and 4.5. Until recently all insistant demands of military doctors to change the battalion dislocation have been left without reaction on the side of the commandment of the Ukrainian Navy.

Certainly the change of dislocation does not solve the main problem - inhumane conditions of the service in the marines. 22 servicemen of the battalion are underweight. Only during six weeks of 1997 thirteen traumas of the servicemen of this battalion were registered, five of them are broken lower jaws. The majority of these cases are caused by the 'dedovshchina'. So, on March 19, 1997 marine Yu. Yarovoy was brought to the 1-st city hospital of Sebastopol with the diagnosis 'concussion of the cerebral brain'. In his explanations he told that he was kept in the guard house in the settlement of Tylovoye. He was ordered to clean the path from snow, when his warden hit him on the back of the head. Physical duress in the battalion is encouraged and applied by officers. On February 14, 1997 captain Efimov hit seaman Piatichev and fractured his lower jaw. Young servicemen complain that they often become victims of sexual harassment.

The publication 'Help me, mother! ' was regarded by the Navy commandment as a provocation aimed at discrediting Ukrainian Navy. Marines' parents that came from different regions of Ukraine would hardly share such estimation. They bred healthy boys and sent them to serve the state, which in a few months made them invalids. The parents of one of the seamen who was put to the hospital managed to come to Sebastopol from Ternopol region only because they were helped by their neighbors: themselves they did not get their wages for about one year.

Trinkets have been changed on the uniform, but the Ukrainian army still remains a detestable relict of the Soviet times.


The right for life is endangered

I. Sukhorukova, Kharkiv

With a great pity we learn new shocks that undermine psychiatric aid in Ukraine. The stupid and cruel orders Nos.226(224), on which we permanently write, have not been cancelled yet. These orders deprived of the necessary medication a great number of the diseased suffering diverse illnesses; those who have psychic disturbances have suffered most of all. The next point of the agenda is the destruction of the system of psychic dispensaries, efficient structures that patronize psychic cases supporting them for many years. One wants to ask our Minister of Health and his hatchet men, whether they regard it as their duty to destroy a smoothly working system of psychic aid, without offering nothing instead? Our Ministry of Health demonstrates utmost incompetence in problems gravely important for a considerable proportion of the population. The proper Parliamentary Commissions passively observe how patients are deprived of necessary medication, how the administrators want to destroy efficient psychiatric dispensaries, how they reduce the number of places in mental houses, how they keep the patients on the starving diet.

We believe that the Minister of Health must be sacked. The Supreme Soviet must adopt the law on psychic health, and the state must find necessary means to feed and treat psychiatric patients. What happens in our medicine and, in particular, in psychiatry is a brazen abuse of the right for life, to say nothing that it brutally violates Article 49 of the Constitution of Ukraine.

HUMAN RIGHTS ARE DISCUSSED AND PROTECTED

In the previous issue of the bulletin we published abbreviated comments to the third periodical report of the Ukrainian government on tortures, which was prepared by Sebastopol human rights protecting group. In this issue we publish (abbreviated) comments of Zaporozhye 'Union for protection human rights' and Donetsk Memorial. The first is written by our colleagues from Zaporozhye.


Comments to the third periodical report of the Ukrainian government to the UNO Committee against tortures


Introduction

'Union for protection human rights' is especially concerned by the fact that since the times of the former USSR and up to now torture and other cruel, inhumane or degrading treatment or punishment have been applied in Ukraine. Officers of law enforcing agencies inflict on citizens physical and moral tortures, in particular, based on discrimination. Victims of such treatment turned to our organization; besides, there were numerous reports in the human rights protecting press and in mass media.


Imperfections of the national legislation that facilitate application of torture

Article 28 of the new Constitution of Ukraine states that 'nobody can be exposed to torture and other cruel, inhumane or degrading treatment or punishment. No one, without his voluntary agreement, shall undergo medical, scientific or other experiments'.

In order to fight against torture the notion 'torture' must be defined. The Ukrainian legislation does not contain such definition, but it is contained in the UNO Convention against torture. Article 1 of this Convention defines torture as 'any action which inflicts on purpose acute pain or suffering, physical or moral, to a person in order to obtain from this person or from other person information or confession or to punish this person or some other persons for what he or she had committed and also to intimidate or force this person or some other person, or for any other reason based on discrimination of any type, or when this pain or suffering is inflicted by a state official or anyone acting in the official capacity, or instigated by them, or supported by their knowledge and silent agreement'.

Law enforcing agencies and courts in Ukraine have no tradition to obey the constitutional principle permitting the direct application of norms of the international law when the national law is insufficient. This is probably the reason why the court persecutions for applying torture are so infrequent.

Article 107 of the Criminal Code of Ukraine deals with the 'deliberate beating and other violent actions inflicting physical pain' and 'the same actions having a character of torture'. Article 175 treats 'the compulsion to confess during an interrogation by way of illegal actions commited by the criminal investigator' and 'the same action connected with application of violence'. This definition is insufficient because in real life various state officials inflict moral suffering based on discrimination on citizens, but in the Ukrainian legislation it is not a crime.

It is obvious that the term 'torture' must be defined and introduced into the Criminal and Criminal-Procedural Codes of Ukraine.

Here are some examples which must be covered by the extended notion of torture and degrading treatment:

- in preliminary detention blocks the conditions are unbearable: lice, itch, overcrowded cells, inadequate temperature, lack of oxygen, stench; these conditions deprive prisoners of sleep, damage their mental and physical health;

- not a single of the faked mental cases repressed in 60-80s cannot, up to the present, get the compensation for the damage to their health, since very often the same people, who repressed them, are still in power;

- many people have not been moved yet from the high radiation zones after the Chernobyl catastrophe.


State officials do not know the UNO Convention against torture

Most officers of law enforcing bodies and courts do not know about the existence of the UNO Convention against torture, and only few have very fuzzy impression of the Convention. Purposeful measures (such as publications in mass media) from the state and corresponding agencies are needed to correct this situation.


Measures to be taken in the national legislation for protecting citizens from torture and cruel treatment

According to the international legal norms any person who underwent torture or cruel treatment has the right to hand a complaint to the proper competent bodies which must carry out a swift and objective investigation to check whether the torture was used. There is no similar clause in the Ukrainian legislation: the term 'torture' has recently appeared in Article 28 of the Constitution, but it is never mentioned either in the Criminal Code or in the Criminal-Procedural Code.

Human rights protecting organizations often receive complaints on tortures and cruel treatment, but such cases are never considered in courts. This happens because complaints on tortures and cruel treatment are usually found invalid in procurator's offices, and even if they are considered, they are found to be ungrounded, so any criminal action is not started - a resolution against which it is impossible to appeal.


Victims of torture are not recompensed

International legal standards state that a victim of torture has the right for a just and adequate compensation, including the means for the complete rehabilitation. In Ukraine the victims of torture are not recompensed, because the fact of torture is very seldom proved in court.


Torture is very seldom mentioned in trials

At trials the term 'torture' is usually replaced by such euphemisms as 'violent actions', 'beating' and so on, which are frequently used terms in the Criminal Code since the times of the USSR. We need legislation to be perfected and to correspond to the new Constitution and international legal standards.


Recommendations

1. Introduce new legal acts into the legislation of Ukraine for fighting torture and cruel treatment according to the Constitution of Ukraine and international legal standards.

2. Conduct swift and objective investigation of all complaints concerning all kinds of torture and cruel treatment.

3. Guarantee swift, objective and qualified medical examination of people who suffered from torture.

4. Prosecute those who are guilty of applying torture or cruel treatment.

5. Establish an efficient system of independent inspection when criminal cases on torture and cruel treatment are stopped.

6. Educate city officers and population in the problem of fighting with torture and cruel treatment by publishing special scientific and popular literature, by enlightening people through mass media.

Here is another independent report on the fulfillment by Ukraine the Convention against torture. This report is prepared by 'Memorial' from Donetsk jointly with the editorial board of the newspaper 'Tiurma i volia' (in what follows TIV).


Tortures are applied


Prison conditions are equivalent to cruel treatment

There are 14 penitentiary establishments and three detention blocks in Donetsk region. By the existing norms they are calculated for 23, 698 inmates. However, by October 1, 1995 their number was 26, 450, a year later - 30, 461. Especially hard conditions are observed in prison -28, where 3, 320 convicts are packed, while the calculated capacity is 1, 492. The situation is difficult also in TB hospital -3 with 1, 660 inmates, while the capacity is 771. During 9 months of 1995 386 convicts were found to have TB, a year later the corresponding number for the same period reached 983. The number of deaths during these periods was 190 and 413, respectively.

Many convicts catch grave diseases in the prisons. Only in the last year in -97 35 prisoners were found to be AIDS-infected, and 14 caught this disease in the prison.

One of the reasons of falling ill is the overcrowding of prisons. According to the norm, one TB-carrier must have 5 sq.m, but in fact they have 1.6-1.8 sq.m. In -87 23 patients with the open form of TB were kept in the cell with healthy convicts for more than six weeks, since January 1996.

Nutrition in penitentiary establishments is not adequate. In June-August 1996 only in -87 was not obtained, though planned according to the norm: 11, 938 kg of meat, 5, 128 kg of oil, 6, 102 kg of milk. Similar data are available about other prisons.

Physicians working in -28 also inform that the situation is extreme. TB patients went on strike, protesting against the conditions, but nobody reacted. In Mariupol colony for minors youngsters are beaten for slight violations of the regime, for example for sitting on beds and even for gait. In September 1996 there was a rebellion with taking hostages in this colony.


Insufficient investigation of complaints of tortures

In February 1997 TIV directed 22 requests to militia and procurator's office of Donetsk and adjacent regions. The editorial board requested how many complaints on illegal methods of investigation was received in 1994-96 and how many of them proved to be truthful.

Lugansk directorate of MIA answered that not a single such complaint was received during three years. Lugansk procurator's office considered 16 complaints in 1994, 52 in 1995 and 71 in 1996. Only one complaint was satisfied.

Donetsk directorate of MIA also did not receive a single complaint. Donetsk procurator's office does not count complaints, but not a single of them during three years was found valid.

Enakievo procurator's office considered two complaints in 1994 and one of them was found valid. In 1995 eight complaints were received, but they were not confirmed. Other organizations did not answer.

Nonetheless, Donetsk 'Memorial' and the editorial board of TIV know a number of concrete cases when torture was applied.

Yu. Fedorov's case (Stakhanov, Lugansk region).

In October 1992 he was detained being suspected in committing a murder, and during 6 days he was beaten by militia. He told about the beating to detective Shargorovskaya, but neither she nor procurator Mikhaylusov, who gave the warrant for arrest, 'noticed' the beating. The court disregarded the complaint of Yu. Fedorov on beating. In February 1997 his case was reconsidered and the verdict was reduced from 12 to 6 years of imprisonment. The court remarked that the criminal investigation has been inadequate, but again the information on beating was ignored (TIV, December 1996, February 1997).

A. Fokin's case (Zhdanovka, Donetsk region).

A. Fokin was beaten by militiamen in March 1995. The criminal case was terminated since no criminal act was found (TIV, October 1996).

N. Goncharov's case (Komsomolsk, Donetsk region).

N. Goncharov was beaten but drunken militiamen in October 1996. The officer on duty in the precinct, a Titov, refused to take the complaint (TIV, October 1996).

N. Bugulets's case (Starobeshevo, Donetsk region).

N. Bugulets was detained being suspected of beating citizen V., who later died in the precinct. Being released, N. Bogulets went to the hospital and procured a certificate that he had been beaten. Then he was detained again and is still under arrest. Starobeshevo procurator's office and regional procurator's office did not find any guilt of militia in beating N. Bugulets and refused to start a criminal case. The trial happened in February 1997, the court found invalid the resolution of the procurator's office (TIV, September 1996, March 1997).

I. Tkachenko's case (Kiev).

Condemned to death. The evidence that violence was applied during the criminal investigation was disregarded by the court. The militia had threatened that they would detain his wife, as they acted with respect to his friend's wife: the pregnant wife was detained by militia for three days, she was threatened and intimidated (TIV, June 1996).

A. Chebyshev's case (Donetsk).

He was beaten in a militia precinct and forced to sign the affidavit that injuries of feet had been gotten by him at his job. A. Chebyshev begged his wife to stop her efforts to achieve justice, because she could loose him for ever (TIV, June 1996).

V. Kulinich's case (Donetsk).

V. Kulinich and his wife were detained on 28 February 1996. Both were beaten in the militia precinct, he got a medical certificate. He died on March 3 in the detainment. A criminal case has been started, but it is not investigated. The detective explains it by having too much work (TIV, January 1997).

V. Kovalchuk's case (Kiev).

He has been condemned for taking part in the activity of the religious sect 'White Brotherhood'. He is ill with congenital heart disease, medical aid during heart attacks is not granted (TIV, January 1997).

V. Kondratenko's case (Torez, Donetsk region).

He is an invalid of Afghan war. His mother witnesses that during interrogations in the militia precinct they put on him a gas mask with ammonia spirit, forcing him to sign affidavits needed by detectives (from a letter by Kondratenko's mother).

V. Kovalev's case (-52).

On 5 September 1995 he burned himself, protesting against human rights abuses in penitentiary establishments. He had written a letter to the administration of the prison, where he warned about his intention to burn himself; nonetheless, the prison administration declared that it had been an accident (TIV, January 1997, August 1997).

Irina Khromysheva's case (Melitopol, Zaporozhye region).

Irina was detained as suspected in a murder. She was pregnant. During interrogations cops burned her hands with cigarette stubs, which was certified by medical expertise. After the interrogation she had a miscarriage. Her lawyer was not admitted to her during ten days. The court disregarded all these facts (from the letter from I. Khromysheva).

A. Shapovalov's case (Artemovsk).

In May 1996 he had a fight with a militiaman. He was treated in a hospital, his wounds were sutured. Later in the day he was detained by militia and beaten on the fresh wounds. Later he demanded the permission to be examined by medical expertise, but the criminal investigator refused the permission (TIV, February 1997).


On compensation to victims of torture

The compensation is ruled by Article 14 of the Convention against torture. This article is not operable, since practically there are no cases when torture is confirmed by court.


Using confessions obtained under duress

This is forbidden by Article 15 of the Convention against torture. The confessions were presented at the trial, though the accused complained that their confessions were squeezed by torture. It happened in the above-listed cases of Fedorov, Bugulets, Tkachenko, Kondratenko and Khromysheva. In all these cases but one the court disregarded their complaints (except the case of Bugulets where the court requested the investigation to explain the cause of body injuries of the accused).


Death penalty

149 people were executed in Ukraine in 1995, 167 - in 1996. Although Ukraine promised to decree the moratorium on executions, death verdicts are given and executed. In February 1997 in prison No.1 of Donetsk 27 people were awaiting their death.

In higher instances death verdicts are checked bureaucratically, the Commission on mercy under the President of Ukraine mercies 1-2 people per year. The conditions under which the condemned to death are kept, are worse even than the existing norms, letters where prisoners describe the conditions are intercepted by the prison administration, but one of them, Aleksandr Dotsenko (executed in April 1996), managed to smuggle such a letter.


Conclusions

The Ukrainian law contains clauses prohibiting torture and sanctioning punishments of those who applied tortures. In the actual fact, torture, especially beating suspects by militia, is a routine. A small number of complaints is the consequence of refusals to accept the complaints by procurator's office and militia. If such complaints are accepted, then, even if a medical certificate on body injuries is available, the criminal case is not started. Checking of complaints is reduced to questioning those militiamen, about whose actions the complaints are. After this the case is terminated by Article 6, Clause 1 or 2 of the Criminal-Procedural Code, i.e. because no crime has been committed.

Complaints of the accused during trials on the torture are disregarded by courts. Militia, procurator's office and court help each other like birds of the same feather.

Citizens know that all the attempts to prove torture result in new torture without any troubles for torturers. When facts of cruel treatment are described in the press, it is ignored by the procurator's office. If the editorial board sends an official request, then usually no answer follows or there follows a formal answer that the facts have not been confirmed. If the editorial board insists, then a visit of a tax inspector follows or a threat to prosecute the newsmen for libel.

Citizens often do not know their rights, necessary information in mass media is absent.

Human rights protectors use their own methods to protect human rights including the right for life, miners use their own methods. Several times our bulletin told the readers how the case of Mikhail Krylov, a co-chairman of the Donetsk strike committee, was considered in Zaporozhye regional court. Here we present the interview with M. Krylov conducted by Evhen Zakharov (Kharkiv).

Zakharov: What are you going to do if you are found guilty?

Krylov: Now we are preparing documents to be sent to the Constitutional Court. To analyze my case one must not be a lawyer because practically all rights were violated in my trial. Frankly speaking, there is little hope, but one must try.

Z.: If the Constitutional Court rejects your appeal, you, perhaps, will be able to handle your appeal to the Strasbourg Court. Do you intend to?

K.: If I can, I will.

Z.: When the convention is ratified by Ukraine you will have this opportunity.

K.: It would be great! But when will it be? I think that Ukraine will not hurry.

Z.: I hope that Ukraine will have ratified the European Convention. It looks like Ukraine will be made to. And now the question: what are your motives that forced you to continue the trial?

K.: And why shall I plead guilty? To ask for amnesty means to confess that I am guilty, but I am not.

Z.: And what resolution of the court will satisfy you?

K.: They must rule my accusation as false and it would be desirable if the court gives its assessment of the events involved.

Z.: Tell me please how large are pay arrears for miners at the present?

K.: They grew up by 20-25% compared to the last year. In principle, the last year situation may repeat. There is a difference: by the end of May last year four mines did not work, now, as far as I know, only one is on strike. I believe that if the government does not diminish the pay arrears, then the last July events may repeat in a more stringent variant.

Z.: Is your organization functioning now?

K.: Yes.

Z.: Is it still coordinating the efforts of miners as before?

K.: Unfortunately, much less. Valeriy Miller, chairman of the miner trade union association, is also prosecuted at court, like myself. We have decided not to stir up trouble. Miners must understand themselves that they are in the dead-end. They need some time to understand.

Z.: With which structures of our state do you connect your hopes for the better, if any?

K.: Neither court nor law. I am sure that if we want to live well, we must struggle for such life ourselves.

Z.: I am not a specialist in mining. I may be mistaken but it seems to me that the problems of your industry cannot be solved without great investments. Is it right?

K.: No, it is not. This is a universal mistake which appeared because our top officials permanently lie to the people; they say that our coal is much more expensive than the imported one. The real data are such: in Spain, for example, the net cost of a metric tonne is $198, in Germany - $174 and here - $52.

Z.: And what about Polish coal?

K.: It is sold at $75-78 but Polish coal is better for extinguishing fire than for supporting it.

The reason of the lies is clear: Ukraine borrows money from various financial international organizations, and they set the condition: if Ukraine closes her mines, they will give money, if not, then not. We read an official document - recommendations of the international currency fund. This document openly states that one must in any way pay less to miners to force them to leave mines, thus avoiding payments for social programs accompanying the official closure of mines. The sense is clear: when we loose our own coal, we shall have to buy coal abroad at much higher price. Our top officials are either stupid or take bribes. I do not see any other explanation.

Z.: If I understood you rightly, you assess the state program of closing nonrentable mines as unreasonable?

K.: I have nothing to assess because there is no such state program. There are some declarations around this non-existing program. As to the concept of rentable mines - they exist now only in two countries of the world: the USA and Australia, and even there they are furtively subsided. When specialists speak about rentable mines, it is obvious stupidity.

Z.: Then, if I understood you correctly, the state policy in coal mining is incorrect.

K.: No, I would not say it, this policy does not exist.

Z.: And what must be done, in your opinion?

K.: If we want to live and if we want our children to live, we must somehow fight for our survival.

Z.: I see. And what concrete steps do you plan? Has your trade union or other trade unions some real program of solving problems of coal mining?

K.: Yes, and we made them public during the July events. We proposed to Pavlo Lazarenko to have an open discussion on the TV screen: you are the first person in the state, we shall explain to you, how to solve our problems and you will explain why it is bad. If people think that you are right, we shall scatter and not be in your way. But if people understand that we are right, then you must go. Then the arrests started.

Z.: I tried to understand your problems and read a lot of quite diverse materials, and I came to the conclusion that miners and their organizations have different opinions.

K.: They are mostly scabs who have different opinions.

Z.: I remember that you intended to prosecute Prime-Minister Lazarenko who declared that you had obtained dollars from a foreign country.

K.: Yes, we prepared documents, but not a single court wanted to start the case. We understood that we were loosing time. Though the documents are prepared and we keep them ready.

Z.: May I publish all that you have said?

K.: Sure.

Z.: I wish you luck.

Mikhail Krylov was condemned for two years and compulsorily amnestied. But he is going to prove his innocence in next instance.


Raid for youngsters (continuation)

In the last issue we wrote that Dzerzhinskiy precinct of militia in Kharkiv carried out a special raid to capture innocent youngsters, who later were brutally treated. Kharkiv Group for human rights protection complained to the City Procurator who sent a message to Kharkiv Directorate of MIA. We have received the answer from the City Directorate. We quote it verbatim.

Kharkiv City Directorate of MIA

Kharkiv region

Personnel department

Maryanovskiy G. A. Chairman of Kharkiv Group for human rights protection

27 May 1997

I inform you that your letter was considered by the Kharkiv City Directorate of Internal Affairs.

In the course of the investigation a fact was found of the violation of the operable laws on the side of a number of officers of Dzerzhinskiy precinct; they were punished in the disciplinary line.

The film with negatives of youngsters' photos was destroyed.

Commander of Kharkiv Directorate of MIA A. A. Kharienko

As the reader can see, the people who deserve punishment are, though very infrequently and very mildly, punished. That is a pity that no one guilty of this shameful action was sacked from militia and no criminal case was started, but all the same it is pleasant to see that militia can bring to order their members (although with our assistance).


The ombudsman must represent the public

Renat Mukhamedzhanov, co-chairman of the center of human rights, Dnepropetrovsk

Without justice and law the state is

nothing but a band of robbers

Saint Augustine

At last the Ukrainian Parliament adopted the draft of the law on the ombudsman in the first reading.

Unfortunately, this does not mean that the rights of millions of people will be restored. No, the rights were brutally violated and are brutally violated by the state, its bodies, its former-regime and freshly corrupted bureaucrats.

Nonetheless, this is a remarkable event on the way to a civilized (not Lenin-like and not Albania-like) solution of the old opposition of the people to the violence on the side of the state, which people created. Mad bloodsheds, where brother kills brother, which politicians euphemistically call 'social unrest', is caused, first of all, by unjustice, or rather by too much exploitation of the subordinates by those who are in power, exploitation which exceeds reasonable limits. Perhaps one must say here on the violation of the balance of mutual exploitation of subordinates and authorities, but this is another topic.

In the majority of countries the society came to the conclusion that a man shall be defended from authorities. And they created a special position - that of the ombudsman (in different countries he has different names). Sometimes it is somebody, sometimes it is a body.

The UNO brochure describes this position as follows: 'Ombudsman, as a rule, is appointed by the Parliament. The main function of the ombudsman is to protect individuals who considered themselves victims of unjust actions on the side of the state administration.' And further: 'In most cases the main function of the ombudsman is to guarantee justice and legality of the state administration. The main direction of the ombudsman's activity is to consider individual complaints.'

It is noteworthy that the position of the ombudsman is introduced in the countries where they have police and procurator's office and court to protect man and his rights, and these agencies do protect man in contrast to ours, which deteriorated to such a degree that often their activity is opposite. If a court tries an innocent man and without objective investigation puts him behind the bars, then this is an anti-court. If authorities illegally take away an enterprise from those who work there, and if an arbitral court defends the robber, then it is an anti-court again!

Several MPs came to the conclusion that the establishment of the position of the ombudsman would be one of the realistic ways to fight with offending actions of the state against individual. MPs proposed three drafts of the law on the ombudsman. The Committee on human rights, national minorities and international relations perfected this draft and suggested it to the Parliament. It seems that the final draft is written not without borrowing the most valuable experience of the ombudsman's activity in Poland where the conditions are more or less similar to ours.

The adoption of the draft in the first reading is certainly a success, since the tasks set before the ombudsman and means of their solution correspond, in principle, to the needs and wishes of the victims of arbitrary actions of the authorities.

It is clearly fixed in the draft that rights and freedoms of rank-and-file citizens must be protected from the state power bodies, from local self-administration bodies, enterprises, establishments and organizations, independently of the forms of property. The ombudsman's competence covers all the interrelations concerning rights, freedoms and legal interests of citizens and authorities (but not between citizens). Every citizen of Ukraine or some other state or a non-citizen may address the ombudsman. Besides, the ombudsman has the right to start investigations on his own initiative, which is the only way to protect numerous groups of population or their rights, since they cannot be expressed in an individual complaint (for example these are pensions that became unpredicted handouts, our medications that somehow get from hospitals to the black market and the like).

The ombudsman has the right to suspend illegal acts, whereas his acts must be obeyed.

Certainly, with our nondemocratic upbringing and practically antidemocratic regime the results of the ombudsman's activity will mainly depend on the merits of the man who will take this position. It is good that in the draft no requests are formulated that the candidate must have juridical education, it is good that there is a clause that the candidate 'must have high moral qualities and experience of human rights protecting activity'. Our lawyers had been brought up as prison wardens and political indoctrinators. Lenin taught them: 'there is no moral in politics'.

Certainly there is a well-grounded danger that this position will be given to some discredited general procurator. In order to avoid this we must use a well-known recipe to elect the ombudsman, taking account of the public opinion, to be precise, the human rights protectors' qualified opinion.

Unfortunately, the role of the public opinion in appointing the ombudsman and in assessing his activity is not reflected in the draft. Beside this Dnepropetrovsk center suggests the following changes to the draft:

- the ombudsman should not merely 'contribute' to the process of restoring violated rights (all the state must contribute to this process) but he must 'achieve the restoring of the rights and recompensing the damage';

- the right to turn to the ombudsman must be given not only to individuals but to labor collectives and nongovernmental public organizations;

- the first ombudsman must be appointed not for the term of 7 years, but only for 2-3 years, to facilitate the correction of a possible mistake in choosing the candidature;

- the ombudsman must be given the right to inspect trials without violating the principle of independence of court.

LEGAL ENLIGHTENMENT


Penitentiary system in Ukraine and international penitentiary rules

Grigoriy Maryanovskiy, co-chairman of Kharkiv Group for human rights protection

International meetings held since the last quarter of the 19-th century (the first was held in 1872 in London, one of the following - in St. Petersbourgh) were used for the development of 'Minimal standard rules of keeping convicts' which were recommended for adoption at the League of Nations in 1934. The rules contained a classification of convicts and regimes of their keeping, problems of prison personnel, preparation of convicts to releasing, etc. The General Secretary of the League of Nations addressed the governments who undersigned the rules with the request to make them known by the public opinion.

WW2 forced people to reassess many historical and social values. The UNO was created after the war, the Universal Declaration of Human Rights was adopted (in 1948) as well as many pacts and conventions of liberal orientation. All this led to reconsideration of the 'Minimal standard rules'. The new draft of 'Minimal standard rules of treatment the prisoners' was recommended by the Commission of the Economic and Social Council and adopted at the 1-st UNO Congress on preventing crime and treatment of law-violators in 1955. At the same time the decision was taken on periodical reports (one time in three years) to the UNO General Secretary.

In order to promote the implementation of the Rules and realizing ideals and principles of the European cultural inheritance, the Council of Europe formed in 1967 the European Committee on Crime Problems (ECCP) which was made responsible for the activity of the Council of Europe carried out in this field. In 1968 ECCP was requested to change the UNO rules for making them correspond the modern penitentiary policy with the aim of their further efficient application.

The text of the European version of the Rules first appeared in the resolution of the Committee of Ministers in 1975. Somewhat later the Committee on cooperation in penitentiary questions was created. The Committee's duty was to encourage the development of modern methods of keeping convicts, to organize conferences, to serve as the information center, to prepare reports to the General Secretary of the Council of Europe, to create a systematic qualification of minimal standards in the framework of special legislation.

The European penitentiary rules in the present form were adopted by the Committee of Ministers in 1987.

The Rules are not compulsory for fulfillment, they rather present a set of standards and practical measures for those countries which accepted the rules as the basis of the corresponding part of their legislation. It should be noted that they are minimal rules, while the national standards are expected to be better.

The main goal of the international documents in the penitentiary domain is the preparation of the convict for returning to normal life. The reforming efforts (labor, social preparation, general education and professional training, physical training, etc.) are intended for the support or restoration of the physical and psychic health and for the subsequent reintegration into society.

The Rules must weaken the negative effect of the incarceration. It is difficult to estimate the positive influence of the Rules on reforming criminals (the percentage of the repeated crimes is high in many countries, and in our country for some kinds of crimes recidivism reaches 50%), but it is clear that the repressive policy never decreased the number of criminals, and cruelty breeds cruelty. And it is true that the policy of Ukraine in the protection of law differs little from the repressive policy of the USSR, both in the legislation and in the law applying practice.

The rules consider such questions as the management of penitentiary establishments and to the distribution and the classification of prisoners. The Rules pay great attention to the state of the cells which immediately affects the living conditions and the moral atmosphere; the Rules recommend 'to put prisoners for the night to separate cells'; sanitary equipment must be adequate and enable prisoners to fulfill their body functions under the conditions of decency and neatness; nutrition must be adequate and healthy; 'handcuffs, straight jackets and the like must not be used as a punishment under any conditions'; the prisoners must be given religious and moral support.

The Rules dwell upon the questions of training the prison personnel: 'prison wards shall study the European penitentiary rules and the European Convention on human rights', they are taught how 'to ensure for prisoners the conditions compatible with human dignity', 'to reduce to the minimum the negative consequences of incarceration' and so on.

The Rules stress the necessity of the preparation to the release. The administration of prisons should cooperate with social services and public organizations.

There are additional rules for those who stay in the detention blocks during the criminal investigation and trial. This category of the prisoners 'should have the opportunity to live in a separate cell', they must be able to communicate with their family, friends and people, contacts with whom are legally permitted.

In Ukraine the legal base of the penitentiary system is the reforming Labor Code (LC) and the Rules of internal regime. Article 1 of LC formulates the purpose of incarceration as 'reforming of the prisoners in the spirit of the honest attitude to labor'. In reality this is reduced to the isolation of convicts from the society. Along with the restriction of freedom, prisoners suffer from inadequate conditions.

And the reason here lies not only in the catastrophic state of the Ukrainian economy which tells on the medical aid, nutrition and the like. The main reason is the attitude to the detained and the condemned, which has not changed much since the times of the USSR.

For example, according to the law 'On militia', a detained person may be kept for ten days without any accusation, in the law 'On preliminary encarceration' the regime of the detained practically does not differ from those for the condemned.

As is well known, the conditions in the preliminary prisons (for those who have not yet been found guilty) are inhumane, cruel and degrading. By February 1, 1997 in 32 preliminary prisons of Ukraine 43, 700 people were kept, which is more than two times exceeds the number of prisoners, compared to the norms. TB and infectious diseases are frequent. The additional sufferings are inflicted by prison wards.

Ukrainian courts in most cases rule to keep the suspects in preliminary prisons; such measures as release on bail or on the promise not to escape are extremely rare. In bringing verdicts courts base their resolutions on the confession of the suspects, and criminal investigators squeeze the confessions by applying moral or physical duress. These factors overweigh economic ones.

By the way, the procedure of temporary detention of suspects is regulated not by the Criminal-Procedural Code, but by the 'Regulations on the procedure of temporary detainment of persons suspected in committing a crime', which has never been published. In detention blocks of the USS the procedures of keeping prisoners are also regulated by closed instructions'. As to colonies where the criminals are sent after the verdict, the situation is also close to critical. By the data on 1 February 1997 in 137 colonies about 173, 000 convicts were kept, 85, 800 were incarcerated in 1996. More than a half, 56.6% are condemned for short terms.

In the Criminal Code of Ukraine as well as in the draft of the new code no alternative measures of punishment (alternative to incarceration) are mentioned, although alternative measures would certainly remove many economic problems and decrease the percent of recidivists for whom the modern penitentiary system is an efficient school.

Specialists consider that at least 30% of the condemned could be punished by alternative measures. Legal reforms remain in slumber, new Criminal, Criminal-Procedural and Reforming Codes do not account for the international norms and the new Constitution. The situation requires great efforts. The most pressing problems are: shortening terms of keeping under lock during the criminal investigation and trial, introduction of alternative measures of punishment, introduction of the probation system and so on.

Last but not least, those who enforce laws must themselves observe laws, including the international laws that Ukraine promised to fulfill.

DISCUSSION ON DEATH PENALTY


We have published many materials whose authors support the abolition of the death penalty in Ukraine. Here, for the balance, we publish the letter of the opponent of such views.


Permit me to disagree

A. Yurchenko, Black-Sea districtal organization for human rights protection, Crimea

Recently I left a hospital but, in fact, I was not treated. Now, if one is penniless, one is doomed, in spite of Article 49 of the Constitution which states that every man has the right to medical aid and that in state hospitals this aid is given gratis.

The Constitution that has been discussed so long and adopted so long has not brought any good to the people, because nobody is punished for violations of the Constitution. There is no light at the tunnel's end. Our leaders do not care of the health and life of the people, of six month pay arrears.

Ukraine was accepted to the Council of Europe. Has a country, where the legal havoc realms, the right to be an a member of the Council of Europe? People are starving and dying, like at war and the West is silent. Professional human rights protectors of Ukraine are also silent because their organizations serve their egotistical interests.

Is it the right time to abolish the death penalty in the country where the crime is steadily growing? Why do not the USA abolish the death penalty? I think that first of all we must raise the standard of living in Ukraine and then we shall have the moral right to enter the Council of Europe and, may be, to abolish the death penalty for those criminals whose guilt was not completely proved. First of all, the state must care of innocent citizens who are killed by criminals, not how to preserve the lives of the criminals. The state is unable to provide normal life to millions of law-abiding citizens, but it finds the opportunity to think how to preserve murderers' lives. We must not blindly copy Western customs, we must also look at the East, where the countries are populated by religious people who do not intend to abolish the death penalty.

In issue No.12 of 'PL' the article 'Punishment or revenge?' was published. Members of our organization would like to know what would the authors' attitude be if (God save them! ) they lost a relative or a friend from the hands of a murderer? It is easy to speculate in a comfortable armchair. I am sure that any referendum would vote for the death penalty of grave criminals whose guilt has been convincingly proved.

It is true that the state kills its citizens, but mainly without death verdicts, merely by violating the right for life. Here the efforts of human rights protectors must be focused. Only those who live without troubles in our difficult times can allow themselves to gab about the abolition of the death penalty.

In our opinion, Ukraine is economically not prepared to the abolition of the death penalty and if countries of the Council of Europe insist, they must take Ukrainian murderers and keep them in their comfortable prisons for life. But such foreign countries would not agree. They want to demoralize and corrupt Ukraine. I do not believe that anybody in the West cares a pin for the prosperity of Ukraine. In their society man is a wolf to other man, whichever they themselves say.

In 'PL' No.12 it is mentioned that the President of Ukraine signed the Edict 'On measures guaranteeing the constitutional right of citizens to address the administration'. Unfortunately, neither the date nor the number of the Edict have been mentioned. This Edict says that the President orders all the bodies of the executive power to accept written applications and complaints of citizens and give a well-grounded answer.

As a deputy of the Districtal Soviet, I more than 20 times turned to the chairman of the Districtal Soviet, to the editor-in-chief of the districtal newspaper, to different commissions of the district, but I got no answers at all. My addressees do not answer, ignoring the Constitution, Edicts and Laws. Our organization is desperate. If 'a vertical' existed in human rights protecting activity, we could address higher instances, but they do not exist. What shall we do?

CLIPPINGS FROM PRESS

The Ministry of Education informed the public that state-owned higher schools would take paying students without limitations, determined by the state order for specialists. But this order is considerably diminished this year. Besides the cost of education in a state higher school is much greater than in a private one.

'Kievskiye Vedomosti', 26 April 1997

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Ministry of Labor informed that during the last year the number of jobless in Ukraine trebled. During four months of 1997 the strain has doubled. At the same time the employment fund got no financing at all. This is caused by the abolition of compulsory contributions of enterprises to this fund, while no other sources of financing were created. The state employment center of the Ministry of Labor communicates that 15 jobless on the average pretend for each vacancy. This is the average data, but in different regions this ratio varies from 2 in Sebastopol to 161 in Ivano-Frankivsk region.

'Ukraina moloda', No.86, May 1997

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Ministry of Economy predicts that the population of Ukraine during next 30 years must reduce by 4 million and in 2020 will be approximately 46.7 million. During 10 next years all age groups will diminish, especially the number of children.

'Slobidskiy kray', 22 May 1997

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In the first quarter of 1997 the number of crimes diminished by 5333 compared to the corresponding period of the last year. The percentage of disclosed crimes reached 74.2%. This is, perhaps, a somewhat distorted statistics. For example, the number of premeditated murders in the first quarter of 1997 is 1058 less than in the same period of the last year. But in this quarter almost 12, 000 were missing and only 6, 500 was found. How many of the rest are killed? The MIA report is silent about this. In 1992 2877 dead bodies were found and in 1996 the number grew to 8174. Minister Kravchenko reports decrease of the number of premeditated murders, but the number of dead bodies grows. How one can understand this paradox?

'Kievskiye vedomosti', 14 May 1997


Life costs money

Yuri Kravchenko, the Minister of Internal Affairs, communicated that 'rebuilding of existing colonies for the prisoners with life terms will cost 35 million grivnas'. One must add to this sum the expenditures for training the personnel, for improving the qualification of detectives, judges and workers of the penitentiary system. The Ministry must pay for the special regime for eternal jailbirds according to the European standards because international commissions and other VIPs will frequently visit such establishments. Upkeep of one prisoner of this sort, according to Nikolay Khandurin, the Deputy Minister of Justice, will cost the state budget about 8 million grivnas per year.

'Kievskiye vedomosti', 22 April 1997

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Lenny Fisher, President of the Parliamentary Assembly of the Council of Europe, after the meeting with the Prime-Minister Pavlo Lazarenko has declared in her interview with newsmen that it is too early to raise the question of the complete prohibition of the death penalty in Ukraine. She has said that taking up this decision requires time and efforts to prepare the society.

'Vseukrainskiye vedomosti', No.82, may 1997


Crimes committed by law enforcers

Kiev City Court started the trial of two officers and one probationer of a precinct in Kiev. The suspects are accused of a murder and accomplice to the murder of a young lawyer who accidentally met the drunken militiamen near the universal store 'Children world'. After a 'discourse' of the lawyer with the representatives of power in the militia precinct the dead body of the lawyer was found near a garbage bin in the street. The criminal investigation of this case lasted a year and found out plenty of disorders.

'Golos Ukrainy', 17 May 1997

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More than 300 inhabitants of the town of Cherkassy sent a letter to G. Vorsinov, General Procurator of Ukraine, where they demanded to dismiss the procurator of Cherkassy. The letter points out that 'in the system of law enforcing agencies of Ukraine the most popular method of criminal investigation is beating a suspect to force him to confess his guilt'. In the capacity of 'one of later facts of committing crime against justice' the letter mentions the notorious case of a school teacher Sergey Falkovich who is accused in raping a nine-year-old schoolgirl. The right commission of the All-Ukrainian Committee for human rights protection, having studied the materials of the preliminary investigation, has come to the conclusion that Falkovich was framed, that material exhibits were faked and that the investigators applied 'non-procedural measures to the suspect'. MIA organized an inspection in Cherkassy and did not find any facts to confirm the illegal methods of investigation with respect to Falkovich. The latter's advocate, Galina Lobanova, declared that she would present the evidence confirming maltreatment of her client and prove that the results of one expertise had been falsified. Both the advocate and journalist Valentina Vasilchenko, who investigated this case on her own initiative, declared that they were tailed.

If Falkovich really committed the crime, his guilt must be proved by legal methods.

'Kievskiye vedomosti', 13 May 1997

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On 25 April relatives and friends buried 16-year-old Kievan Evhen Smeyan. During several months he was imprisoned in the detention block of -1 of MIA of Ukraine (Lukyanovskaya prison). Evhen had never complained for his health, his relatives say, but prison doctors insist that Evhen had a heart stroke. The investigation has been started to check whether the death of Evhen was caused by cell-mates or prison wards. At the same time a parallel version is checked: some time before Evhen had been brutally beaten in one of militia precincts, so the fatal end could result from the beating.

'Kievskiye vedomosti', 26 April 1997