“Prava Ludiny” (human rights) monthly bulletin, 2005, #05
Lutsenko found six thousand persons that falsified the election School superintendent can be imprisoned for bribe at the election Eight criminal cases on violations during presidential election were passed to courts Falsifiers of election were condemned to two years of reformative works Politics and human rights
100 days of the new government through the prism of human rights The right to liberty and security
Court decision on illegal detention The right to a fair trial
Decision of the European Court in Sergey Chizhovs case Kuchma left, Kuchmism remained Ukraine continues paying out salary debts through the European court for human rights Freedom of expression
Ukrainian mass media still preserve the features of authoritarian press Open letter of the Association of media-lawyers of the Lviv region On refugees
Is militia with people? (Open letter to Minister of Interior of Ukraine Yu. Lutsenko) Interethnic relations
Prisoners call for help Deported peoples
Lviv dwellers are indignant at construction by the USS directorate of apartment house on the burial place of political prisoners tortured by Soviet special services Kharkiv. Presentation of the book “Rehabilitated by history”
Lutsenko found six thousand persons that falsified the election
The Ministry of Interior started 500 criminal cases after the facts of violations in the course of the past election of the President of Ukraine, 111 of them have been directed to court.
This information was presented by Minister of Interior Yuri Lutsenko during the meeting with USA ambassador John Herbst.
“Six thousand persons are involved in the cases on violations, in particular, 70 persons, who were the organizers of the offences”, Lutsenko said. He aldo added: “The majority of violations were connected with the repeated use of the off-list tickets”. According to Lutsenkos words, “now the Supreme Council considers the law draft that envisages amnesty to the executors of violations during the election and establishes punishment for organizers of these violations”. “We plan to punish the organizers severely”, said the Minister of Interior.
He also added that “during first 100 days of activity of the new staff of the Ministry 250 law-enforcers were disclosed, who had been connected with violations during the election. In particular, 40% of them – militia officers of medium and top rank”.
School superintendent can be imprisoned for bribe at the election
According to the information of the PR-department of the regional directorate of the Ministry of Interior, in the course of the ODA it became known that the teacher, who, during the presidential election, had been the head of the district election commission, got 10 thousand hryvnas from a representative of a candidate to Presidents post. For this money the school superintendent had to commit the actions, which would influence the final result of the election. The investigation is going on.
Eight criminal cases on violations during presidential election were passed to courts
In particular, three members of the election commission of the 179th election circuit (the Pechenezhskiy district) are suspected of inclusion of false data into protocols during the run-off election on 21 November.
Two officials of the Pechenezhskiy district state administration and the local village council will be also brought to court. Representatives of the regional prosecutors office told that these officials had forced three members of the election commission to commit a crime, threatening to fire them.
Aleksandr Perepelitsa, the head of the department for supervision over investigation of criminal cases by investigating organs of prosecutors office of the Kharkiv region, informed that altogether the prosecutors office of the Kharkiv region instituted 20 criminal cases after the complaints about violations of laws during the conduction of presidential election.
13 May 2005
Falsifiers of election were condemned to two years of reformative works
Four dwellers of the Vasylyevskiy district of the Zaporozhye region were condemned by court to two years of reformative works for falsification of results of the election of the President of Ukraine.
Deputy prosecutor of the Zaporozhye region Marianna Vlasova communicated that the Vasylyevskiy district court issued this decision on the basis of the article of Criminal Code on violation of election laws.
According to her words, the guilt of the accused was proved completely.
“They went from Vasylyevka to Dniproprudny and voted with false off-list tickets for several times. On average, every of them voted from 2 to 5 times. Naturally, this was done for material remuneration, although not great one”, told Vlasova.
According to the law, the condemned continue to work at the place of their basic employment, but during two years they must allot 20% of their salary to the state.
Now 51 cases on falsifications of the election are processed by investigating officers of the Zaporozhye regional prosecutors office. Six such cases have been already passed to court.
12 May 2005
Politics and human rights
100 days of the new government through the prism of human rights
First three months of activity of the new government of Ukraine have given the possibility to analyze the basic tendencies of development of situation in Ukraine, including human rights. Three months ago we sent a letter to the President of Ukraine, in which letter we stated the position of human rights protecting organizations regarding the changes and reforms, which had to be realized for minimization of violations of human rights in Ukraine. Actually, none of our proposals was taken into consideration in full.
In general, we regard as positive bringing to account the persons, who have participated in falsifications of the election results during the recent presidential election and exerted pressure on voters. Yet, one sees that only individual ordinary executers of criminal orders on falsification of the election process are punished, while the organizers of these actions remain unpunished. At the same time, there is a lack of equality of approaches to violations in different regions of Ukraine and systemic actions directed to improvement of the condition of election. We suppose that in case of violation of the right for free election, impunity is a guarantee of further violations of electoral rights and distortion of peoples will, particularly, at parliamentary election.
We welcome the governments intention to realize the right presupposed by Article 46 of the Constitution of Ukraine, which provides pensions and other kinds of social maintenance in the amount ensuring the living standard not lower than cost of living. Poverty of a considerable part of population of the state was a disgraceful phenomenon at the time of the previous government. At the same time the fiscal policy of the state has not changed. The tax militia, as the main infringer of human rights and a symbol of political persecutions in the past, has had to cease its existence, what was promised by many officials, but it continues to realize a wide circle of activities, including the ODA, which often lead to ungrounded meddling in private life and restriction of other freedoms in the country.
Human rights protecting organizations of Ukraine welcome the changes, which have happened in the sphere of mass media, though there are no guarantees of fixing or developing this positive tendency. There is plurality of opinions in all media sectors, most of national TV and radio broadcasters keep balance in informational materials, although elements of manipulation with information still remain. We do not know any facts of pressure on journalists on the side of central government, the state mass media gradually get rid of the biased-positive attitude to the government traditional for them. Local government continues to put pressure upon mass media. Unfortunately, a comprehensible position concerning the establishment of public broadcasting and privatization of state mass media has not been elaborated until now. We believe that appropriate reforms in the sphere of TV and radio broadcasting should be carried out before the beginning of the electoral campaign-2005.
10 questions, which especially alarm human rights protecting organizations:
1. The constitutional system of Ukraine needs changes, but not the changes envisaged by the approved law draft No. 4180. We support the expansion of functions of parliamentary control (although draft 4180 actually does not intensify it), but protest against imperative mandate and Soviet rudiment in the form of prosecutors supervision. The Constitution should also be amended in order to ratify the Statute of the International criminal court. We consider as illogical and irresponsible the further keeping by Yulia Timoshenko and Oleksandr Turchynov of signatures of deputies under the presentation to the Constitutional court of Ukraine. Obvious violation of the procedure of approval of constitutional amendments should be appropriately evaluated by the Constitutional court of Ukraine.
2. We accepted with indignation the veto imposed by the President of Ukraine on the Code of administrative legal procedure approved by the Supreme Rada of Ukraine. The Presidents arguments consist in the necessity of restriction of individuals right to appeal against normative decisions of the President of Ukraine. While in Ukraine there is no right for direct individual constitutional claim in case of violation of constitutional rights of a person, we consider such position as unacceptable and support the decision of the Committee of the Supreme Rada of Ukraine on legal policy on overcoming Presidents veto. We appeal to the President of Ukraine to revise his position and approve necessary staff decisions concerning the activities of his Secretariat, which caused introduction of the policy incompatible with human rights, and his actions, in particular.
3. The promises of informational openness, transparency and governments accountability to the society, which were given on Maydan during the Orange revolution, mostly remained unrealized. The President and the government of Ukraine continue illegal using of classifications “not for publishing” and “not for printing”, refuse to disclose illegally concealed decisions of Kuchmas government. The prosecutors office still does not make public its normative decisions and does not register them in the Ministry of Justice of Ukraine. Such actions make us resort to active deeds for conduction of the campaign for informational openness of the government, including judicial protection of the right for information.
4. The absence of respect of the government to the right for property increases distrust to the state both of Ukrainian citizens and international community. Every change of government must not mean redistribution of property. We regard as inadequate and illegal the statements of the state leaders about returning property to state ownership without appropriate court decisions, which have come to force, and moreover the creation of lists of enterprises for re-privatization, which violates the principle of persons innocence before the guilt has been proved in court.
5. There is a lack of understanding of the importance of judicial system, and its financing remains unsatisfactory. The initiative of Prime-minister of Ukraine Yulia Timoshenko to involve sponsors costs for financing of courts clearly demonstrates the absence of mechanisms of conceptual understanding of functioning of the judicial government and attitude to court as an independent full-fledged power branch. In addition, financing of courts, as it was during the period of L. Kuchmas ruling, is fully controlled by the executive branch of power, what substantially violates the principle of separation of powers. We also believe that the inclusion of the Head of the Supreme Court of Ukraine to the Council of national safety and defense of Ukraine by the Resolution of the President is a violation of the principle of separation of powers.
6. There are no initiatives on systematic reforming of law-enforcing organs in the sphere of criminal legal procedure. Staff renewal cannot democratize the system without the changes of functions and authorities of the system of the Ministry of Interior of Ukraine, the Security Service of Ukraine and prosecutors office. Unfortunately, in most cases the staff renewal lied in rotation of cadres, particularly on local level. It is proved by cases of appointment by the new government to responsible posts of persons, who participated, in 2004, in persecution of representatives of the opposition. The Committee of the Supreme Rada on legislative provision of law-enforcing organs still tries to “push through” the draft of the Criminal-procedural code elaborated by the government, which draft is based on the model of the Soviet inquisitional criminal legal procedure. The law-enforcing organs still regard as their merit the wide application of preventive measure in the form of taking into custody, especially in resonant cases, where famous politicians are involved. We reckon that the practice of pre-trial imprisonment contradicts the modern European standards on observing the right for liberty and personal immunity, unless it is reasoned by accusation of committing a grave or especially grave crime.
7. Oleksandr Turchynov, the head of the Security Service of Ukraine, stated about the disclosed facts of illegal wiretapping of telephone talks of leaders of the political opposition during Kuchmas times. At the same time there are no initiatives, which could make the activities of law-enforcing organs accountable to the society, including the questions of information interchange. The Security Service of Ukraine continues to introduce the system of monitoring of telecommunications via several Internet providers. Order No. 122 of the State committee of communication, introducing the control over users of the Internet, still acts because of the wish of the USS to preserve this form of control over the society. The USS continues to use the “black lists” of people undesirable to visit Ukraine. These lists contain the names of the opponents of authoritarian regimes, for example, the Buddhism monk Dzunsey Terasava, famous for his criticism of military crimes of Russian troops in Chechnya, who was admitted to Ukraine only under pressure of the community.
8. Human rights organizations still receive complaints against the application of torture and cruel treatment during inquiry and pre-trial investigation. The efficient measures for counteraction to militias tortures are not introduced until now. Consideration of the complaints against the actions of law-enforcing organs is, as a rule, perfunctory and preconceived. It is significant that most of citizens appeals to the Ministry of Interior of Ukraine are received in the form of complaints against the actions of bodies of the Ministry of Interior of Ukraine and considerably exceed the number of claims about crimes.
9. We regard as fundamentally incorrect the position stated by Roman Zvarych, the Minister of Justice of Ukraine, concerning preservation of the existing system of legal aid, when the state actually does not pay for lawyers work in case of providing gratis service. The current system needs immediate and radical reforming, since it violates the right for access to justice and rendering of efficient legal aid to poor layers of population.
10. The right for peaceful assemblies, guaranteed by the Constitution, is violated in Ukraine. The power bodies of Kyiv are especially sensitive to critical statements during peaceful assemblies. The attacks on the tent camp and administrative detention of public activists have not remained only the chronicle of illegal actions of the old government, but are happening in Kyiv in May 2005. Active realization by citizens of the right for free expression of views and peaceful assemblies resulted in the change of government in 2004. We appeal to the President, the government and the local power to respect these fundamental rights.
Head of the Board of the Ukrainian Helsinki Human Rights Union
Short information about “Ukrainian Helsinki Human Rights Union”. The purpose of creation and functioning of the Association is provision and protection of the rights and fundamental freedoms through ensuring of practical execution of the humanitarian articles of the Helsinki Final Act (1975) of the Organization on Security and Cooperation in Europe (OCSE), other documents adopted as its follow-up, and all other obligations taken by Ukraine in the field of human rights and fundamental freedoms.
Members of the Association:
1. Vinnitsa City Public Organization “Vinnitsa Human Rights Group”
2. Ukrainian Community of Political Prisoners and Repressed, including Committee “Helsinki-90”.
3. Public Committee for Protection Citizens Rights and Freedoms (Lugansk)
4. Ecological Club “EOL” (Odessa region)
5. Economic and Social Problems Institute “Respublika” (Kyiv)
6. Congress of National Communities of Ukraine
7. Youth Public Organization Legal and Political Research Center “ SIM” (Lviv)
8. City Public Organization “For Professional Help” (Poltava Region)
9. Sevastopol Human Rights Group
10. Kharkov Regional Union of Soldiers Mothers
11. Kharkov Human Rights protection Group
12. Kherson City Reporters Association “Pivden”
13. Kherson Regional Organization of the Committee of Voters of Ukraine
14. Center of Regional Politics Research
15. Chernigiv Public Committee of Human Rights Protection
Well-known participants of the Helsinki movement in Ukrainian were elected to the Supervisory board of the Association: Josyp Zisels, Vasyl Ovsienko, Vasyl Lisovy, Mykola Gorbal, Evhen Sverstiuk, Zinoviy Antoniuk and Evhen Proniuk.
The right to liberty and security
Court decision on illegal detention
13 May 2005
The local Ordzhonikidzevskiy district court of Kharkiv consisting of:
chairman – judge A. Klimenko, secretary L. Valkovksaya; with participation of: prosecutor K. Yarmak, advocate G. Tokarev, investigating officer T. Kuts, considered at the opened court sitting in the city of Kharkiv the complaint of advocate Gennadiy Tokarev in the interests of his client H. against the illegal detention of the suspected of commitment of a crime.
The organ of pre-trial investigation accuses H. of commitment of the crime envisaged by part 3 of Article 187 of the Criminal Code of Ukraine. On 6 May 2005 the Ordzhonikidzevskiy district court of Kharkiv took the decision about the preventive measure regarding H. in the form of holding in custody in temporary detention center No. 27 of the Kharkiv region.
On 10 May G. Tokarev, the advocate of the accused, handed to court a complaint about illegality of the detention. In this complaint the advocate demands to recognize as illegal the detention of his client H. by the officers of the Ordzhonikidzevskiy district department of the Ministry of Interior, referring to the following arguments:
- the norms of the Criminal-Procedural Code of Ukraine does not establish the authority of an inquiry organ or an investigating officer to detain, without judges permission, a person on suspicion of a crime after its commitment, and detention by the investigating officer of his client on suspicion of a crime, committed long before the moment of detention, is an obvious violation of Article 29 of the Constitution of Ukraine;
- factual detention of H. took place in evening of 1 May 2005 at the place of his residence; since that moment he has been continuously hold in custody during 120 hours before his transportation to court (on 16 May 2005 at about 17:00) without the observance of procedural order of detention, both in the framework of administrative and criminal proceedings;
- the protocol of H.s detention in accordance with Article 115 of the CPC of Ukraine contains the reasons of the detention, which are not stipulated by laws.
Prosecutor regarded the arguments of the complaint as ungrounded, and the complaint – as not liable to consideration. He explained that on 1 May 2005 H. had been transported by militia officers to the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region in the connection with family brawl, which had occurred at the place of his residence. During the personal search the law-enforcers found in the pockets of H.s clothes and seized a substance of vegetative origin, and because of this H. was detained for the term up to 3 days according to the procedure envisaged by Article 263 of the Administrative Code of Ukraine as a person suspected of storage of narcotic drugs. On 4 May 2005 the experts of the laboratory of the Kharkiv regional department of the Ministry of Interior of Ukraine came to the conclusion that the substance, confiscated from H., was not a narcotic or psychotropic drug. In this connection, on 4 May, at about 8 p.m., H. was released and at once detained repeatedly by investigating officer T. Kuts in accordance with the procedure established by Article 115 of the CPC of Ukraine as a person suspected of committing a crime envisaged by part 2 of Article 187 of the Criminal Code of Ukraine.
Investigating officer of the Ordzhonikidzevskiy district militia department T. Kuts also reckoned that the complaint was groundless. She explained to court that immediately after H.s detention in accordance with Article 115 of the CPC of prison, at 20:10, he had been familiarized with his constitutional and procedural rights, including the right to meet advocate from the very moment of detention, proper protocols had been compiled, after which he had been interrogated as a suspect.
The accused was not brought to court, since for transportation from temporary detention center No. 27 the investigation officer had to hand the corresponding application three days before the event, and the notification about consideration of the complaint was received by the investigating officer only on 11 May 2005.
Having listened to the claimant, prosecutor and the investigating officer in charge of the criminal case of H., having analyzed the materials of the case, having checked and assessed the collected proofs, the court reckons that the complaint is valid and must be satisfied.
The court have established that on 1 May 2005, about 4 p.m., the officers of the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region, who came by call to H.s dwelling because of a family brawl, transported H. to the Ordzhonikidzevskiy district department. In the course of personal search detective of the district department Bondarev found a substance of vegetative origin in the pockets of H.s clothes. Protocol about confiscation of this substance was compiled. In compliance with Article 263 of the Administrative Code of Ukraine, on 1 May 2005, at 10 p.m., H. was detained for the term up to 3 days as a person suspected of violation of the rules of circulation of narcotic drugs. On 3 May 2005 the confiscated substance was directed for expertise to the scientific institute of expertise at the Kharkiv regional department of the Ministry of Interior. According to experts conclusion No. 1270 of 4 May 2005, the substance, confiscated from H., was not a narcotic or psychotropic drug, in which connection on 4 May at 20:00 H., as a detained according to the Code on administrative offences, was released. Yet, he was at once detained by the investigating officer of the Ordzhonikidzevskiy district department of the Ministry of Interior on the basis of Article 115 of the CPC of Ukraine on suspicion of commitment of the crime envisaged by part 2 of Article 187 of the CC of Ukraine. The detention was based on the reason that the suspected was “caught after commitment of a crime”; the motive of the detention was prevention of the possibility of the suspect to hide. On 6 May 2005, about 6 p.m., the Ordzhonikidzevskiy district court of Kharkiv satisfied the appeal of the investigating officer of the district militia department, and the preventive measure in the form of holding in custody was chosen regarding H.
Detention of a person suspected of commitment of a crime is realized by an investigating officer in compliance with Article 115 of the Criminal-Procedural Code of Ukraine with observance of the demands established by Article 106 of the CPC of Ukraine.
Article 106 of the CPC of Ukraine contains the exhaustive list of circumstances, which can be the ground for detention of a person suspected of commitment of a crime. One of such grounds is detention of the person immediately after commitment of the crime. According to the accusation, preferred to H., he committed the crime envisaged by part 3 of Article 187 of the CC of Ukraine on 12 April 2005. Detention of H. by the investigating officer on the basis of Article 115 of the CPC of Ukraine took place on 4 May 2005, which in no way cannot be regarded as detention immediately after commitment of the crime.
According to protocol of detention of H. on the basis of Article 115 of the CPC of Ukraine, his detention was motivated by the reason that H. could hide from investigation and court. Such reason is not envisaged by Article 106 of the CPC of Ukraine as a ground for detention of a person suspected of commitment of a crime. No data, which confirmed that at the moment of H.s detention by the investigating officer (8 p.m. of 4 May 2005) he had tried to escape from law-enforcers, were not presented to court. On the contrary, it was established in the course of the trial that before this moment H. had stayed in the building of the Ordzhonikidzevskiy district militia department as a person detained in the framework of legal proceedings on an administrative offence and, according to the book of registration of the detained of the Ordzhonikidzevskiy district militia station, he, in fact, had not been released at 8 p.m. of 4 May 2005, but was at once passed to investigating officer T. Kuts.
Under such circumstances the court reckons that the detention of H. on the suspicion of commitment of a crime by the investigating officer of the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region on 4 May 2005 at 20:00 on the basis of Article 115 of the CPC of Ukraine was carried out with violation of the demands of Article 106 of the CPC of Ukraine and was illegal.
Being governed by Articles 106, 115, 165-2 of the CPC of Ukraine, Article 29 of the Constitution of Ukraine, the court
To satisfy the complaint of advocate Gennadiy Tokarev in interests of his client H. against illegality of the detention of the suspect of commitment of a crime.
To recognize the detention carried out on 4 May 2005 by the investigating officer of the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region on the basis of Article 115 of the CPC of Ukraine of H., suspected of commitment of the crime envisaged by part 3 of Article 187 of the CC of Ukraine, as illegal.
Appeal against this resolution can be handed to the Appeal court of the Kharkiv region through the district court within 7 days.
Judge: A. Klimenko
The KhG commentary. The complaint against illegality of the detention of the suspected of commitment of a crime on the basis of Article 115 contain the arguments, which are mentioned in the court resolution:
1) violation of the provisions of Article 29 of the Constitution of Ukraine;
2) detention of the suspect on the basis of reasons, not envisaged by law.
As to the first argument of the complaint, we want to point out the following. Article 5 (item 1c) of the European Convention on the protection of human rights and fundamental freedoms permits the deprivation of liberty in the case of legal arrest or detention of a person for bringing him/her to a competent court organ on the well-grounded suspicion of commitment of an offence or in the case, where there are the reasons to suppose that it is necessary to prevent commitment of an offence by this person or to prevent his/her escape after commitment of an offence.
Article 29 of the Constitution of Ukraine envisages greater amount of guarantees of human rights for liberty and personal immunity than Article 5 of the Convention. So, part 2 of Article 29 of the Constitution formulates the general rule of deprivation of a person of liberty: only after motivated court decision and only on the basis and according to the procedure established by law. This norm has obvious similarity to the rule stipulated in the 4th amendment to the USA Constitution in the part of rendering of the right for arrest of a person in presence of the well-founded court warrant. Article 3 of Article 29 of the Constitution of Ukraine gives the exception from the general rule: the competent organ has the right for holding in custody as a temporary preventive measure. However, part 3 of the article also determines the necessary conditions for application of such measure by means of specification of the goals of its application: to prevent a crime or to stop it. Thus, this Constitutional norm establishes, in the implicit form, the temporal limits of the authorities of state organs concerning the application of this measure – before the commitment of a crime (in case of prevention of the crime) or at the moment of its commitment (in case of stopping of the crime). Although Article 29 of the Constitution of Ukraine does not contain the term “detention”, which is used in Article 106 of the CPC of Ukraine that regulates detention of a suspected of commitment of a crime, part 2 of Article 29 of the Constitution of Ukraine covers all cases of deprivation of liberty of a person, including detention of a suspect.
Thus, the Constitution of Ukraine does not permit the temporary preventive measure in the form of holding in custody after commitment of a crime. In such case the competent organs must follow the general rule (part 2 Article 29 of the Constitution), that is turn to court for permission for detention of a person staying at large, and this procedure is regulated by part 4 of Article 165-2 of the CPC.
In accordance with Article 19 of the Constitution of Ukraine, all state organs and officials must act only on the basis, within the limits and by means envisaged by the Constitution and laws of Ukraine. Reading the text of part 1 of Article 106 of the CPC of Ukraine, one can think that it gives the right to competent organs to detain a person suspected of commitment of a crime, in particular, after its commitment. However, since the Constitution of Ukraine, in view of Article 3, has the superior juridical force, no other normative act can broaden the authorities of state organs, envisaged by it. So, all grounds for detention of a person suspected of commitment of a crime, stated in Article 106 of the CPC, may be applied only with observance of the demands, stipulated by part 3 of Ukraine 29 of the Constitution of Ukraine, that is only for prevention or stop of a crime.
The event of the crime, of which the detained is suspected, took place three weeks before his detention by the investigating officer on the basis of Article 115 of the CPC of Ukraine. Thus, in that case the investigating officer had no necessity either to prevent or to stop the crime. So, the investigating officer, who detained the suspect, obviously exceeded the limits of his authorities provided by the Constitution of Ukraine. Although such practice of detention of suspects after commitment of crimes by them is rather common for law-enforcing organs, this is a direct violation of part 3 of Article 29 of the Constitution of Ukraine. So, the considered detention can be regarded as illegal only on the basis of violation of part 3 of Article 29 of the Constitution.
As to the second argument of the complaint, part 1 of Article 106 of the CPC of Ukraine mentions, as one of the reasons for detention of a person, the following situation: “when the person was caught during commitment of a crime or immediately after its commitment”. This norm, in compliance with the provision of part 3 of Article 29 of the Constitution of Ukraine (“prevention of a crime”) renders the right for detention of a suspect at the moment of commitment of a crime or during the pursuit of the suspect “hot on the trail”. The investigating officer wrote in the protocol of detention of the suspect that the latter “was caught after commitment of the crime”. Naturally, the word “after” does not mean “immediately after”, and, as the judge pointed out in his resolution, detention of the suspected three weeks after the crime in no way may be considered as detention immediately after commitment of the crime.
It follows from part 3 of Article 106 of the CPC, although indirectly, that for detention of a person as a suspected not only grounds are needed, but also motives of the detention. The protocol of detention adduces the motive: “can hide from investigation and court”. In the course of consideration of the complaint the judge decided that there were no data in the materials of the case, which proved such conclusion of the investigating officer.
The complaint also brings up the question about non-observance of the procedure of detention of a suspect, envisaged by law, since, in fact, he was detained by detectives three days before the moment of compilation of the protocol on the detention in accordance with Article 115 of the CPC of Ukraine, and, correspondingly, the constitutional norm on the 72-hour maximal term of detention was violated. In this connection the prosecutors office presented a number of documents on administrative detention of the suspected of violation of the rules of circulation of narcotic drugs, as well as the resolution on refusal to institute the criminal case for commitment of crimes in the sphere of circulation of narcotic drugs. It was impossible to refute the authenticity of these documents without their detailed study. So, holding of the detained in custody during first three days was not acknowledged by judge as illegal.
The reference to Article 29 of the Constitution in the end of the motivation part of the resolution is worthy of notice, since it evidences that the court recognized the violation of the provisions of this article.
Gennadiy Tokarev, advocate
The right to a fair trial
Decision of the European Court in Sergey Chizhovs case
The day before yesterday the European Court of human rights made public its decision in the case Sergey Chizhov vs. Ukraine (claim No. 6962/02). He complained against Ukraine in the connection with non-fulfillment of the court decision about paying out the compensation for illegal arrest, which violated his right for fair trial. The European Court supported the claimant.
This case started in October 1997 in Zaporozhye, when two militiamen detained Chizhov and placed transported him to a sobering-up station. At this they beat him a little, and after that he was even brought to hospital. And the next day militiamen decided to carry the case through and accused Chizhov of an attempt to bribe them. Yet, three weeks later the Leninskiy district court of Zaporozhye acquitted Chizhov.
So, since Chizhov was fully acquitted, he turned to the prosecutors office with the complaint against the illegal actions of militiamen.
There was no reaction, and in February 1998 he brought a civil action against the district militia department demanding the compensation of damage inflicted by the illegal actions of militia. Only in March the prosecutors office instituted a criminal case against the militia officers.
As a result, on 29 January 1999 the Leninskiy district court of Zaporozhye issued the verdict, which convicted two militiamen for three years on probation for exceeding their official authorities and inflicting physical injuries to Chizhov. Besides, Chizhov had to obtain the compensation for illegal militia actions equal to 3709.13 hryvnas (831 euros). The regional court supported the verdict.
However, this decision was not fulfilled. The state treasury confirmed that the district department of militia did not have money for that. The claimant handed the petition about arrest of property of the debtor (the militia station), but the court stated that it was forbidden by the law, and later – that there was no property. Then the red tape began in the executive service, treasury and courts.
Having not found the truth in his country, in 2002 Chizhov submitted a claim to the European Court of human rights. Then the process revived in Ukraine, and the decision about the compensation was executed only on 14 August 2003, though actually Chizhov lost about 200 euros because of inflation.
The European Court of human rights decided that such a long term (more than 4 years) of execution of the court decision made the right for fair trial senseless, that is there Article 6 of the European Convention on the protection of human rights and fundamental freedoms was violated. In other words, reference to a court becomes a fiction, since its decisions are not fulfilled. “The state is responsible for introduction of the mechanisms of execution of court decisions so that they are fulfilled without delays”, reads the decision of the European Court.
Besides, the Court acknowledged that there were no efficient tools for protection of this right in Ukraine, in particular, concerning the influence on execution of court decisions. That is why the violation by Ukraine of Article 13 of the Convention was also recognized.
Moreover, this unanimous decision the Court adjudged to Chizhov the compensation of 2500 euros for the inflicted material and non-material damage.
Kuchma left, Kuchmism remained
“I swear – … Everybody will be equal before the law. Independent court will protect the rights of everybody. I see Ukraine as a state, governed by superiority of right” (from the appeal of President of Ukraine Viktor Yushchenko to Ukrainian people, declared on 23 February 2005 on the Nezalezhnost Square in Kyiv).
The activities of new President in many cases evidence on legal nihilism and disdain for the demands of the Constitution and Ukrainian laws of the team that provides this direction of Presidents responsibility. Such attitude to right was not only a peculiarity of Kuchmas regime, but also became one of the reasons of the phenomena, which got the name “Kuchmism”. After the appeals of V. Yushchenko on the necessity to guarantee the superiority of right in the state, the hope has appeared that the people would feel themselves protected from the arbitrary actions of power, protected by right and independent court. The corresponding item was in Yushchenkos election program.
On 17 March 2005 the Supreme Council approved the Code of administrative legal proceedings. This Code had to become the procedural basis for introduction of administrative justice and to guarantee the proper level of protection of human rights from the violations on the side of power. The preparation of this Code lasted for almost ten years. This document appeared to be a peculiar test for Presidents willingness to fulfill his promises concerning the principle of superiority of right in our state. On 20 April the President vetoed the Code of administrative legal proceedings, adopted by the Parliament.
Of course, the very application of the veto right to the Code cannot evidence about fulfillment or non-fulfillment of the pre-election promises, since it is a constitutional right of the President. He, being a guarantor of the Constitution, cannot allow coming into effect of an imperfect, and especially anti-constitutional law. However, the reasons for return of the Code of administrative legal proceedings for the repeated consideration of the Parliament has another meaning.
Something about the European tendency
In the opinion of the President (or, to be more exact, his Secretariat), normative-legal acts of the Head of the state, the Ukrainian government and the Supreme Council of the Crimean Autonomous republic must not be within the jurisdiction of administrative courts and other courts of general jurisdiction, only of the Constitutional Court. In other words, reasoning from the logics of veto, a person, whose rights have been violated by an illegal normative act of the President of Ukraine, Cabinet of Ministers of Ukraine or the Supreme Council of the Crimea, cannot find the protection in court, since this person has no right to turn to the Constitutional Court. Besides, the Constitutional Court considers such acts only from the viewpoint of their conformity with the Constitution, but not with laws. Such interpretation of the principles of separation of power and superiority of right, new for the doctrine and international practice, was invented in administration of President Leonid Kuchma and was more than once used for vetoing the Law “On the Cabinet of Ministers of Ukraine”.
Yet, for realization of the position of both former and new Presidents of Ukraine it is necessary to introduce changes into the Constitution, since it stipulates the following:
“Human and citizens rights and freedoms are protected by court. Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers” (Article 55);
«The jurisdiction of the courts extends to all legal relations that arise in the State» (Article 124).
A number of decisions of the Constitutional Court should be reconsidered in the same manner. According to one of them, “decrees and orders of the President of Ukraine are sublegal acts (part 3 of Article 106 of the Constitution of Ukraine), that is the acts that are adopted on the basis and for fulfillment of the Constitution and laws of Ukraine and must agree with them. So, they can be checked for compliance not only with the Constitution, but also with the laws of Ukraine. Check of legality of the above-mentioned acts is a function of courts of general jurisdiction”.
According to other decision of the Constitutional Court, authorities of the courts of general jurisdiction “concerning consideration of the cases, one side in which is the Cabinet of Ministers of Ukraine, including the cases connected with conflicts on acknowledgement as invalid of its acts, on the grounds established by laws, agrees with part 2 of Article 124 of the Constitution of Ukraine, according to which “jurisdiction of the courts extends to all legal relations that arise in the state”. The authority of the Constitutional Court of Ukraine comprises deciding on issues of conformity with the Constitution of Ukraine (constitutionality) of the acts of the Cabinet of Ministers of Ukraine (item 1, part 1 of Article 150 of the Constitution of Ukraine), but not on their legality».
It will be also necessary to introduce changes into the Constitution of the Autonomous Crimean republic, since, according to it, the normative-legal acts of the Crimean Supreme Council can be appealed in court by the persons, whose rights and interests are violated, and court can acknowledge such acts as illegal.
Maybe, we will have to resign the obligation of Ukraine to obey the European Convention on protection of human rights and fundamental freedoms, which guarantees to everybody the right for efficient mechanisms of legal protection of rights and freedoms in corresponding national organs, even if such violation has been committed by official persons. And this implies the direct way from the Council of Europe. Is this the promised European tendency of policy of the new Ukrainian President?
And who are the judges?
The second reason for vetoing of the Code of administrative legal proceedings is the invented and distorted interpretation of the Constitutional norm, which reads that the posts of judges of special courts can be occupied only by persons, who are the professionals in questions of jurisdiction of these courts, and such judges must do justice only in composition of collegiums of judges. In the opinion of the President, this means that legal proceedings in circuit administrative courts should be realized only by collegiums of judges, and the Code, adopted by the Parliament, also envisages the possibility of personal solution of cases. If it is so, then practically all decisions, taken by economic courts since 1996, may be considered as unconstitutional, since they ware taken by judge personally. Moreover, it would be rather strange, if all, even insignificant, cases would be considered in circuit administrative and economic courts only by collegiums of judges, whereas the majority of criminal cases are considered in general courts by one judge. Well, the question about acknowledgement of a person to be guilty of commitment of a crime is solved in criminal cases!
In reality, the logics of the Constitution is quite different. It permits to be the judges of special courts not only to lawyers, but also to professionals in other spheres, which concern the corresponding court jurisdiction. Yet, in order to prevent the situation, when the opinion of judges-not-lawyers would dominate in consideration of the case, it is stipulated that they carry out the legal proceedings in composition of a collegium of judges jointly with judges-lawyers. By the way, such approach is also realized in the Law “On judicial system of Ukraine” (Article 59). On the other side, not a single not-lawyer has not used this mechanism yet for becoming a judge, so now only lawyers work as judges.
In the part of integration of collegial and personal court consideration of administrative cases the Code agrees not only with the Constitution of Ukraine, but also with the experience of European countries in the sphere of administrative justice, in particular Recommendation R (86)12 of 16 September 1986 of the Committee of Ministers of the Council of Europe to the states-members on the measures for prevention and reduction of the excessive work loading of courts. This document suggests to the states “to practice widely, where it is not done yet, passing of cases to consideration of one judge in the first instance in all corresponding questions”.
Thus, the propositions of the President are directed at the restriction of human right for court protection and look rather strained. It seems that Presidents team is interested in deceleration of introduction of administrative justice in Ukraine, which should guarantee the independent and efficient court protection of citizens from the arbitrary actions of power. Moreover, the President proposes to deprive citizens and juridical persons of the constitutional right to appeal against the normative-legal acts of the President, Ukrainian government and the Supreme Council of the Crimean Autonomous republic. Today they have such constitutional right. And the courts of general jurisdiction consider the corresponding cases. According to the Constitution, the constitutional right to appeal against decisions, activities or passivity of power organs may not be restricted (Article 64), and the content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws (Article 22).
We hope that is it only an inadvertence of Viktor Yushchenko, but not his conscious position. It seems that the new President of Ukraine inherited the juridical service from the team of his predecessor, together with its legal nihilism. Yet, the President must understand that it is he, but not his juridical service, who is responsible to the Ukrainian people.
Ukraine continues paying out salary debts through the European court for human rights
Yesterday the European court for human rights pronounced verdicts on three cases against Ukraine unanimously recognizing the violation by the country of the right for fair trial and the right for free management of ones property, as well as the absence of efficient national tools for protection of these rights in Ukraine. Besides, violation of the right for fair trial because of unreasonable term of trial was acknowledged in one case.
In these cases Ukrainians Viktor Demchenko (Donetsk), Valeriy Vasylenkov (Novogrodovka), Sergiy Hryshchenko, Volodymir Kayurov, Anatoliy Zavgorodiansky, Marina Tomayly, Olga Lopatina (all from Zhovti Vody) complained that during 1999-2001 court decisions in their favor were had been issued, which had come to force. According to these decisions they had to obtain different payments, but the decisions have not been fulfilled.
The European court for human rights pointed out in its decisions that non-fulfillment of court decisions during more than 2-3 years makes the existence of the right for fair trial senseless (Article 6 of the European Convention on the protection of human rights and fundamental freedoms). At that the government did not provide arguments, which could justify such duration of non-fulfillment of the decisions. Since during all this time the claimants could not use their legal property (their money), in two cases the court also recognized violation by the state the right of these persons for property.
The European court for human rights obliged Ukraine to pay out to the claimants the total sum of 10 thousand 800 euros (2040-2400 euros to each).
In one more case after the claim of Kyiv dweller Mykola Strannikov the European court for human rights also recognized the violation by Ukraine of the right for fair trial, but for another reason.
As early as in 1995 he brought a suit regarding his acknowledgement as the founder of a private enterprise (Kyiv timber plant) and payment of the compensation by this plant. This case was investigated for 8 years and 8 months in courts of four levels and was not solved. The European court unanimously recognized this term to be “unreasonable” in the context of duration of its consideration. The court decided that the claimant had to get the compensation of 2 thousand euro for the inflicted damage.
Decisions on these cases will become final, unless the government appeals against them within the some period of time. However, in such cases it happens extremely seldom.
5 May 2005
Freedom of expression
Ukrainian mass media still preserve the features of authoritarian press
Summarizing results of interaction of mass media and the new government during the first hundred days, media experts point out some improvement of standards of journalistic activities, but the situation with the freedom of speech remains far from ideal.
Yesterday, at a press-conference at UNIAN, representatives of the Academy of the Ukrainian Press, the Independent media trade union of Ukraine, the Independent media trade union of Kyiv and the Institute of mass information presented results of an expert poll regarding the format of interrelations between the government and media in Ukraine, aw well as the materials of the research concerning elucidation of major political events by leading TV channels of Ukraine.
In the opinion of Valeriy Ivanov, the president of the Academy of the Ukrainian Press, at present one can speak about cooperation of mass media and the government just conditionally. According to him, today mass media do not perform their main function, peculiar to the democratic press – control of the actions of government. In this respect, the position of the so-called “oppositional” mass media, feeding their audience with “poisoned sandwiches”, especially disturbs: on the one hand, they show as if loyal attitude to the government, and on the other hand, journalists demonstrate ambiguous, implicit appraisal of its actions.
Such situation was formed, above all, due to dependence of employees of some mass media on their owners, direct intrusion into editorial policy on the side of representatives of political forces. However, he believes that, on the whole, the standards of journalistic activities have become much better.
The actions of some representatives of the state apparatus are not very consolatory too. In particular, as V. Ivanov reckons, the Secretariat of the President acts against the democratic principle of mass media, which is proved by statements of Mr. Zinchenko and Mr. Lubkivsky regarding the postponement for indefinite period (at least until the parliamentary election) the organization of public broadcast and revival of state mass media. The president of the Academy of the Ukrainian Press pointed out that mass media should oppose such antidemocratic wishes of the government themselves.
Besides, participants of the press conference pointed out that the administrative pressure on mass media occurred, but, as a rule, it was observed on regional level and was not a result of the state policy. Among the problems of mass media, which were inherited from the old regime, he also pointed out the limitations of journalists right for access to information and absence of reaction of state officials to information in mass media.
Evhen Hlibovytsky, the head of the Independent media trade union of Kyiv, informed at the press conference about establishment of “a rating of enemies of the Ukrainian press”. He declared that the Independent media trade union of Kyiv took the decision to initiate this rating since this year.
The methodology, according to which the rating will be formed, will be made public before 16 September 2005, the rating will be made public at the end of every year. It will consist of “the people who caused the most problems to the free press in Ukraine during a calendar year”.
Besides, he said that the Independent media trade union of Kyiv and the Independent media trade union of Ukraine commenced the process of uniting, which, in his opinion, would last for a long time. Evhen Hlibovytsky pointed out that the united trade union would be the first association in Ukraine, which would join the International federation of journalists.
Open letter of the Association of media-lawyers of the Lviv region
The past year became a real challenge to mass media. Censorship, “temniks”, administrative and physical pressure were intended to keep down mass media, to make them servants of the ruling regime. Fortunately, this plan failed, and, as a result, mass media played an important role in democratic transformations in our country.
In general, the change of power in Ukraine positively affected the situation with the freedom of speech. Today mass media have more opportunities for free and independent work. The policy of non-interference into the work of mass media, publicly declared by power, is gradually realized. The shameful practice of “temniks” and censorship of journalists work is ceased on the central level.
At the same time, the statement that the problem of freedom of speech in Ukraine is solved, is, to put it mildly, an exaggeration. This especially concerns the regions, where local power organs still want to control mass media and influence editorial policy, thus exerting pressure on mass media. Unfortunately, such forms of “cooperation” with mass media are practiced in Lviv even after the Orange Revolution.
This is confirmed by the situation with the Lviv town newspaper “Ratusha”, which has been made to publish a discreditable and slanderous material. It can be said to the credit of journalists and editorial board of “Ratusha” that they refused to spread the ordered material and told to public about the pressure put upon them. It became known that the demand to publish the material was received by the newspaper by e-mail and was accompanied with oral instructions. Although the corresponding letter-order has not been signed, this does not relieve its authors of responsibility. In this connection we want to remind that “temniks” of the former Presidents administration were also spread without proper signatures, blanks and stamps. Nevertheless, all world community acknowledged this phenomenon to be an unprecedented form of censorship and illegal influence on mass media.
The Association of media-lawyers of the Lviv region is a union of lawyers of leading Lviv mass media and professionals in the sphere of mass media. The Association declares about inadmissibility of meddling into professional activities of journalists. Forcing to distribution of some information is a violation of law, which entails responsibility. We also want to remind the text of Article 45-1 of the Law of Ukraine “On information”:
“Article 45-1. Prohibition of censorship and prohibition of interference in the professional activities of journalists and mass media on the side of organs of state power or organs of local self-government, their officials.
Interference in the forms, which are not envisaged by Ukrainian legislation or the agreement concluded between the founder (co-founders) and editorial board of mass medium, is prohibited, as well as interference into professional activities of journalists, control over the contents of spread information on the side of founders (co-founders) of mass media, organs of state power or organs of local self-government, officials of these organs, in particular for the purpose of distribution of not-distribution of certain information, concealment of socially important information, prohibition to show certain persons or to spread information about them, prohibition to criticize the organs of state power or organs of local self-government, their officials.”
At the same time, representatives of the Association of media-lawyers of the Lviv region are sure that now one must not organize the “witch-hunting”. As a result of public discussion of the problem the mechanism should appear, which would allow to prevent such shameful incidents in future, since the main reason of the conflict around the newspaper “Ratusha” was not so much subjective factors as the uncertainty of legal status of state and communal mass media.
In this connection the Association of media-lawyers of the Lviv region consider necessary to initiate the process of reforming the communal media-sector and proposes its juridical and analytical aid to all interested sides.
Deputy Head of the Association of media-lawyers of the Lviv region
e-mail: [email protected]
Is militia with people? (Open letter to Minister of Interior of Ukraine Yu. Lutsenko)
Respected Minister Lutsenko!
In the beginning of May our organization received from the Kharkiv Regional Department of the Ministry of Interior seven letters Nos. 46/811, 46/812, 46/813, 46/814, 46/815 and 46/816 of 12 April signed by I. Repeshko, the head of the Department. Copies of these letters are attached. The letters informed about the results of check of the information published on the site “Maydan”, which concerned the violations of operating laws by officers of law-enforcing organs. Check of the information was carried out on your errand and no violations on the side of law-enforcers were disclosed.
The results of such “check” arouse indignation, since they do not represent the facts in at least three cases. I can testify that, because I personally took part in the events, described on the site “Maydan”.
So, letter No. 46/814 reads (there and further the style of letters is reproduced exactly): “On 16 November 2004, at 9 a.m., citizens Ruslan Girman and Anton Vlasov were stopped by officers of the Leninskiy district militia station for inspection of documents. It appeared that Girman and Vlasov carried some agitation printed materials without proper dateline… For conduction of the additional check the mentioned citizens were transported to the Leninskiy district militia station, where they explained that they had got received the agitation materials from Kyiv and knew nothing about the contents. After explanation of circumstances citizens R. Girman and A. Vlasov were released, the agitation materials were not seized. In the course of conduction of service check the information on violations by officers of the Leninskiy district militia station was not objectively confirmed”.
In reality, two activists of “PORA” were detained at once after receiving by them of the parcel in “Avtolux” (a bus courier service. – Translators note); they were coercively taken into different cars and transported to the Leninskiy district militia station allegedly in order to learn that this parcel contained nothing criminal. In the cars passports of the detained were taken away. The agitation materials of “PORA”, which were passed through “Avtolux” – stickers, leaflets, etc., were seized in the district station. The young men stayed in militia until about 16:30 (at that the protocol of detention was not compiled), then they got their passports and were released. However, it appeared that the 11th page with the data on registration was torn out from the both passports. The complaint to prosecutors office about this fact was unsuccessful. So, some violations on the side of law-enforcers took place: illegal detention, illegal holding in the building of district station during about 5 hours and premeditated spoilage of passports.
Letters Nos. 46/815 and 46/816 communicate that the check of the information, placed on the “Maydan” site on 17 November 2004, has been conducted. The information concerned the detention by militia officers on 17 November of the participants of students action on the Svobody Square in Kharkiv. Letter No. 46/816 reads: “During the check is was found that on 17 November 2004 the citizens, who conducted the mass actions on the Svobody Square in Kharkiv, were not taken to the organs of internal affairs, and no information concerning this fact was registered”. Letter No. 46/815 states about the detention of participants of the action “Polosaty reis” (“Striped voyage”) and their holding in the Dzerzhinskiy district militia station the following: “in course of the check it was ascertained that on 17 November 2004 the citizens, who conducted this action, were not taken to the Dzerzhinskiy district militia station, and no information concerning this fact was registered”.
In fact, on 17 November 2004, about midday, 9 activists were illegally detained on the Svobody Square. The detained distributed agitation materials among the people present on the square. Three of the activists, who were older and more respectable, were released, and 6 young activists of “PORA” (5 Kyiv dwellers and one Kharkovite) were taken to the Dzerzhinskiy district station. The day before, on 16 November, there were some troubles with the group of activists from Kyiv. In particular, two of them were detained on Pushkinska Street, where they distributed the materials of “PORA” to the passers-by, and transported to the Kyivskiy district station, and nine other activists were blocked in a flat by tough guys in civil clothes and militiamen from the Kyivskiy district station (I called journalists, personally told to militiamen, and the persons in civilian disappeared at once). At night these guys tried to force into the flat, and in the morning did not let anybody out, and the activists of “PORA” could leave the flat only under the cameras of journalists. The youths went to the Svobody Square, where they were detained as soon as they took out their agitation materials. The same evening I personally went to the Dzerzhinskiy district militia station, communicated with its head Yuri Belianinov, who permitted me to feed the boys. Six young people spent the night in the militia station, and on the next day the trial was conducted, where the protocol on administrative violation was considered in accordance with Article 185 part 2 of the Code on administrative offences. The boys were defended by advocate Volodymir Zinchenko, who was invited by me late at night on 17 November. The petition was presented on summon of the officers of law-enforcing organs in the connection with their illegal actions: the advocate insisted that there had been no grounds for the detention. On the same day the “PORA” activists were released, and consideration of the case was postponed. Later there were two more court sittings on this case, and on 7 December the final decision was issued: the activists were released from administrative responsibility, and the court contended itself with oral reprimand.
It is interesting that the site of the Kharkiv regional Department of Ministry of Interior of Ukraine still contains two messages on the detention of six activists:
It is communicated that “on 17 November of the current year, on the Svoboda Square, militia officers detained six young people – dwellers of Kyiv aged from 18 to 20…”. Besides, the following is written in the second, more detailed, message:
“On 17 November of the current year, on the Svoboda Square, militia officers detained six young people – dwellers of Kyiv aged from 18 to 20, who distributed the agitation production of the public organization “PORA”, containing the statements that expressed disrespect for citizens of Ukraine and the appeals for disobedience to law-enforcers. The young people behaved aggressively, used unprintable words toward the law-enforcing officers. When the law-enforcers tried to detain them, they started a fight and showed resistance to the militiamen. One of the youths fell on the traffic area of the street, under the wheels of a route taxi, to which passengers were getting at that moment. A group of young people were taken to the Dzerzhinskiy Station of the Kharkiv City Department of the Ministry of Interior, where, in the course of search, the militiamen found and seized: many aerosol cans with orange paint, hats of white cloth with black stripes, agitation materials of the public organization “PORA” and gas container with the special substance “Teren-4”. The materials have been collected against the offenders in accordance with Article 185 of the Administrative Code of Ukraine (Malicious disobedience to legal order of militia officers)”.
The results of check of other cases are not trustworthy too. In my opinion, I. Repeshko, the new head of the Kharkiv regional department, should urgently and thoroughly examine, how these checks have been conducted, if their results contradict even the information on the events on the site of the department.
In your assessment of the first 100 days of the work of the Ministry of Interior you positively estimated the process of depolitization, decriminalization and purge of the ranks of the Ministry of Interior. I have to state that this statement can be applied to Kharkiv militia only partly, at best. This is confirmed by these “checks”, dismissal of Mykhaylo Pritula and the results of attestation, which has been completed recently. The Kharkiv group for human rights protection has plenty of unchecked information from various sources about the illegal actions of workers of law-enforcing organs in the Kharkiv region, but we do not pass this information to the commandment of the Ministry of Interior, since we cannot guarantee safety to those, who have given us this information, and cannot verify it by ourselves. Now, when we see the examples of checking such information, we do not consider necessary to pass it at all, because there is no assurance of the unbiased scrutiny and check of these data.
I believe that the main thing has not been done. It is extremely necessary to select militia officers, real professionals and patriots (as a rule, these characteristics coincide), and to create with their aid new Directorate of internal safety, in which we would confine. It should be expedient to dismiss the militiamen, who have smirched themselves with dishonorable deeds, and to return the real professionals, who have been dismissed before. Why, for example, nobody proposed to return to militia lieutenant colonel Yuri Kutepov, who was respected by everybody, or lieutenant-general Vitaliy Muzyka (many bad things are written and said about Muzyka, but I do not believe that, I believe in my own observations and impressions)?
I understand all complexity of the problem of reform of law-enforcing organs and I want to stress on the fact that joint efforts of Ministry of Interior and society are needed for realization of such reform. Yet, it seems that the feedback mechanisms do not exist, that the officials of the Ministry do not hear the society. And even do not want to hear. I would be very glad, if I am not right.
Taking into account the extreme social importance of this problem, I am sending this appeal in the form of an open letter, which is a common practice of interaction among human rights protecting organizations and state organs.
Co-chairman of the KhG, head of the Board of the Ukrainian Helsinki Union of human rights,
Member of the Board of the international association “Memorial”
Prisoners call for help
The editorial office of RUPOR has received a letter from Vinnitsa we are presenting below. We also sent this letter to the Ukrainian Helsinki Union for Human Rights, which informed us that they were already preparing an inquiry regarding it to the Ukrainian Ombudsman Nina Karpacheva.
Good day, dear editorial board!
Please publish this letter in your newspaper. We are appealing to Yulia Timoshenko. We would like to mention in advance that we are writing this letter not with the goal to punish somebody from the administration (God will judge them!), but to stop this disorder. The matter concerns the 81st and 86th colonies.
The administration urged us to vote for Yanukovich. At first we got some gifts: cigarettes, tea, vermicelli soups and the warning: “Everyone, who would vote for Viktor Yushchenko, would be beaten”. Yet, many of us voted for Viktor Yushchenko. Chief of colony No. 81 Mahomayev ordered to beat everyone, who had voted for Viktor Yushchenko. We were closed in isolator and were beaten every day. The isolator was full of blood. The beating was not registered and medical aid was not provided. We were beaten by the ensigns on-duty. When Baniuk was the chief of the department, there were no such cases. We were not beaten, not deprived of health, we called ensigns “cops”, but not “fascists” like now, and the camp Stryzhivka was not called “Oswiecim”. They can beat for carrying your bread from the canteen, for anything, even because they just disliked your face! They force to do morning exercises at any weather, including old and sick persons. People lose consciousness.
The money we earn, which is added to our personal accounts, is not paid to us after release, it is impossible to send it to our relatives: this money exists only on paper. The canteen menu is only for commissions, in reality – pigs are fed better! Although there is subsidiary farming, but it is for the administration only. Dear editorial board, please, publish this letter so that the President and the Prime minister could read it. Help us! We are beseeching for your help!
There was detachment chief A. Bayakin in colony 81-2, who has been transferred later to colony No. 86. He demanded eggs and condensed milk from prisoners, because he went in for sports. And if you came back after an appointment with relatives and did not give a snack to ensigns, you can be regarded as a kamikaze.
Dear editorial board, it is impossible to tell about everything. It is impossible to send a complaint from these places, and those who complain are beaten and oppressed by all means. They make an infringer of a person and increase term. We get letters with delays, opened. The administration does not allot either soap, or any clothes. The law doesnt concern them, they do what they want.
Help us, make this letter public. When a commission comes and asks about life in the zone, everyone keeps silent, everything is OK, since nobody wants problems. This letter is our last hope that everyone will learn the truth about the violations of human (prisoners) rights, which take place here.
Several prisoners. We cannot mention our names.
Please, help US!
Lviv dwellers are indignant at construction by the USS directorate of apartment house on the burial place of political prisoners tortured by Soviet special services
On 20 May 20 activists of the public organization “Galytskiy vybir” conducted the picket of the USS directorate of the Lviv region with the demand to stop the construction of an apartment house on the place, where the NKVD officers had tortured to death thousands of Ukrainians and Poles. The participants of the action carried the slogans: “We protest against humiliation of the NKVD victims”, “Sons of NKVD hangmen, do not humiliate your victims”, “Todays USS is successor of NKVD traditions”, etc.
“If the USS would ignore our demands, we would continue our actions, and our further actions would be more large-scale”, stated former political prisoner Yuri Shukhevich in his speech before the picketers.
Besides the activists of “Galytskiy vybir” have prepared the appeal, which will be passed to the USS and the organs of local power. Not a single representative of the USS came to communicate with the picketers.
At the same time, it is planned to create the memorial “Museum of occupants terror” at this place. Such idea was expressed during the conference with participation of deputies of the Lviv regional council, town council, representatives of the regional administration, representatives of the prosecutors office, the USS, public figures and members of families of the perished in the NKVD torture chambers. The conference plans to create the appeal to the President of Ukraine, head of the Lviv regional administration, head of the USS and the prosecutors office.
Head of the press service of the USS directorate of the Lviv region Volodymir Krivoshiya declared in his speech that the USS was not a successor of the NKVD. Because of absence of funds the USS used the ground area, owned by it, for building of dwelling for its workers. He pointed out that it was necessary to carry out the definitive expertise of the land on the place of building and that the human remnants, which had been found at the building site could be brought there with soil form the Bogdan Khmelnitskiy park.
The USS directorate carries out the construction of the dwelling house by the address Stepan Bandera Street, 1. During the building some human remnants were found. Before the WW2 the transit prison of the NKVD was situated there. And there, by evidences of witnesses, the NKVD murdered several thousand of people.
Informational agency “Gal-info”, Lviv
22 May 2005
Kharkiv. Presentation of the book “Rehabilitated by history”
On 17 May 2005 Vasyl Tretetskiy, a deputy head of the Kharkiv regional state administration, and Nina Lapchinska, the head of the editorial-publishing group of the Kharkiv issue “Rehabilitated by history”, presented to journalists the first part of the first volume of the scientific-documentary series “Rehabilitated by history”, published in Kharkiv. The book contains the bibliographic references on 5785 persons, who were repressed during the period from 1919 to 1934. All in all, by words of Ms. Lapchinska, almost 13 thousand of bibliographic references on the victims of the red terror, will be included into the first volume.
Vasyl Tretetskiy pointed out, in his turn, that the scientific-documentary series of the books “Rehabilitated by history” was a unique edition, which had no analogues in world practice. The purpose of book is to return to Ukrainian people the undeservedly forgotten names of its state figures, masters of culture and scientists, to honor the memory of our compatriots, who had become the victims of political repressions. In the opinion the deputy head of the regional administration, the scientific project “Rehabilitated by history” would promote more profound study of the topic, which was under a ban of the Soviet power for many years. Vasyl Tretetskiy also believes that the memorial complex to all victims of political repressions, famine and liberation movement should be constructed in Kharkiv, which memorial would answer the scale of our national tragedy.
Press service of the Kharkiv regional organization of the UNP