“Prava Ludiny” (human rights) monthly bulletin, 2006, #05
The Law on the elections … and torture? Penal settlements and the elections Against torture and ill-treatment
Radio Svoboda: Observance of human rights in Ukrainian penal institutions Prisoner protest actions in Ukraine against cruel treatment from penal administrations Privacy
Medical certificates as per a joint Ministry Order make nonsense of medical confidentiality Is it correct to include passport data on railway tickets? Access to information
On the secretiveness of state bodies yet again… Environmental rights
Ukraines Ministry of Justice considers the deportation of Uzbek nationals illegal Court practices
Survey in military unit А 1915 Civic society
The Orange Revolution – 18 months later
The Law on the elections … and torture?
During the elections (both recent and previous ones) nobody reflected why there was so much unnecessary hype on voting day and during the following night and day. Nervous stress can be caused by many factors, but one of the main reasons (and common for almost all taking part in the elections) were electoral laws, since voting “day” for members of electoral commissions lasts not for one day, but for several days on end! The commissions, exhausted by long lack of sleep, convulsively count votes… Yet why is their work not organized in compliance with the demands of labour laws?
According to Article 83 § 1 of the Law of Ukraine “On the election of State Deputies of Ukraine”, “voting is carried out on election day from 7:00 to 22:00 without any breaks” The “workday” of the members of electoral commissions officially starts from the preparatory meeting at 6:15 (Article 82 § 3 of the same law), and in practice – much earlier, because in order to get to the meeting on time, the members must get up at 5 a.m. or even earlier. Thus a simple calculation shows that the “workday” of members of commissions during the election of 26 March 2006 lasted (without breaks!) at least 17 hours! And what then? Without any rest the “work-night” started, then “work-morning” and “workday” again, because “the vote counting of a district electoral commission is conducted without breaks” (Article 85 § 1 of the same “wise” law)… For example, representatives of most successful district commissions began to arrive at district commission No. 133 with protocols on their vote counts about 2 p.m. of the next day, 27 March (other members of the commissions were waiting at the station for probable specification of results). And they were the fastest! The unbroken “workday” of members of district electoral commissions on 26-27 March lasted at least 34 hours! And sometimes 40 or even more hours (the author was not able to wait for everybody). I would like to point out once more: all this was done without breaks, without sleep and any rest! (Territorial commissions and the Central Election Commission also worked, but their load was smaller). During the previous presidential elections the situation was similar, although the number of ballot papers was less (the elections of State Deputies on 26 March were combined with local elections of all levels).
It should be noted that, according to Article 50 of the Labour Code of Ukraine, “the normal working week of an employee cannot exceed 40 hours”. Yet during the elections the weekly norm in fact becomes a “workday”! In such a situation work in an electoral commission becomes real torture.
Article 127 of the Criminal Code of Ukraine states that torture is "the intentional infliction of severe physical pain and physical or mental suffering through beating, physical suffering or other violent acts with the purpose of forcing the victim to commit acts against their will"
Undoubtedly, long forced lack of sleep inflicts physical and mental sufferings because the person is aware of the burden of responsibility (including criminal) for the results of election. And when a person is in such state, it is easy to coerce him or her to do anything, including illegal things, for instance, taking (or not taking) certain decisions regarding the composition of the commission because theyre not in a state to think about the consequences (to think at all).
So what were our legislators thinking of when they adopted this law which flagrantly violates the Ukrainian Constitution, current laws and international legal acts on labour? Who benefits when members of commissions drop from tiredness during the vote count, when mistakes are made as a result of enormous nervous and physical stress, when the commissions have to recount votes again and again? The protocols were signed in an almost unconscious state. Such methods were successfully used in the 1930s by the NKVD during interrogations. After one or two days without sleep the poor victims confessed to anything. Members of the election commissions, exhausted with sleeplessness, also signed empty protocols, examples of which V. Yushchenko demonstrated to the public during the past presidential elections, not realizing that these protocols were the result of legislative activities of the Verkhovna Rada to which he also belonged.
Article 43 of the Constitution of Ukraine guarantees the right for proper, safe and healthy working conditions; Article 45 of our Basic Law envisages shortened working hours at night.
The Labour Code of Ukraine (LCU) “regulates labour relations of all employees”, and labour laws “establish a high level of work conditions and worldwide protection of labour rights” (Article 1 of the LCU). “Ukraine guarantees the equality of labour rights of all citizens” (Article 2-1 of the LCU). “Ukrainian legislation on labour consists of the Labour Code of Ukraine and other legislative acts of Ukraine, adopted in conformity with it” (Article 4 of the LCU).
The question must arise why the laws on the elections flagrantly violate labour law? Why are the conditions of work of members of electoral commissions terrible in terms of the length of the “workday”, to say nothing of other proper, safe and healthy work conditions, which are guaranteed by the Constitution even on election day?
Reasoning from the 40-hour workweek, the duration of a workday (shift) must be, on average, eight hours (based on a five-day work week). Of course, there are some exceptions depending on the conditions of production. A shift may be longer. The duration is established by corresponding labour and related legislation. Yet, “length of break between shifts must not be less than double the duration of the work in the previous shift (including the lunch time). Appointment of an employee to work during two shifts in a row is prohibited” (Article 59 of the LCU). And how many “shifts” in a row did the members of electoral commissions work if the duration of their “workday” was practically equal to the work week?
Labour legislation envisages not only shortened time of work at night, that is from 10 p.m. to 6 a.m. (Article 54 of the LCU), but also prohibits night work for women, who have children under 3 years (Articles 55 and 176 of the LCU), not to mention pregnant women and the disabled (Article 172). If one considers such excessive duration of work of electoral commission as overtime work, the labour laws contains corresponding bans and restrictions (Article 62 of the LCU). In particular, overtime work is used only in exceptional cases (for carrying out work needed to defend the country, prevention of public or natural catastrophes, industrial accidents, etc.). Moreover, “overtime work must not exceed four hours during two days in a row for one worker” (Article 65 of the LCU).
There are a number of prohibitions concerning the overtime work of women, who have children under 3 and disabled, depending on medical recommendations (Articles 63 and 172 of the LCU). However, nobody ever showed any interest as to whether the women working in electoral commissions had children or disabilities.
Article 66 of the LCU guarantees workers a break for rest and eating of no more than two hours. This break is not included in working time and must be provided, as a rule, four hours after the beginning of work. Yet, in out case the unbroken voting proceeded to the unbroken vote counting session. There may have been food on the hop, but no rest!
Moreover the work at night was not paid at all, which violated the demands of Article 108 of the LCU. Besides, until the very day of payment nobody knew for sure what they would get, since the amount changed several times (violation of Article 110 of the LCU).
According to the LCU, an owner or an agency authorized by the latter must strictly obey the legislation on labour and rules on labour protection, take measures to facilitate and enhance working conditions (Articles 141 and 158 of the LCU).
What did the members of such commissions have after an almost 40-hour “workday”? Nothing, except nervous disorder, exacerbation of chronic diseases and stress.
Of course, voting day can be compared to a public or natural catastrophe by the size of budget expenditures, but it does not mean that there is any pressing need to create such inhumane conditions of work of electoral commissions. It would not be too hard to divide the “unbroken” into two working days. At 10 p.m., after the end of voting and cancellation of the unused ballot papers, it should be advisable to seal the documentation of district electoral commission and the ballot-boxes and to leave all this under the protection of the police who guarded the papers before the beginning of voting. Of course, observers from political parties/blocs can remain on night watch (they, unlike members of commissions, can take turns). On the next day, at about 10 a.m., members of the commission could start counting votes. Thanks to the rest, this process will be much faster, the number of mistakes will be less too, and everything will be completed at the same time as after the night “shift”.
It seems that the laws on elections in our country have been adopted by people inclined to sado-masochism. Naturally, it is not so, at least I want to believe that the proportion of such people in the Verkhovna Rada is less than 100%. However, such an “approach” to the election process (especially to the vote count) is needed by somebody. Maybe it is time to think about civilized methods?
Penal settlements and the elections
During the elections in March 2006 the Ukrainian section of the International Society for Human Rights, with financial support from the Canadian-Ukrainian Foundation “Democratic Institutions and Practice” carried out monitoring of the elections at special polling stations in places where people are held in custody. A seminar was held recently in Kyiv where the question was discussed whether convicted prisoners have the right to vote. On the one hand how can one talk of a free vote in conditions of deprivation of liberty? On the other hand do people who have committed a crime against the state and society have the right to take part in governing the state, albeit indirectly, through their representatives?
The discussion was not concluded, but then only the only legislators can put an end to it. Yet, let us dwell on some aspects of this problem.
Basic international standards on elections involve, first of all, the interrelated rights to elect and to stand for office – Article 38 of the Constitution of Ukraine, Article 21 of the Universal Declaration of Human Rights and Article 25 of the UN Covenant on Civil and Political Rights. Yet those in penal institutions do not have the right to stand for office, although this is not mentioned in court verdicts: such kind of punishment is not directly articulated either in the Criminal Code or the Constitution of Ukraine. Those in penal institutions or remanded in custody took part in the elections of State Deputies, but not in the local elections, although nobody deprived them of this right (the law states only reads lists are not compiled and special polling stations are not created).
Since a person is deprived of liberty the question of direct participation in state affairs is seemingly clear. But what about via freely elected representatives? A criminal who has murdered somebody or committed another crime against society and the state effectively participates in the governing of the state and influences the society through his or her representatives. This contradicts both moral and legal principles!
Given the conditions of life in penal institutions prisoners have no opportunity to take part in political activities at all. How could you have, say, party organizations in a colony?
UN standards stipulate that electoral rights must be exercised in conditions of freedom of speech, freedom of information, assembly, association and movement, these being rights which prisoners are deprived of to a large extent or completely. One can speak of free elections only when the absence of any forms of intimidation or pressure on voters can be guaranteed.
The impossibility of free elections in penal establishments was confirmed by the results of recent and previous elections: regardless of regional political sympathies, penal institutions voted for specific candidates (or parties/blocs) throughout the entire country. Elections in penal institutions are strictly controlled. Yet, participation of people in the political life must be free!
In many countries convicted criminals are deprived of the right to take part in elections which is quite logical. We have no such legal norm but the very conditions in our penal establishments contradict the principle of free elections. Really free elections, not controlled by the penal administration, are not possible there. Prisoners themselves generally dont think they need this right since all elections are a form of flagrant pressure on them to achieve this or that outcome of their “expression of will” at the special polling stations. For prisoners it is much more important that their conditions at least remotely meet international standards.
Elections as a form of participation in the political life of the country given the present penal system in Ukraine are a complete mockery and an example of how easily and cynically human dignity and rights can be trampled.
Against torture and ill-treatment
Radio Svoboda: Observance of human rights in Ukrainian penal institutions
We have been hearing about the conflict unfolding in a Lviv penal settlement. The Head of the Lviv regional administration, Petro Oliynyk, has suggested that the head of the Department on Penal Issues in the region, Vasyl Ilnytsky, should be dismissed. This is all as a result of the protest actions by prisoners on Saturday when more than 30 inmates cut veins open in protest at alleged cruel treatment. And a little earlier the same thing happened in Kharkiv.
Why is this happening specifically now? Has the attitude to prisoners really become so much worse recently? Or has a kind of critical mass of violations been reached which has led to such an explosive reaction?
Arkady Bushchenko: I dont think that the situation has got worse recently. I would say that the situation is the same as it was before. Its just that the attention of society to these events has become more critical and therefore we hear of the incidents.
As for why the events happened, one can only guess. I have a certain theory with regard to the reasons for these events. In April there were several reports about various penal settlements suggesting that in all regions of Ukraine some kinds of special units, carrying out certain actions, had been brought in.
The Department claims that these were planned searches before the holidays in order to avert certain disturbances in the prisons.
However its very strange that these sub-divisions, according to information weve received, were in masks, and had special equipment. They allegedly resorted to certain actions which could be interpreted as cruel treatment, i.e. beatings, exhausting exercises and so forth.
Thats one of the versions.
Volodymyr Boiko: I would like here to add that when we speak of penal institutions, we mean only those settlements, etc, where people are serving sentences following a judges ruling which has entered into force.
Yet the point is that the system of imprisonment in Ukraine is three-tiered. In specifically those settlements, the conditions are the best. We have a strange system. The worse conditions, really appalling, are in temporary detention units where they hold people who havent even been charged with anything. Theyve just been detained as a rule. My estimate would be that 70-75% of detentions occur with absolutely no grounds and in contravention of the law, and of the requirements of Article 106 of the Criminal Procedure Code. There the conditions are the most terrible. Theyre better already in pre-trial detention centres (SIZO).
It is considered that detention for more than three days in a temporary detention unit (TDU) is already torture. There have been examples when the courts awarded compensation to individuals who had been held for longer than the legally established period (for example, the well-known Donetsk lawyer, Salov because such conditions are in general deemed to be inhuman. Our own Ukrainian laws take this view.
In pre-trial detention centres theyre a bit better because its possible to live there. And indeed people live there for years. How is it possible to live? With 60 people in one cell … I dont know if you could call such life normal, but they live there. And its precisely in the penal settlements that you have better conditions.
Therefore, when we say that people are cutting their veins open and injuring themselves in protest in penal settlements, we should consider what is actually going on in pre-trial detention centres.
Quite another matter that what happens within the walls of pre-trial detention centres and TDU simply doesnt reach us, does not get out, since they have a very strict system of isolation. Whereas there is some kind of contact between prisoners in penal settlements and the outside world, and therefore from time to time we discover these things.
From what we learn, if one compares the present situation in this area with that a few years ago, say, under the previous regime, are there any changes for the better? These latest events would seem to suggest the contrary?
Volodymyr Boiko: Changes for the worse are simply not possible since it seems like the system has reached the state where worse would be only if they begin shooting people in their cells.
Are there changes for the better? There simply cant be since the system itself has remained unchanged. And the essential feature of our law enforcement system is that the Prosecutor, police bodies, the SSU and the tax police work solely for themselves.
Arkady Bushchenko: We can only make guesses as to what takes place in penal institutions since at the present time this remains the most closed part of society and state organization. Even the police these days show more openness than penal institutions.
Yet I dont see the conditions for this since the police could have certain reasons for keeping certain aspects secret. When a person is serving his or her sentence already, there can be no such reasons. Yet the Penal Department resists any attempts to open these institutions up to public control. And we, therefore, can only make surmises as to whether in fact its better or worse.
We tried to invite somebody from the State Department on Penal Issues to join our discussion today, however despite enormous effort we were unable to find any official to agree. We were told that nobody in the Ministry of Justice is allowed to give interviews without the personal permission of the Minister, Serhiy Holovaty.
I would also like to draw attention to another worrying aspect, noted by journalists, in the story with the Lviv protesters. This was the attempt by the administration at first to conceal information about these protests from the public and, secondly, to not allow journalists to talk with the prisoners.
Mr Boiko, is this a certain trend? How much can one speak of the willingness of officials working in this area to cooperate in any way with the public, in particular with journalists and human rights activists?
Volodymyr Boiko: First of all one needs to understand that the penal system is a huge business which involves incredible amounts of money. This is connected not only with the commercial activities of these penal institutions, and there is a certain amount of commercial activity there – they produce certain things, have workshops. Its also connected, however, with the entire contact with the outside world – parcels, drugs which freely “travel” through penal settlements – all that is done with the knowledge of the administrations of those institutions and done for a certain amount of money. This is huge illegal business.
There can therefore be no real talk of cooperation or of openness since the whole “corrective” system is corrective on paper. In fact it is aimed at meeting the material demands of those people who control it, beginning from the corporals who get their 50 or 100 UH for passing on “malyava” [a note] or drugs, for organizing or not noticing infringements of internal discipline, and ending with the people at the real top who earn big money. I suspect the figures come to tens of millions.
Mr Bushchenko, what do civic organizations do to in some way bring this situation to light? What are they managing to achieve?
Ardady Bushchenko. We try to work with the State Department, with the head of the Department. We have on several occasions suggested that human rights organizations be allowed to visit the prisons. However the Department is only prepared to cooperate with those public organizations which can provide food, financial help, or hold such kind of cultural events. Theyre not willing to open up the prisons so that their actions can be monitored, their behaviour, so that the treatment of prisoners can be checked. That they dont agree to.
Unfortunately thus far we have not had much success. The Department is at the stage of its development that the police were at in 2001.
With the Department all then is clear, but do civic organizations not have any levers of influence on the situation?
Ardady Bushchenko: We very much hope we will. I can say that there is some hope that the so called optional Protection to the UN Convention against Torture will be signed. This would allow for the creation of national prevention mechanisms, these being mechanisms created by the public which envisage visits by members of the public to certain institutions in order to monitor them. It would be aimed at doing what the European Committee against Torture does now. There is hope.
I would like to ask for a conclusion or some kind of look to the future as to possible steps which could nonetheless improve the situation in this sphere; how realistic they are, and what Ukrainian society needs to do in the first instance.
Volodymyr Boiko: The problem is that Ukraine is not yet a law-based state. One cannot review in isolation the situation in penal institutions without everything else happening in the state.
If there is no prosecutor, no decent court system, if there is no real overseeing system, and no real liability of those in control, then we understand ourselves that there can be no progress in the observance of human rights in these institutions. Thats the situation.
Until such time as the people who are obliged to observe human rights in those institutions start being punished
Ardady Bushchenko: I also take this view. I believe that the only cure for this system would be public control, the broadest possible public control because, going by the experience of human rights organizations I can say that none of the information about the state of affairs in penal settlements has reached us or any of our partners through legal channels, i.e. its all via these “malyava” [notes], and other informal means of passing on information. No other information gets out. They are kept in very strict conditions.
While such institutions remain closed we will not know what is going on there and we will suspect the worst.
Is there any chance in society of changing this in the near future?
Ardady Bushchenko: I hope so. Ive already mentioned the optional protocol. That would be a very powerful instrument of public control.
I hope that civic society will also be ready to create certain bodies for such control.
“Vechirnya Svoboda” [“Evening Liberty”] was brought to you by Kyrylo Bulkin, and his guests were Ardady Bushchenko, legal expert for the Kharkiv Human Rights Protection Group and the journalist, Volodymyr Boiko.
 In 2005 Salov won his case in the European Court of Human Rights. The case can be found at: www.echr.coe.int
Prisoner protest actions in Ukraine against cruel treatment from penal administrations
In the evening of 8 May at the Kharkiv pre-trial detention centre [SIZO] a group of inmates – 21 people, all from one cell, in protest at the actions of the administration of the SIZO inflicted injuries upon themselves by slashing their forearms and veins with razorblades extracted from safety razors. On 13 May several dozen convicted prisoners (according to some information – around 35 men, to others – 24) serving their sentences in the Lviv penal settlement No. 30 with medium level of security (the former strict regime) did the same thing. Neither the exact reasons for the mens actions, nor the extent of their injuries are know. According to the administration of the Kharkiv pre-trial detention centre medical help was not even required, whereas a source in strict confidentiality stated that 12 of the 21 men were still on 10 May in the centres medical unit.
At first, both in Kharkiv and in Lviv, representatives of the State Department on Penal Issues tried to cover up the events. Later, when forced to acknowledge that the incidents had taken place, they attempted to play down the number of people involved and gave, in our opinion, extremely unconvincing, explanations for what had happened. They explained the actions of the men remanded in custody in Kharkiv as their reaction to a tighter regime over the public holidays and to the confiscation of items not allowed to be kept. The Prosecutor of the Kharkiv region, Vasyl Senchuk, stated that his office has already established numerous infringements by the administration of the pre-trial detention centre, and that an investigation is underway. In Lviv the Deputy Prosecutor of the region, Volodymyr Hural, said that the prisoners had been protesting out of solidarity with the Kharkiv inmates, and also against the ban on smoking in the corridors and compulsory physical exercises. Hural added that none of the prisoners would be punished.
At the same time we received information from several confidential sources that both in Kharkiv and in Lviv the inmates had carried out their action in protest against cruel treatment during searches, when the prisoners were beaten and their food supplies destroyed. The prisoners of penal settlement No. 30 are demanding that representatives of public organizations and journalists be allowed to see them, while the administration is not allowing this. As our sources informed us, in Kharkiv three of the organizers of the protest have been thrown into punishment cells, while in Lviv an instruction has been issued on transferring those who took part in the action to other institutions, on launching criminal cases against them, with an increase in their sentence by a court ruling. We have so far been unable to confirm these reports.
According to unconfirmed information, in the penal settlements No. 53 (strict regime) in the city of Mykolaiv, No. 85 (strict regime) in the town of Buch in the Kyiv region, No. 47 (special regime) in the town of Sokal in the Lviv region mass beatings of inmates took place, carried out during special searches by special enforcement units.
We are concerned that the mass attempts at self-injury (according to some sources – suicide attempts) will not be effectively investigated. We also fear that the prisoners who resorted to such an extreme form of protest in order to attract attention to their position, will be subjected to serious punishment.
Medical certificates as per a joint Ministry Order make nonsense of medical confidentiality
An administrative claim has been lodged with the Pechersky District Court in Kyiv by Svitlana Poberezhets. She is demanding the cancellation of the joint Order, registered with the Ministry of Justice, of the Ministry of Health, M органу судової влади повинно розгладитися як невідємна частина “процесу” в розумінні ст. 6 Конвенції. (Immobiliare Saffi c. Italie, 22774/93, 28.07.1999, п. 63; рішення “Горнсбі проти Греції” від 19.03.1997, Збірник постанов та рішень 1997-ІІ, С. 510, п. 40)
Суд вважає, що, без сумніву, процедура виконання рішення суду м. Кіровограда від 29.11.1999 року є складовою частиною спору між заявником та військовою частиною А-0425. Він констатує, що п. 1 ст. 6 Конвенції застосовується до вищезгаданої процедури.
В. Щодо невиконання рішення суду м. Кіровограда від 29.11.1999 року
У своїх зауваженнях Держава-відповідач наполягає, що заявник не може претендувати на статус жертви щодо порушення п. 1 ст. 6 Конвенції та ст. 1 Протоколу 1, враховуючи те, що рішення суду м. Кіровограда від 29.11.1999 року було повністю виконане.
Зі свого боку, заявник наголошує, що він не мав змоги отримати повну суму компенсації, яка була йому призначена відповідно до рішення суду м. Кіровограда від 29.11.1999 року і перерахована на його банківський рахунок, оскільки з суми компенсації були утримані банківські витрати у сумі 50,34 грн.
Відповідно до прецедентної практики Суд нагадує, що заявник, який отримує на внутрішньому рівні відшкодування шкоди за заявлене порушення Конвенції, більше не може вважатися “жертвою” порушення прав, передбачених Конвенцією, з боку однієї із договірних сторін. (рішення “Єкле проти Німеччини” від 15.07.1982 року, серія А № 51, стор. 30, 66).
У цьому випадку Суд зауважує, що сума, заборгована заявнику відповідно до рішення суду м. Кіровограда від 29.11.1999 року, була йому виплачена в два етапи. А саме, сума у 920 грн., яка становить компенсацію за продовольчий пайок, була виплачена готівкою військовою частиною А-0425. Сума 1 677,92 грн., яка становить компенсацію за речове майно, була виплачена Державною виконавчою службою на банківський рахунок заявника.
У звязку з цим Суд вважає, що в розумінні ст. 34 Конвенції заявник не може вважатися “жертвою” порушення прав щодо виконання рішення суду, оскільки воно було виконане під час подачі заяви до Суду. У цьому сенсі Суд вважає, що ця частина скарги є необґрунтованою в сенсі п. 3 ст. 35 Конвенції та має бути відхилена відповідно до п. 4 ст. 35
С. Щодо відповідності закону процедури виконання рішення суду м. Кіровограда від 29.11.1999 року
Уряд вважає, що заявник не використав всі національні засоби правового захисту. А саме, він міг би оскаржити в судовому порядку відповідно до закону, процедуру виконання рішення суду м. Кіровограда від 29.11.1999 року, звернувшись до суду зі скаргою на дії представників Державної виконавчої служби.
Заявник, в свою чергу, стверджує, що рішення Державної виконавчої служби про виплату йому грошової компенсації за речове майно відповідно до рішення суду м. Кіровограда від 29.11.1999 року шляхом переведення грошей на його банківський рахунок було прийняте без його згоди та має свавільний характер, що призвело до неможливості отримати стовідсоткову суму належної йому компенсації. Сума 50,34 грн. була утримана банком як банківські витрати. Він вважає, що у таких випадках звернення до суду зі скаргою на дії державних виконавців загалом є неефективним.
Суд нагадує свою прецедентну практику, що положення п. 1 ст. 35 Конвенції щодо використання національних (внутрішніх) засобів правового захисту зобовязує осіб, які бажають звернутися до судового або арбітражного міжнародного органу з позовом проти Держави, використати перед цим засоби, які надаються правовою системою вищезгаданої Держави (“Ілхан проти Туреччини”, |GC| № 22277.93, 58, 27.06.2000).
Отже Суд зауважує, що заявник звернувся до Кіровського районного суду м. Кіровограда (суд першої інстанції) зі скаргою на дії державного виконавця стосовно невідповідності закону процедури виконання рішення суду м. Кіровограда від 29.11.1999 року і що ця скарга була відхилена з огляду на необґрунтованість. Але заявник не оскаржив ні в апеляційному, ні в касаційному порядку рішення Кіровського районного суду м. Кіровограда.
Суд констатує, що заявник не використав всі національні засоби правового захисту в розумінні п. 1 ст. 35 Конвенції, тобто ця частина скарги має бути відхилена відповідно до п. 4 ст. 35
3. Посилаючись на ст. 13 Конвенції, заявник скаржиться, що він не має жодного “ефективного засобу” в українському законодавстві, який дозволив би йому виправити порушення свого права щодо невиконання рішення суду м. Кіровограда від 29.11.1999 року.
Стаття 13 Конвенції передбачає таке:
“Кожен, чиї права і свободи, викладені в цій Конвенції, порушуються, має право на ефективний засіб правового захисту у відповідному національному органі, навіть якщо таке порушення було вчинене особами, що діяли як офіційні особи.”
Уряд вважає, що беручи до уваги те, що п. 1 ст. 6 Конвенції не повинен застосовуватись в цьому випадinistry of Employment and Social Policy and Social Security Fund for temporary inability to work and Social Security Fund in the case of industrial accidents and work-related illness. She is represented by a representative, himself the coordinator, of the Vinnytsa Human Rights Group, Dmytro Groisman, and the well-known Ukrainian lawyer Viacheslav Yakubenko.
The claimant considers that the Order which establishes the form for temporarily inability to work, a doctors certificate, in making it compulsory to write down on the document issued according to ones place of work, information about the patients diagnosis and the course of illness according to the International classification of diseases (ICD) violates the patients right to privacy. She also believes that the inclusion in the doctors certificate about the patients diagnosis poses a threat of violation of medical confidentiality.
The Instruction on filling in the form on temporary inability to work in question, registered by the Ministry of Justice as No. 1456/10055 from 17/11/2004, states “a medical certificate (hereafter MC) is a multifunctional document providing grounds for being released from work due to illness and with material provision for the insured individual in the event of temporary illness, pregnancy and childbirth”. The law thus officially stipulates that the MC be provided at ones place of work to confirm the grounds for not attending work and to ensure payment. It is therefore clear that the MC is not only a document containing private confidential information on a persons state of health, but a document used both in the sphere of civil-legal relations (as grounds for an employer to give somebody sick leave), and in the sphere of public-legal relations (as grounds for receiving due payments from specialized social security funds) in the event of temporary illness, pregnancy and childbirth This is also confirmed by the relevant columns on the back of the MC, since it is envisaged that some parts of the form are filled in after being submitted to the place of work by “a timekeeper or other authorized person”, “personnel department or other authorized person”, “social security commission or other person authorized to allocate assistance”., “the accountant (accounts section) of a business, institution, organization”. There is also place on the back for the signatures of the manager of the employer and the Chief (Senior) Accountant. These people will also obviously familiarize themselves with all entries on the MC, including information about the initial and final diagnosis.
The claim touches on the problems of hundreds of thousands of Ukrainian citizens who, the claimant believes, in contravention of the Constitution and Laws of Ukraine (the Civil Code, the basic laws on healthcare, the European Convention for the Protection of Human Rights and Fundamental Freedoms) are forced to provide their employers with information about their illnesses. In the claimants opinion, the practice of providing information about the employees diagnosis violates the latters right to inviolability of his or her personal life, and is an unacceptable intrusion into an individuals privacy, and should therefore be stopped. Every year tens of thousands of Ukrainians experience illegal discrimination at the workplace as a result of the disclosure of information about their state of health on medical certificates.
The claimant asserts that the Order on medical certificates is in violation of Articles 3, 19, 21, 22, 32, 55, 64 and 68 of the Constitution of Ukraine and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 4, 6, 7, 8, 14, 40, 41 of basic laws on healthcare, Articles 285 and 286 of the Civil Code and Article 23 of the Law of Ukraine “On information”.
On 16 February 2006 V.V. Malinin. Judge of the Pechersky District Court in Kyiv began proceedings on the suit brought by S.Y. Poberezhets against the Ministry of Health, Ministry of Employment and Social Policy and Social Security Fund for temporary inability to work and Social Security Fund in the case of industrial accidents and work-related illness.
After preliminary consideration of this case, the Pechersky District Court ordered the defendants, on the basis of Article 171 of the Code of Administrative Justice, to publish in official editions an announcement about the consideration of this administrative case. This order has not yet been carried out.
Legal aid in this case has been provided by the Ukrainian Helsinki Human Rights Union within the framework of the Foundation for legal aid to victims of human rights violations which is financed by the International Renaissance Foundation.
Consideration of this case has been postponed till the end of May this year.
Ukrainian Helsinki Human Rights Union
Vinnytsa Human Rights Group
“Prava ludyny” commentary. In our opinion, this case should attract public attention since the problem concerns everybody: both patients and doctors. This Instruction on filling out medical certificates has retained all the shortcomings whichку, стаття 13, гарантії якої виходять з п. 1 ст. 6, також не застосовується в цьому випадку.
Уряд зазначає, що у будь-якому випадку заявник має ефективний засіб у національній судовій системі, який дозволяє йому виправити заявлене порушення його права щодо відсутності виконання рішення, винесеного на його користь. А саме, заявник мав можливість оскаржити в судовому порядку дію (бездіяльність) державного виконавця щодо виконання рішення суду.
Заявник наполягає на тому, що в українському праві можливість оскарження дій Державної виконавчої служби на практиці є неефективною.
Суд нагадує свою прецедентну практику, що стаття 13 вимагає наявність внутрішнього правового засобу для захищених позовом скарг згідно з Конвенцією (див, наприклад, рішення “Какісі проти Туреччини” |GC| № 23657/94, 112, CEDH 1999-IV).
Отже, Суд відхилив кожну зі скарг заявника як з огляду на необґрунтованість, так і через невикористання всіх національних засобів правового захисту. Виходячи з цього, скарга заявника на підставі статті 13 Конвенції є необґрунтованою у розумінні п. 3 ст. 35 Конвенції і повинна бути відхилена із застосуванням п. 4 ст. 35.
Виходячи з цього, Суд одноголосно
визнає скаргу неприйнятною.
Ж.-П. Коста, голова
Т.Л. Ерлі, заступник секретаря
Is it correct to include passport data on railway tickets?
On 28 April the third meeting of the Public Council for the Observance of Human Rights (hereafter the Council) took place. The only question where the opinions of almost all members of the public on the Council and representatives of the Ministry of Internal Affairs fundamentally diverged concerned whether railway tickets should not only carry the last name, but also the first name and patronymic and passport data of passengers.
This information was provided on 12 April at a briefing by Viktor Bondar, the Minister of Transport and Communications. He stated that his ministry had consistently rejected this since they considered it an unfounded restriction of human rights. He mentioned also that the Ministry of Internal Affairs asks for access to databases of sales of railway tickets.
Members of the Council learned about this idea from the Internet, and submitted this question for discussion at the meeting on 28 April. The Minister of Internal Affairs and his deputies argued that such measures were needed to protect the victims of crimes and said that the use of this database noticeably improved the success rate in looking for criminals. The members of the public on the Council disagreed arguing that the initiative would:
a) impede the exercising of citizens constitutional right to freedom of movement and to respect for private and family life;
b) give excessive power to law enforcement bodies connected with control over movement of individuals within the state and collection of information about a person;
c) create conditions, when stateless individuals and other vulnerable social groups will be deprived of the right to free movement;
d) complicate the issuing of travel documents on trains which will inevitably result in much longer time needed to buy tickets.
This assessment of the initiative of the Ministry of Internal Affairs was approved by all present members of the public on the Council (two members abstained from voting). The members of the Council also asked the top officials of the MIA to discuss such controversial plans with the Council in advance and only then introduce them.
It is interesting that the Ministry of Transport and Communications, according to Mr. Bondar, plans in future to reconsider the existing system whereby the last name and initials are included on railway tickets: it is not improbable that such practice will be cancelled.
It should be noted that this issue is a specific case of a broader question, namely which powers should be held by investigative operations units of law enforcement bodies and other enforcement institutions as far as gathering information about individuals is concerned. There are, for example, plans to introduce the tax numbers into the passport system in Ukraine, as was envisaged by the concept of a Single State Automated Passport System. There are no legal grounds for this at present, however this system has already been created unofficially and its introduction is planned. In October 2005 the MIA submitted to the Cabinet of Ministers of Ukraine a packet of documents “to make a card for citizens of Ukraine in the form of a plastic card with an inserted electronic chip which will be strictly protected. The chip will hold the number of the card which will be the single card used both in the Tax and in the Pension Funds. The chip will contain all necessary information about a person, and in addition it will be possible to add information about whether a person has a drivers licence.”
Imagine if all departments begin collecting information about the holder of a tax number. This means that it will be possible to include in the database created for tax numbers of the State Tax Inspection all other data about an individual which is collected, as well as information about his or her family, about bank deposits and accounts, tax status, property, for example, immovable property and vehicles, credit history, criminal records or other forms of criminal, administrative or disciplinary liability, movement around the country (if passport data ends up on railway tickets) and beyond Ukraine, etc. It half a minute it will be possible to obtain a full run-down on a person..
A state in which such methods for collecting personal data are used is called a police state in the whole world. However, such a system is being planned in Ukraine.
I consider that analysts from the MIA have not given this issue sufficient attention. If they had, they would be aware that law enforcement bodies in all countries hoped that such measures would help to fight crime, yet practice showed that such methods of identification were not effective, and the results did not improve noticeably. At the same time, the losses inflicted by the weight of police surveillance over the entire population are irreparable. The communities of many countries, therefore, unanimously protested against the introduction of a single personal code (in the USA and Western Europe this happened in the 1970s), and managed to prevent the use of such methods in their states. In the USA, for example, 15 types of identification codes exist, and the law prohibits different bodies from sharing the collected information without the consent of the individual involved. Among post-communist countries such a ban was imposed in Hungary: in 1991 the Constitutional Court of this country acknowledged that the introduction of a single many-purpose code violated the right to privacy and prohibited its being demanded, for instance, when opening a bank account (this is practiced in Ukraine at present).
We thus have the eternal Ukrainian question: where are we heading? To civilized Western countries, where such practice is regarded as a violation of human rights, or to the East, where the convenience of state officials has more weight than human rights?
Access to information
On the secretiveness of state bodies yet again…
Everybody knows about the secretiveness of state bodies. Try to write a request to a state body and in most cases you will receive a quite civil response that such information cannot be provided for this or that reason. At best the officials will answer your request, but so that you cant understand a thing. However, there is another possibility: despite the rules of the Law of Ukraine “On information” on having to respond within a fixed period, you will not get an answer at all.
The following concerns a case when the Secretariat of the Human Rights Ombudsperson (hereafter the Ombudsperson) refused to grant access to the Provision on the Secretariat and on Representatives of the Ombudsperson, describing the given document as an internal departmental document, and therefore not available.
The High Administrative Court of Ukraine (HACU) considered the cassation appeal of Ms. K against the Ruling of the Appeal Court in Kyiv from 23 June 2003 on the administrative case based on a suit filed by Ms K. against the Secretariat of the Ombudsperson calling for their actions to be declared unlawful and seeking moral damages.
The HACU established that in February 2003 Ms K. filed the suit claiming that despite the requirements of the Laws of Ukraine “On information”, “On the Human Rights Ombudsperson”, the respondent had not since January 2002 provided her with the possibility to see the Provision on the Secretariat and on Representatives of the Ombudsperson In demanding that her right to information be restored, the claimant demanded 925 UH in moral damages.
On 17 April 2003 the Pechersky District Court in Kyiv partially satisfied the claim. The actions were declared unlawful and the Secretariat of the Ombudsperson ordered to allow the claimant access to the requested information. The other demands were rejected. On 23 June 2003, the Appeal Court in Kyiv reversed the Ruling of the court of first instance and the case was submitted for new consideration
In her cassation appeal, Ms K. referred to infringements by the Appeal Court of both material and procedural law, and called for its decision to be reversed and the original ruling of the court of first instance to be upheld. A representative of the Ombudspersons Secretariat rejected the grounds presented.
The cassation appeal needs to be allowed on the following grounds. According to Article 202 of the Civil Procedure Code of the UkrSSR of 1963, in force when the court ruling was passed, such rulings must be legal and well-founded. In compliance with Points 2, 3 of Article 202 and Points 6, 7 of Article 203 of the given Civil Procedure Code, a court must establish and point in its ruling to the facts and corresponding legal relationships, to any violation of the claimants rights and to choose how to protect these rights in the case of their violation.
According to the rules in Article 305 § 2 of the CPC of the UkrSSR, in appeal proceedings the court has the right to overturn the ruling of the court of first instance and to direct the case for new consideration, if a violation of procedural law is established which hinders the appeal court from investigating new evidence or circumstances not considered by the court of first instance.
The court of first instance established, and the appeal court agreed with this, that in January 2002 Ms K. had sent the ombudsperson a request to see official document of the latter, including the Provision on the Secretariat and on Representatives of the Ombudsperson. The claimant received a letter dated 29 January 2002 and signed by the head of the department in charge of requests from the public of the Secretariat refusing to provide the information. The grounds given were that the requested documents were internal and connected with developing the directions of the agencys activities, and could therefore not be made public on the basis of the demands of Article 37 of the Law of Ukraine “On information”.
The court of first instance had concluded that the claimants right to the information had been violated through this refusal, whereas the sense of the appeal courts decision suggests that such a conclusion was made on the basis of insufficiently clarified circumstances and was premature.
The HACU ruled that the conclusions of the court of first instance had been legitimate and well-founded, while those of the appeal court were not in compliance with current material and procedural law.
The constitutional right of everybody to freely collect, store, use and disseminate information set down in Article 34 § 2 and 3 of the Constitution of Ukraine may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.
The basic law regulating the legal grounds for activities involving information is the Law of Ukraine “On information”, according to Article 9 § 1 of which all citizens of Ukraine, legal entities and state bodies have the right to information. This right implies the opportunity to freely collect, store, use and disseminate information needed to exercise their rights, freedoms and legal interests and carry out tasks and functions. Article 10 of the Law reads that the right to information is provided, in particular, by the obligation of state bodies to inform about their activities and decisions.
According to Article 21 § 1 of the Law, official information created in the process of current activities of legislative, executive and judicial power, bodies of local and regional self-government constitutes information of state bodies and bodies of local and regional self-government, and the refusal to provide such information in response to request for information made in keeping with the rules of Article 32 of the Law, is possible only in cases established by Article 37 of this Law, in particular, if these documents represent internal departmental correspondence (staff reports, correspondence between departments, etc.), if they are connected with developing the directions of activities of the agency, the process of decision-making and precede such decisions.
The Law of Ukraine “On the Human Rights Ombudsperson” (Article 4) states that the ombudsperson is an official figure whose status is stipulated by the Constitution of Ukraine, this Law and the Law of Ukraine “On the civil service”.
In compliance with Article 10 of the Law, a Secretariat is created to provide for the activities of the Ombudsperson, with the work of this body being regulated by the Provision on the Secretariat of the Ombudsperson. According to Article 11 of the Law, the Ombudsperson has the right to appoint his/her representatives whose activities and authorities are regulated by the Provision on representatives of the Ombudsperson of Ukraine, approved by the latter.
This means that the Provision on the Secretariat and on Representatives of the Ombudsperson does not constitute information regarding which restrictions are established by Article 37 of the Law of Ukraine “On information”.
The conclusion of the appeal court that the Provisions thus created for the Ombudsperson are his or her possession and may not be provided for reading in response to a request for information runs counter to the rules of Article 12 of the Law of Ukraine “On the Human Rights Ombudsperson” concerning financing of the Ombudspersons activities from the State Budget of Ukraine and Article 38 of the Law of Ukraine “On information” stating that the information collected at the expense of the State Budget is state property with access determined by the state and not those who prepared it..
Since, according to the rules of Article 62 of the 1963 CPC in force at the time of the ruling, the court evaluates the evidence on the basis of its inner conviction based on a thorough, complete and impartial consideration at a court sitting of all the circumstances of the case as a whole, being guided by the law, and no evidence is accepted a priori, the court of first instance validly rejected the conclusion of the Koretsky Institute of State and Law which classified the Provision on the Secretariat and on Representatives of the Ombudsperson as internal departmental information as not complying with the law, while the appeal court had erroneously cited this conclusion as one of reasons for reversing the courts ruling.
The conclusion of the appeal court that the Ombudsperson cannot be considered an organ of state power, given as one reason for reversing the ruling, runs counter to Article 101 of the Constitution of Ukraine and Article 4 of the Law of Ukraine “On the Human Rights Ombudsperson”, according to which the Ombudsperson is an independent individual state organ being guided in its activities by legislation, including the Law of Ukraine “On information”.
Under such conditions the appeal court had no legal grounds for reserving the ruling of the court of first instance.
In accordance with the rules of Article 226 of the Code of Administrative Justice of Ukraine, the cassation court can reserve the decision of a court of appeal and recognize as valid the ruling of the court of first instance, taken in compliance with law and reversed by mistake.
The High Administrative Court of Ukraine therefore allowed the appeal from Ms K., reversed the decision of the Appeal court in Kyiv of 23 June 2003 and upheld the decision of the Pechersky District Court in Kyiv.
Ukraines Ministry of Justice considers the deportation of Uzbek nationals illegal
The Ministry of Justice of Ukraine
Ukraine, 01001, Kyiv, Horodetsky Street, 13
Tel / Fax: (38-044) 278-37-23
03.05.2006 No ……
[Address of the recipient]
The Ministry of Justice has considered your letter from 21 March 2006 regarding the detention, holding in custody and deportation of citizens of Uzbekistan, and would inform you of the following.
Ukraine has, since 2002, been a signatory to the UN Convention relating to the Status of Refugees of 1951 and the Protocol to the Convention from 1967. The legal status of refugees in Ukraine, the procedure for granting, losing or depriving them of this status, as well as state guarantees to protect refugees are set out in the Law of Ukraine “On Refugees” (hereafter “the Law”). In addition, Ukraine is a signatory to the UN Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter “the European Convention”), the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter “the UN Convention against Torture”), which contain an absolute prohibition on torture, this being an imperative norm of international law.
The Department of the Immigration Service in the Autonomous Republic of the Crimea refused to allow the applicants to register documents to resolve the issue of whether they be granted refugee status on the basis of Article 12 § 6 of the Law due to the “obvious lack of grounds” for the applications from citizens of Uzbekistan. They were claiming that there were grounds foreseen in Article 1 § 2 of this Law (“extremely well-founded fear of becoming a victim of persecution on the grounds of race, beliefs, nationality, citizenship, membership of a particular social group or political opinion”). In this respect, the Ministry of Justice considers that the nature of the events of 12 – 13 May 2005 in the city of Adijan (Uzbekistan) which resulted in the death of people through violent measures applied by the military and security service of Uzbekistan is generally recognized. The events were described as a grave violation of human rights by the international community.
In its report from 12 July 2005 the UN High Commissioner for Human Rights stated that “the Uzbekistan military and security forces committed grave violations of human rights, largely the right to life”. In their reports, the UN Special Rapporteur on Torture has on many occasions identified Uzbekistan as a country where systematic torture is applied. The Special Rapporteur has stated that torture is applied on a mass scale to individuals accused of serious crimes against the interests of the state. Concern regarding the observance of human rights in Uzbekistan has also been expressed by the Council of the European Union, the UN High Commissioner for Refugees and other international institutions.
With regard to the assertion that the applicants turned down their right to appeal the decision of the body of the Immigration Service, the following should be noted.
In accordance with Article 16 of the Law an individual has the right to make an appeal against a decision by a body of the Immigration Service to register his or her documents to the State Committee for National Minorities and Immigration within seven days of receiving the relevant notification, as well as to the courts.
The individuals in question were not provided with legal aid, that is, they did not have the possibility to receive the qualified assistance of a lawyer, nor were representatives of the Office of the UN High Commissioner on Refugees or human rights organizations allowed to see them.
According to Article 55 § 2 of the Constitution of Ukraine 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. In accordance with Article 3 of the Civil Procedure Code of Ukraine a rejection of the right to seek defence from the court has no validity.
Article 10 of the Law allows for a person to be refused refugee status if he or she committed a serious crime of a non-political nature beyond Ukraines borders before arriving in Ukraine with the intention of seeking refugee status, as long as such an action is classified by the Criminal Code of Ukraine as a serious crime, A person may also be refused such status if he or she is guilty of actions which run counter to the aim and principles of the United Nations Organization. Such crimes and actions also include terrorism.
However the mere fact of receiving a request for extradition from the bodies of the Prosecutor of Uzbekistan on the grounds that the person is wanted for committing terrorist acts does not constitute sufficient grounds for forcibly deporting a refugee without the appropriate review of the individuals application asserting persecution on political grounds.
Furthermore, Ukraine, in fulfilling its international commitments under the UN Convention against Torture, the European Convention on Human Rights, and in observing the norms of ordinary international law, must adhere also to the principle of non-refoulment expressed in particular in the prohibition on the deportation of refugees or their forced repatriation to the country from which they have arrived and where their life or liberty may be threatened on the grounds of their race, religion, nationality, membership of a particular social group or political opinion (Article 33 of the UN Convention relating to the Status of Refugees, and Article 3 of the Law). Analogous norms are also contained in the UN Convention against Torture, and this principle is enshrined in the case law of the European Court of Human Rights.
Deputy Minister, D. M. Kotlyar
Survey in military unit А 1915
The Chortkiv centre of the bulletin “Prava ludyny”, within the framework of the Campaign against torture and cruel treatment in Ukraine has carried out second anonymous survey in the army. The first attempt to ascertain the attitude of servicemen to the problem of illegal violence was undertaken in 2003 in military aviation unit A 4079. This unit has since been disbanded as part of reduction in the Armed Forces. Abandoned hangars, ruined buildings, kilometres of concrete strips of the Chortkiv military airdrome stand as eloquent testimony to the absurdity of the old militarization. All suddenly became “redundant” to state departments, however continued to provide good plunder for the crafty of all levels and types.
However that is not our subject here. A 1915 is at present not facing reductions or disbanding, at least in as much as one can predict the regimes actions. Informal communication with many servicemen enables us to conclude that army life in this unit is not without problems, but such problems are no more all-encompassing than, for example, in healthcare or education, not to mention law enforcement bodies. The majority of officers therefore value their work and try to fulfil its requirements. The move towards a contracted service system is continuing with more than half the junior staff of Unit A 1915 on contract.
20 special “officer” questionnaires were processed. About half of our respondents confirmed that they had encountered torture and other forms of cruel treatment in the Armed Forces. Approximately the same number had personally experienced cruel treatment during their service and regarded such treatment an important problem in the army. However in their experience most cases of cruel treatment had been discovered and the culprits punished. The following were given as main causes of illegal violence in the Armed Forces: a low level of psychological, intellectual and physical preparation before the army service, “historical tradition” of violence in army, little awareness of justice and legal culture, as well as impunity for acts of violence. The question: “Why, in your opinion, are cases of cruel treatment not disclosed and punished?” generated such answers: “reluctance of the commander who finds out about the offence to try to launch a criminal case because, as a result, he will be punished too”; “army law enforcement bodies do not analyze the essence of the problem, but only establish facts”, “the main principle of their activities is punishment, but not protection of rights of servicemen”, “unwillingness of the victim to “sneak”, and the pathological logic “I am beaten, and I will beat””.
The forms also asked how well servicemen knew the norms of domestic and international law on torture and other forms of cruel treatment. Here the general situation was as follows: the overwhelming majority of officers believed that they knew the norms of the Criminal Code of Ukraine. Yet, as to the international norms, which are now part of domestic law, for example, the norms of the UNO Convention against Torture, the opposite was unfortunately true. Incidentally, it is not difficult to see in the unit that most of the information on the stands containing extracts from normative legal acts concern offences committed by servicemen, but not their rights. Thus, I believe it would be advisable to provide reminders in this material of the basic legal terms of the UNO Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. The term “torture” means “any act, by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed of is suspected of having committed, or intimidating or coercing him or a third person…” The terms “inhuman and degrading treatment” is rather vague in the juridical sense. The European Commission on Human Rights and the European Court of Human Rights give the following definition: “Inhuman treatment or punishment is treatment that intentionally inflicts serious moral or physical suffering and cannot be justified in this situation. Degrading treatment or punishment is treatment that flagrantly humiliates a person in the presence of other people and makes him act against his will or conscience.
We obtained 29 filled questionnaires out of 50 distributed among soldiers. Incidentally, Major S. Cherniak a deputy commander on humanitarian issues told us that anonymous surveys had already been conducted among the soldiers of this unit. A generalized portrait of servicemen from unit A 1915, based on processing the questionnaires, suggests that they are from a rural area or small town, have specialized secondary education, worked before the army and intend to return to work after demobilization. They normally joined the army in order to obtain a profession which will be of use in their future life, and to check their ability to survive under any conditions.
I would like to point out that the most comforting result of the poll was that to the question “Does “didivshchyna” [bullying or worse of conscripts by officers and other senior staff] exist in your unit?” 28 of our respondents answered “No” and only one wrote: “Didivshchyna in our unit takes the form of moral and physical support”. So, in spite of all fragmentariness of information obtained from the questionnaires, one can say that the moral and psychological climate in unit A 1915 is absolutely normal.
The respondents were asked to give a rating from 1 to 5 of the conditions of life and service in the unit. The highest marks were given to “workmates” and “quality of food”, the lowest, mostly “threes” and “fours”, and even “twos” – to living conditions in barracks. The marks for quality of medical care and fairness of commanders spanned the whole range. Soldiers did not complain of any deterioration in health due to army service or of harmful work conditions, such as contact with toxic substances, although in December 2005 there was a case when soldiers did not obtain winter footwear in time, and many of them caught colds. Furthermore, according to the sanitary instructor of the unit P. Hluhovskiy, medical provisions are extremely inadequate. In fact the first aid kit of the medical centre demonstrated that clearly enough without further commentary. Modern methods of treatment of, for instance, respiratory viral illnesses are beyond wildest dreams. To the question “Who would you turn to for help if problems arose during your service?” the majority of soldiers answered “to workmates”, another part – “to commanders”, only several persons – “to parents” or “to older soldiers I know”, with nobody mentioning psychologists or priests. We asked whether staff lists of the unit allowed for the post of practicing psychologist. The answer appeared to be negative in the sense in which psychologists work in the armies of West-European countries, that is as a specialist working on contract.. To a certain extent, the functions of a psychologist are fulfilled by the deputy commander in charge of humanitarian questions. However, when we asked how often soldiers turn to him, Major Cherniak answered frankly: “Not too often”. And the main reason is that psychological distance still exists between him and soldiers, who do not see him as an older colleague, but as a commander.
In going through the questionnaire, it was impossible not to notice the all too frequent mention of the practice of “punishment through work” for any infringements of discipline. Specific examples suggest that this work is, in most cases, not military at all (loading, digging, etc.), and sometimes – clearly useless. Almost every young man, who has returned from the army, confirms the existence of such practice since a soldier is seen first of all as a free and impersonalized workforce. Of course, it is impossible to do without day-to-day chores in the army, but is it possible to master a military specialty during one year of service, if such assignments occupy the lions share of time? How one can talk of a responsible attitude to military duty, if such “work punishments” are regularly imposed in an openly offensive and degrading fashion? How, for example, can one describe “scooping shit from a water closet using a bucket with holes”? By the way, this method of “work therapy” is mentioned in almost half of the questionnaires!
To the question “Who have you been in conflict with during your service?”, the majority mentioned Sergeant-Major F. Then the grievances, complaints about rudeness and unfairness of the ensign, as well as undisguised anger, poured out like from Pandoras box.
I will quote several statements: “the main problem in our unit is Sergeant-Major F.”, “the Sergeant-Major is intolerable”, “the Sergeant-Major doesnt need a reason, he can find fault out of nowhere”, “he insults soldiers with bad language”, “he is unfair”, “if somebody hasnt done something, he punishes soldiers whove got nothing to do with it “, “he and other sergeants deny me my dignity”, “the first days were unbearable because of the Sergeant-Major; now I also think about him badly – he is a strange man”, “he said that he would torment us”, “the master sergeant picks on everyone”, “were sick of the Sergeant-Major!!” and so on.
After doing the survey, participants in the Campaign against torture and cruel treatment in Ukraine had several meetings and talks with colonel V. Maksimchuk, the commander of the unit, and Major S. Cherniak a deputy commander on humanitarian issues. Unfortunately, we could not meet with the Sergeant Major himself. We visited soldiers barracks, rooms for study, mess-room and the medical unit. I can confirm that we found everything clear and in order everywhere, as far as this was possible with old buildings dating back to the times of Emperor Franz Joseph. Commanders pointed out the work in this sphere of the Sergeant Major F. It is obvious that he prioritizes order, and this is, maybe, good. Yet, it would be better to keep order without demonstrative abasement of his subordinates. “The main thing is that he never lifts his hand against soldiers. And he stays with them from morning to evening. So, maybe, soldiers get tired with this care, and he – with their resistance. Besides, some rudeness is always present in a mens collective”. This is the opinion of the commanders. Well, let us suppose that it is true. As well as the opinion that it is impossible to create the atmosphere absolutely without conflicts in the army. After all, conflicts are natural in a dynamic human group, if, of course, they are resolved correctly..
We also heard the opinion that serving in the Ukrainian army is now very easy. Indeed our boys are not sent either against Mojahadin bullets or to liquidate a nuclear disaster. Under such conditions cases of loss of health or death of servicemen are absolutely inadmissible. For example, three years ago Ternopil dweller Taras Kholodynskiy tragically died in unit A 0666. We must be insistent in seeking an answer to why such things happen
One can dispute whether the changes in our society are positive or negative, yet they are clearly taking place. . At the same time, it seems that not everybody in the army and not always have managed adapt to these changes. Our enforcement bodies are still probably living Stalins time. Not only the walls of Austrian barracks live until now, the methods of drilling and subjugation of soldiers, applied in Soviet times, are also too tenacious. One must understand that the methods, which were useful in the Soviet Union, are not efficient now. However, new methods, which will conform to the modern vision of perspectives of development of the army, are not created yet for some reason. I do not pretend to indisputability of my estimations, but I think that the main idea is that a modern and efficient army is an army based on individuals, from a soldier to a general, with conscious attitude to their rights and responsibility. Yet, if a soldier is treated as anonymous cheap labour, who has to carry out unskilled work. anything goes in relation to him:: bad language, threats, public and sophisticated humiliations… Maybe I am not right, but it seems to me that only a bad soldier can be trained by such methods: broken-down, embittered, withdrawn and irresponsible. What would be the value of such soldier in case of real military conflict?
We have already said that the opinion dominates among the officers of unit A 1915 that one of the causes of illegal violence in the army is a low level of preparation of youth to military service. According to this viewpoint, “didivshchyna” among soldiers of the so-called “Vasiunins syndrome”, which is characterized by physical weakness, intellectual and spiritual backwardness. Certainly, there are some grounds for such statements, but I am not sure that they are indisputable. Some servicemen of unit A 1915 even have legal education. The majority of them answered our questions more or less completely, and nobody wrote that he considered himself to be not ready for service because of his physical condition. Almost all boys rated themselves as 5, or at least 4, as soldiers. . It is interesting that to the question “What do you lack in the army?” most soldiers answered “fairness” or “will”, but not “Mammas dinners” and not even “sweetheart”. . So, do the results of the questionnaire demonstrate an infantile attitude to army service? Probably not. They are normal boys, not without trust in people, benevolence and dignity. Maybe, this dignity is not always expressed adequately. This is the fault of our society, which is not too attentive and solicitous. As to the question about own moral preparedness to army service, there a positive answer was given only by 20 servicemen. Why? Most of them chose the answer “army discipline is not a problem for me, but other demands are made of me along army regulations”. So, the question is not made clear, what is the reason of conflicts, illegal violence and humiliation of human dignity in our army: the “syndrome of an underdeveloped soldier”, despotic and unrestrained senior staff or more general and objective factors?
The last item of soldiers questionnaire was the proposition to write a letter of advice to an imaginary son. They wrote the following: “Army service is a good thing, there you improve your health and obtain knowledge, which you will need in civic life. So, in my opinion, everyone must serve and serve honestly”; “I will tell how I served, in order to keep him from disappointment in the first days of service. Service in the Armed Forces of Ukraine is an interesting thing. Here you perceive yourself…”; “Sonny! When your father was going to the army, we hoped to find pleasure in the service, but instead got a heap of problems. However, these problems hurt and helm me find real friends. .I obtained from the army much more than expected”.
We want to thank the boys for their frankness (and I am almost sure that they were frank), for their friendliness, absence of spite and ability to reserve individuality even in sombre barracks. We are also grateful to the Commandment of the unit for his cooperation. They agreed that we would repeat the questioning in six months. So, we wish to believe that during these months the situation will improve, at least in the style of work of Sergeant Majour F.
P.S. Looking through the soldiers answers, I found one more complaint against the Sergeant Major/ “the underwear given by him always has holes, and later he wants to see the underwear undamaged”. These words about ripped material, evoked the impression of "déjà vu". I have seen something like that before. Really, the letter by Taras Kholodynskiy from notorious unit A 0666 to his mother contained similar lines: “At night somebody stole my trousers, shirt and boots, replaced my T-shirt with one thats ripped. Only my cap, jacket and belt remained, the Sergeant Major came brought me my jacket and clothes, which I had to mend for many hours, boots also are falling to pieces… Besides, he demands money for that. Mama, I must give him UH by 10 May. I know that you have no money either, and I do not want to ask, but conditions make me to do that…” Most probably, Taras did not have time to receive the money order with these ill-starred 40 UH. On 21 May 2003 he died after falling from roof of a barrack. The circumstances under which this happened, were not ascertained. The version of conflict with the ensign because of this “debt” was not considered by investigating officers of military prosecutors office. The guilty of the enigmatic death of the boy were not found. I want to believe that proper conclusions will be drawn from this tragedy…
The Orange Revolution – 18 months later
Those who remember the amazing sense of uplifting national spirit in Ukraine in autumn f 2004 must notice that the mood in society now is quite opposite. At best its one of apathy and a loss of hope. At worst, there is downright disillusionment with the regime, the President and government. The backlash that the “blue-white” camp hoped for did not eventuate, Even the most detailed spectral analysis of the new Verkhovna Rada shows the predominance of warmer colours. Yet a large number of those who voted for the “orange” team supported the bloc “PORA-PRP [Reform & Order]” and bloc of Kostenko-Plyushch and several small parties. If one adds these votes to the total quantity of the “orange” (which could have happened were it not for the totally inability of our politicians to sensibly negotiate), then the question of a backlash would not seem relevant. Yet the fact is that owing to the “political reform” which from the start was a delayed reaction bomb for the state order of Ukraine, the division of votes for different political forces was absolutely regional.
Ever since the “political reform” was adopted, we have been trying to get through to reasonable politicians of all shades in order to prove that this political reform, approved without any concern for the views and will of Ukrainian citizens, will at best lead to problems. This was confirmed by the political crisis at the beginning of April, and only those blind or overly interested in inept constitutional changes can fail to see this.
The democratic regime brought to power by nationally conscious voters having agreed to the political reform did something that even authoritarian Kuchma had not dreamed of. The authorities deprived itself of power and did not give any alternative to the state. Regular replacement of speakers and the dismissal of governments showed that, unfortunately, Ukraine cannot be a real parliamentary republic today. It has no stable political parties and blocs with distinct difference in economic and social positions, ideological blocs, not purely situational companions. Yet, just this forms parliamentary power. And the reform of electoral laws also envisages the election by party lists to all local councils. These elections and the possibility of dismissing a governor, appointed by the President, by 2/3 of votes of deputies of a regional council will deprive the central power of any influence on events in the state. Incidentally Parliament ihas also lost this power. In this sense our Verkhovna Rada resembles the famous literary work, where a corporals widow flogged herself. When MPs adopted the political reform, they acted as wisely as a man, who cuts an electric wire to improve the light in his room. The consequences for the state are the same.
We feel it especially keenly in our native north-eastern city – Kharkiv. The regime had only just started paying attention to citizens opinion, dialogue however weak and uncertain had only just begun between the regime and society, when the most democratic elections during Ukraines post-Soviet history led to the complete fiasco all more or less democratic candidates for city and regional office. And such a situation is observed in all Western and Southern regions, except Kherson and, strangely enough, Kremenchug. It is difficult to predict what will happen next: collapse in economy, local attack on rights and freedoms of citizens together with threats and pressure on businessmen and mass media or, on the contrary, the sides will seek reconciliation and to forget differences in political shades.
However, even now it is clear that the model of power offered us by the respected deputies is devitalized. It is essentially oligarchic neither during the elections nor in changes to the Constitution nobody takes into account the opinion of citizens. These were merely inter-party conflicts and collisions. Of course its important which party a local council deputy belongs to, but voters are more interested when the rubbish will be collected or whether their flats will be warm in winter. This means that elections by party lists are not only dangerous for the integrity of the country, but are also not needed by anybody except the party members. So, the people of Ukraine who asserted their right to choose their leaders are again deprived of any influence on them
Our regime is closed in on itself which can hardly be called democracy. It is strange that most political scientists do not want to notice this, insisting that with this political reform, we are marching directly to Europe. There is a historical trend that events first take place as tragedy, then return as farce. However, a farce can sometimes turn into tragedy. We have approached, as never before a loss of integrity of our state, power in the country and the power as a whole.
The most democratic power, so it seemed, did not prevent flagrant violations of human rights: the extradition of Uzbeks who were seeking refuge from Karimov, the beating by special squads of prisoners in penal institutions, torture in police, etc. Everybody who has studied history understands that modern democracies were based, first of all, on the rule of law. However, when Ms. Vitrenko says that Crimean Tatars should be driven out from the Crimea, when extremists and provocateurs from Korchinskiys “Bratstvo” try to prevent the arrival in Kyiv of Catholic Cardinal Lubomir Huzar, and the so-called law enforcement bodies pretend that they do not notice this, then this is not democracy, this is anarchy. The Criminal Code of Ukraine contains an article envisaging punishment for inciting inter-religious and ethnic enmity. Nor do Articles about encroaching on on state order and territorial integrity do not work in Ukraine as vividly shown by our regime which disregards statements of some politicians in Severodonetsk. Besides, there are articles on rigging of election in the Criminal Code. Yet, who is brought to answer but as a rule the most pure and vulnerable layers of population? The laws still do not exist for state officials and peoples deputies.
However, it is impossible to establish order in the state without observance of the law, in the face of which all are equal. Only then will it be possible to unite the country. A regime which punishes nobody, protects nobody. Then ordinary citizens seek help from those more powerful than the power: some turn to criminals, some – to extremist or populist forces. The real democrats who came to power must make society respect not state officials, but laws, and only then the officials as guards of the law.
Any revolution as we know from history is a serious upheaval for society. After a revolution the society either moves forward rapidly, or descend into a situation much worse for citizens and the state than before the revolution. Let us hope that we will not end up there.