“Prava Ludiny” (human rights) monthly bulletin, 2006, #12

The human rights situation in Ukraine is to be discussed on Monday 11 December by the Council of Human Rights Commissioner Thomas Hammarberg and the newly-appointed Head of the Ministry of Internal Affairs Vitaly Tsushko.

At the same time, the Ukrainian Helsinki Human Rights Union is reporting a deterioration in the human rights situation in the country.  The human rights group has found renewed pressure on small and middle-level businesses from the tax authorities which had not until recently been observed for a year and a half. It reports that regardless of whether tax infringements have been found, the tax officers are en masse imposing fines on businesspeople in accordance with a plan drawn up in Kyiv.

In eastern regions an increase has been observed in conflict on language and religious grounds, and a skinhead movement has emerged. UHHRU Executive Director Volodymyr Yavorsky comments that these factors are receiving political support in an entire region. “For example, in Kharkiv the areas of conflict are actively exploited by the Party of the Regions whose members take part in antagonistic demonstrations. Other pro-Russian forces, which in the country as a whole are hardly noticeable, are playing a large role at the local level.” He adds that weekly marches by skinheads, as well as their other activities, are closely coordinated with analogous groups in Russia.

The Security Service of Ukraine (SBU) has launched a criminal investigation into the mass violence in Kharkiv on 16 December this year. The SBU press centre informed UNIAN that the investigation had been launched under Article 294 § 1 of the Criminal Code (organization of mass riots accompanied by violence against individuals, as well as active participation in mass riots). The press centre also stated that the SBU had sent formal requests for explanations to state bodies and institutions, as well as individuals, involved in the events of 16 December in Kharkiv. On 18 December the management of the business group “Target” accused the Kharkiv City Mayor Mykhailo Dobkin and the Secretary of the Council Gennady Kernes of provoking mass disturbances and beating up of citizens on 16 December.

The leadership of the Eurasian Youth Union [EYU] is claiming responsibility for dismantling the UPA [Ukrainian Resistance Army] Memorial in Kharkiv.

The leader of the EYU “Network Headquarters”, Pavlo Zarifullin told UNIAN: “The action was organized in response to numerous acts of vandalism against Soviet and Russian monuments in Ukraine, and especially in Halychyna [Western Ukraine]. The UPA Monument was chosen because we consider it a fascist organization which served the Nazi killers. We consider Kharkiv and Ukraine to be our Russian land and therefore we cannot allow monuments to fascists in Ukraine”.

The message from the Eurasian Youth Union received by UNIAN had said that on 20 December to mark

the Day of the Chekist and Stalin’s birthday in the Youth Park in Kharkiv “the funeral took place of the Memorial Stone to the Ukrainian Resistance Army”.

The Head of the Department for liaison with law enforcement agencies, defence and mobilization work and civic defence of the Kharkiv regional administration Oleksandr Nechyporenko called the dismantling of the monument to the UPA soldiers a provocative act with far-reaching consequences. On the subject of the EYU flag and symbols left in the Youth Park, the Head of the Department said that he had been assured by another leader of the Union that the latter was not involved.

The Eurasian Youth Union is an organization aimed at the pro-Russian, pro-Eurasian part of the population. Its aim is the restoration of the empire within the framework of the former Soviet Union. It is notorious in Ukraine for its anti-President and anti-Ukrainian protest actions.

During the night of 19 December the Memorial Stone to mark the 50th anniversary of the founding of the UPA [Ukrainian Resistance Army] in the Ukrainian Youth Park was wrenched from the ground and taken away.  Those responsible erected a black flag with yellow symbols.

Vasyl. Tretetsky, the Deputy Head of the Kharkiv Regional Administration, reports that around the area where the Stone stood, marks were found indicating that heavy technical equipment was used. 

He believes that responsibility lies with the Party of the Regions and Communist Party whose representatives in the authorities recently tried to initiate moves to have memorial plaques to the Organization of Ukrainian Nationalists and the UPA removed.  He does not, however, exclude the possibility that the attack was not on ideological grounds, but to avert public attention from scandals involving the heads of the City Council.

The Memorial Stone was found during the day buried in a pit, after a email was received by the press which also said that the act had been committed to mark the day of the Chekist [Cheka was the first of the many names for the Soviet secret police].

At the present time the Monument is being restored, and police have launched a criminal investigation and are following various leads.

On 16 December around 13.00 near 197 Klochkivska Street the unprecedented seizure took place of a disputed site allocated for construction.

Young people under the flag of the Kharkiv youth organization of the Party of the Regions, as well as the Green Party headed by Andriy Antonov, gathered by the fence around the site.

Their arrival, then later movement and actions were controlled by leaders of the young “regionals”, the youthful deputies Volodymyr Myroshnykov and Maxim Museyev, the “seasoned” deputy of the City Council, “regional” Ihor Telyatnikov and others. The leaders of most of the district councils were present, as well as officials from the City Council legal department.  A part in the incident was also played by a group of Afghanistan veterans, led by Viktor Kovalenko.

Watching the mass disturbance, although in no way impeding it, were high-ranking police officers: Ihor Cherkashin (Head of the public order police for the Kharkiv region), Yevhen Zherebtsov (first deputy to the head of the department of public security), Andriy Starodubtsev (director of the Department for liaison with law enforcement agencies, defence and mobilization work and civic defence of the City Council).  There were also officers from a special “Berkut” unit and around 10-12 ordinary police officers.

After the arrival of Mayor Mikhail Dobkin and Gennady Kernes, a crowd gathered around the building at no. 197, which included many residents of the micro-district. At the improvised rally, Dobkin and Kernes explained their appearance as being “at the request of ordinary Kharkiv people” and talked about how the “price of those trees (on the site) is the fate of people”. After the Mayor’s address with its typical promises of all kinds of good things and listing of all achievements, a crane appeared from behind the building to knock down the fence.

The crowd, egged on by provocateurs from those who had appeared and by the calls from Kernes and Dobkin hurtled to the fence. A few sections were removed by the crane, and young people began pulling down the railing.  Scuffles began and calls to start an attack were heard from the crowd. The Berkut officers restrained the first wave. However Gennady Kernes accused the police of going against the people, summoned Ihor Cherkashin and demanded that the law enforcement officers not interfere.  He stated that they were “holding a peaceful rally”. After this, Cherkashin called on the officers to stand in formation and moved them away from the area of the incident. The police were also ordered by Zherebtsov not to intervene. The activists “in support of local residents”, itching for a fight, burst onto the territory of the fenced off site and began beating up guards there. Around 20 young guards were injured, as well as around 10 chance passers by and local residents. They fell on the guards in groups, kicking until, having fallen to the ground with their arms around their heads, they stopped moving or lost consciousness. Representatives of the law enforcement agencies were at the epicentre of the events but did not intervene.

As a result, four of the victims are presently in the accident and emergency hospital. Another 10 were taken to the hospital or made their own way there with injuries to the face and bruises from beatings.

The “peaceful rally” ended with a subbotnik [work by “volunteers”] demonstratively pulling out the trees. Mikhail Dobkin personally took part. This was at the very place where up till then one of the victims was lying in blood. It did indeed turn out as the Secretary of the City Council had said: “the price of those trees (on the site) is the fate of people”.  We would add that the price might have been human life.

Complaints have already been lodged with the police about the organizing of mass disturbances, the damage to property and inflicting of bodily injuries. The main accusations are against the top leaders of the city as the initiators of the fracas. Video footage of the event will be sent to the Ministry of Internal Affairs, the Verkhovna Rada profile committee and the Prosecutor General.

Background

The site near 197 Klochkivska Street was allocated for construction (with a shopping and amusement centre planned) through a decision passed by deputies from the previous Council. The site was fenced off and guarded. The builders had already carried out a lot of pre-construction work and prepared planning documents, reached agreement with contractors and with investors, as well as a number of jobs on the social program, including replacing ring mains.  

At a session of the new City Council in May this year, despite the rulings of three district courts in Kharkiv and Kyiv, prohibiting even the review of this issue, the deputies revoked the decision of their predecessors.  All of this was at the initiative of the Mayor and the Secretary of the City Council who saw fit to “not notice” the court rulings, violating of course the law. After taking this decision, the authorities announced that the disputed territory was being returned to the residents of the adjacent buildings. This preliminary statement provoked a mood of revenge among the residents of the building nearby.

There were suits in the courts against the decision with rulings not yet handed down meaning that the decision by the present Council may be declared unlawful.

 

The Deputy Head of the Kharkiv Regional State Administration V. Tretetsky is calling for an urgent session of the coordination council on fighting corruption and organized crime.

He stated this during yesterday’s meeting of the regional administration on analyzing the use of budgetary funding. He explained the need for such a step as being linked to recent events in Kharkiv connected with mass assault and unprecedented pressure on law enforcement agencies by officials from the Kharkiv City Council.

“The events in which people were beaten up on 10 December in the Ukrainian Cultural Centre “Yunist” and on 16 December at 197 Klockivska St demonstrate that an organized criminal group is at work in Kharkiv carrying out political orders given by the leadership of the Kharkiv City Council”, Mr Tretetsky stated. He believes that the executive authorities must not pretend that this is mere hooliganism, and that they don’t know who the organizers of such criminal acts and campaigns to discredit the law enforcement agencies are.

In Mr Tretetsky’s opinion, the coordination council on fighting corruption and organized crime needs to urgently consider the issue of whether constitutional rights and liberties are being observed in the Kharkiv region, the situation as regards the fight against corruption in the authorities, and to prepare a comprehensive range of measures to ensure the normal work of law enforcement agencies. He adds that it cannot be excluded that the coordination council will turn to the Council of National Security and Defence of Ukraine asking for an assessment of the situation in Kharkiv as a result of these events.

Viktor Kozoriz, Press Service of the Kharkiv Regional Branch of the UNP [Ukrainian People’s Party]

According to Article 55 of the Ukrainian Constitution, citizens’ rights and freedoms are protected by the court.  The International Covenant on Civil and Political Rights binds each state to ensure every individual effective means of legal protection in cases where rights and freedoms have been violated. The right of protection for any person who needs it is guaranteed by the state and its authorized judicial, administrative and legislative bodies. The court has a particularly responsible role among these means for defending human and citizens’ subjective rights and freedoms. However is the court always an effective means of protection?

If in practice the rights and legitimate interests of citizens were defended, crimes were fully solved and the application of the law was properly ensured, then citizens would have all grounds for taking pride in the law-based country. Unfortunately the courts are virtually inundated with complaints from the public specifically over violations of their legitimate rights in the courts.

To not make unsubstantiated accusations, I would cite several specific examples from the work of the Zachepylivka District Court in the Kharkiv region.

Ms. L. O. Kononykhina from the village of Zaliniyne in the Zachepylivka district decided to go to court over the actions of staff of the district prosecutor’s office who, she alleged, had been irresponsible in their treatment of her application of 10.02.06 to launch a criminal investigation against the former judge of the Zachepylivka Town Court, V. D. Kovalyova, whom, the claimant believed, had handed down a knowingly unlawful judgment.

The complaint against the actions of the Zachepylivka district prosecutor’s office was given for consideration to Judge Y.I. Yatsenko. According to Ms. Kononykhina , there was no court hearing, yet a court ruling turning down her demands, expressed in her complaint and appeal, did emerge from the Zachepylivka court. Incidentally, I had also planned to be present at a hearing into this case, but this was thwarted.

The court hearing was scheduled for 9 a.m. At 8.15 Ms Kononykhina was already at the court and went into Judge Yatsenko’s office. The latter, without any procedural finesse, asked the claimant, standing in the doorway, a few questions. Then he said: “You go home, and I’ll send the court ruling by post”. Five minutes later, in my flat already, Ms Kononykhina told me all of this, not understanding that she’d simply been deceived. She was certain that the court had already ended. At 8.45 I was in Judge’ Yatsenko’s office and asked him to explain what was going on. Had the prosecutor being summoned to the hearing, why had he not appeared and so forth? Yatsenko explained that the prosecutor decides himself whether to appear in court or not, and that it had all been decided already. I waited near the court for half an hour and understood that none of the staff of the prosecutor’s office had arrived (I know all of them), and at 9.20 I telephoned to the district prosecutor’s office

The Prosecutor’s Assistant A.V. Mandych answered and said that none of the prosecutor’s office staff had been called to the court. Yet how could one consider a complaint against actions of staff of the district prosecutor’s office without their presence?

The applicant by then had looked over the protocol of the court hearing in the Zachepylivka court and discovered total distortion of the events and facts in her case. A claim in response was immediately submitted to the Appeal Court. The latter reviewed the material and upheld her claim. After all, as noted during the court hearing, the review of the case had taken place with flagrant infringements of procedural legislation, and even the date of the hearing had been a non-working day. Later the case was heard in the neighbouring Krasnogradsky district, then in the Supreme Court, however with no success for the applicant. This is our justice system. The Kononykhina gained a degree of publicity in the district which cannot fail to impact upon the authority of the court itself.

Ms Kononykhina, a solo mother bringing up two children is trying, through the court, to prove her right to a share in some land, but with no result. The entire reason is a court ruling which, incidentally, was initially supported by both the regional prosecutor’s office and the appeal court.

The proof that she is defending her legitimate right to own the land share is the mere fact that the Zachepylivka prosecutor’s office, under pressure from the Prosecutor General, has already approached the district court three times asking that the claimant’s right of ownership of the land be restored. There had already been two court reviews into the case, yet the court had found grounds for turning the prosecutor’s office down. According to Prosecutor’s Assistant Mandych, Judge P.V. Hryshyn who considered the prosecutor’s submissions, told him after the hearing that however many times they presented this issue in court, they would be turned down.  The right of the applicant to own the land was also considered at a session of the village council, at a meeting of the district land commission, and all unanimously affirmed the right, however due to an unjust court ruling, the case has remained unresolved. I am presenting all of this in order that the reader can understand how “difficult” it is for the Zachepylivka District Court to acknowledge a court “mistake” and therefore analogous mistakes are repeated. The appeal to Kyiv also resolved nothing.

The answer from the Head of the Council of Judges of the Kharkiv region to the claimant’s complaint, on instructions from Kyiv, proved to be a standard meaningless formality, an attempt to conceal the crime committed by Judge Yatsenko, relying on the legal lack of knowledge of the claimant.

Such a response is overt trickery since the instructions on reviewing the given case was virtually ignored by a number of judges in the Kharkiv region.

Turning to the Higher Expert Board of Judges of Ukraine, Ms Kononykhina hoped that an objective official investigation would be carried out into the events above, that official fraud would be proven and that there would be a statement of no confidence in Judge Yatsenko for violating his oath. It should not happen in the country that individual, chance public officials compromise the entire state authorities.

However all hopes were in vain.

An analogous situation emerged with my application to bring criminal charges against former judge of the

Zachepylivka Town Court  M.D. Kovalyova.  As a result of criminal actions by the judge and prosecutor’s office I was unlawfully convicted, however the court verdict was justly quashed by a resolution of the appeal court on 16.11.01. All of my evidence is substantiated by documentation. At the same time the prosecutor of the district and the prosecutor’s assistance Ms R.V. Komar and Mr Mandych found no violations in the actions of their predecessors and they turned down my application for a criminal investigation to be launched.  This resolution emerged after 148 days, instead of the ten as required by the Criminal Procedure Code [CPC].  The case was handed to Judge Yatsenko whom I demanded be removed, referring to his ability to falsify court documents. The head of the court deemed my arguments to be unfounded which gave Judge Yatsenko the right to ignore all existing moral and ethical norms of behaviour for an “independent” judge and conclude the review of the case without my participation. During the appeal consideration it transpired that there was not even a protocol for the court hearing which is a flagrant violation of the CPC. This also demonstrates that the court ruling was passed, as they say, without trial or investigation. Is this not criminal, not a violation of the judge’s oath?

The head of the court handed further consideration of the case to Judge P.V. Hryshyn, whom I think it would be suicidal to have confidence in. Another statement was submitted declaring lack of trust, which was again rejected, and the case went along the old tracks. My statement was not upheld and this was done quite brazenly.  Before the hearing itself, the district prosecutor foisted his ruling , which revoked the ruling of his assistant, on the Judge I found this out during the court hearing from the Judge. It is difficult to understand what the point of having a court hearing was in such a case.

Furthermore, in my view, nothing happens by chance in the Zachepylivka court. In violation of Article 375 of the Criminal Procedure Code, Head of the Court.H.V. Boiko unlawfully terminated my criminal case without consideration of the merits in 2001. I attempted to prove that there had been exceptionally grave violations of my constitutional rights in the court.  Even that was not enough for Judge Boiko and on 28.07.03, without informing me, he initiated a review and analysis of my criminal case. As a result, I was acquitted under one article of the Criminal Code, and charged under another. I found this out by charge through a letter from the Prosecutor General. This is how the judges interpret their oath in the Zachepylivka, virtually privatized, court,

At 9 a.m. on 29 March 2006. I entered the court building to look at the notice board in the corridor near the entrance. The head of the court, knowing my attitude to him, came up to me and began asking provocative questions. I was silent for a long time because I thought that any conversation would end badly. To his fourth question I gave an answer which he clearly did not like and he grabbed me by my jacket sleeve and began dragging me along the corridor. I was forced to shout to the entire court demanding that he release me. When he let me go, in a threatening tone he said that “we can deal with you another way”. All of this was observed calmly by the assistant to the district prosecutor, A.V. Mandych. This is how the head of the court saw fit to treat a citizen of Ukraine, a pensioner, civil servant with thirty five years experience and the head of the district organization “Partiya pravozakhystu” [Human rights protection party].

Residents of Zachepylivka are afraid to make public information about the judges’ lawlessness, since they  are involved in business and there are obviously problems, by no means small ones. After all these heads of the court and of the prosecutor’s office have for many years behaved so that everyone understands that they are the bosses in the district. For this reason I understand why even President Yushchenko in his address at the opening of the session of the new parliament said that the judiciary in the country had already reached a critical point in terms of corruption. I would accept such a description as correct for our district.

My criminal case has not been reviewed for years. I was told by the head of the court that I could do nothing since he was appointed for life. I can’t prove in the court that I was unlawfully charged by the prosecutor’s office of the district. In conclusion I would note that I am not evading trial, but on the contrary demand that a court investigation be carried out. After all, I stand accused but don’t know of what. I have a higher education, have an experienced lawyer, have a son with a legal education and can do practically nothing. The head of the court is not obeying instructions from the Supreme Court or from the appeal court. What kind of system of court justice is this? And what can an ordinary citizen achieve in such a court?

Undoubtedly, through their unlawful actions the heads of the law enforcement organizations first of all compromise all state authorities. We have a virtually privatized state service. What sort of democracy can one expect in such a situation?

The facts I have presented give me grounds for asserting that the activities of the Zachepylivka court and prosecutor’s office are entirely criminal, charlatanism and a mockery of human rights. It is a point of honour for the judiciary to put an end to this chaos by declaring a lack of confidence in these crooks who abuse their oath.

My letters to the Higher Council of Justice, to the Ministry of Justice, to the Higher Expert Commission of Judges of Ukraine on the state of affairs with the courts in the region have not received due attention. They find no grounds to react appropriately. My conclusion is therefore that we need not legal reform, but a legal revolution.

On 25 December the “Dobrochyn” [Charity] Centre won its civil suit against the Kulykivsky police.

Oleksandr Pidhorny, Head of the  “Dobrochyn” Board recounts: “Over a period of two months our organization sent formal requests for information regarding the observance of human rights to subdivisions of the Department of the Ministry of Internal Affairs for the Chernihiv region. Unfortunately in the majority of cases we received no response. We lodged administrative suits against the “most persistent non-respondents” and here we have won our first case!”

The court hearing was presided over by Judge M.M. Bily and Secretary Boiko, with representatives of the “Dobrochyn” Centre and the Kulykivsky District Police Station present.

Reference by the representative of the Kulykivsky District Police Station to recommendations from the Department of the Ministry of Internal Affairs for the Chernihiv region not to provide information as it is a structural subdivision did not convince the presiding Judge.

The Court’s judgment was unequivocal. It declared the behaviour of the Kulykivsky District Police Station in not providing the information requested unlawful and ordered it to rectify the situation within a month.

It seems you can if you’re a member of the Party of the Regions. And if you’re also the Mayor, who gained your position conning Kharkiv residents by claiming that communal charges didn’t have to be increased, and that he’d make Russian a state language, or at least “regional”. For Kharkiv voters that was all music to the ear.

However there wasn’t time to place the ballot papers in the archives before all changed. And how! Not only did prices for heating, water and electricity rise, but also rents 4,5 times,  The amount of rubbish in the city has increased with nobody cleaning the streets, the roofs are full of holes, the lifts don’t work, and the number paying communal charges has fallen to 25%!

Incidentally the Kharkiv Mayor quickly explained that the blame for Kharkiv residents being so bad at paying communal charges lies with the media since they tell the population that you only have to pay for those services that are actually provided!

At the same time the city authorities decided to get rid of “small architectural forms”, i.e. kiosks, especially those whose owners do not belong to their team. Then there was a new idea, to get rid of 7 markets in Kharkiv, and most oddly, those in the most convenient places – one in the centre, and others near metro stations. Representatives of the authorities cynically explain to Kharkiv residents that we’re moving towards Europe, and that they’re doing it for us, so that we’ll buy products in supermarkets where the conditions are better. Yes indeed the conditions are better, however the prices at the markets are lower which is very important for many people. And anyway, the argument is feeble. In the centre of Munich there is a clean, respectable market which is well-frequented. The authorities in European markets make sure that order is maintained, and that they’re clean. But we have our own way – to drive all into supermarkets, and preferably to those belonging to “our people”.

And then there are the corruption scandals and the total lack of respect for the local community. It’s unheard of – even in the days of absolute secrecy of the authorities, access to the buildings of the City Council was open. At most the guard might ask who you were going to see. Now the new authorities have banned free access to the city executive buildings. Well, they don’t want to see the public, they stop them from working.

Then Kharkiv people came round!  An organization “MIska varta” [“City Watch”] appeared, with its members deciding to organize a referendum in Kharkiv, to express a vote of no confidence in the City Mayor Mykhail Dobkin. It’s seemingly allowed by law. However the law on local referendums is written so that nothing can be carried through to its logical conclusion. According to the law, the instruction on initiative groups must be signed by the Mayor, and then the City Council must give permission to hold the referendum. This all means that the law contains norms which unquestionably protect the local authorities.

The Kharkiv authorities chose another path. The first meetings of citizens held in all districts of Kharkiv to form initiative groups were declared to have been run with serious infringements, at 4 o’clock when it was already almost dark and with people from other districts, etc.

Repeat gatherings were scheduled for 9, 10 and 11 December however all of them were disrupted.

People who planned to take part in meetings of residents of the Moskovsky district have approached the Kharkiv Human Rights Protection Group. They consider that the city authorities did not provide for and protect their constitutional right to peaceful assembly. The events which they describe were as follows: the meeting was scheduled for 4 o’clock in the Ukrainian Cultural Centre. The notification that the meeting would be held had been submitted on time to the city authorities, the premises had been paid for, however the meeting was disrupted. At 14.00 buses arrived at the Centre from which elderly women were escorted out, taken into the hall and these then occupied all of the places. They behaved very aggressively, not letting anyone into the hall and making registration of the participants impossible.

A little later some young men of a specific appearance arrived, among whom were also deputies from the City Council and official of the city executive community. They burst into the premises, interfered with the meeting and even provoked scuffles. Cars belonging to members of “City Watch” had their tyres burst.

The organizers of the meeting called the police however the latter, perhaps deciding not to intervene, did not come.

All of these events are almost exact replicas of the events in 1989 when State Deputies of the USSR Vitaly Korotych and Yevgeny Yevtushenko were put forward as candidates in Kharkiv. The halls were also filled with their people, tyres were also let down and the police never intervened in the conflict. And what did it achieve?  They gained not just a majority in Kharkiv, but 87%. The stupid and clumsy actions of the authorities caused confrontation, leading to people joining together and learning to stand up to the authorities.

Then there were the presidential elections in 2004. The same disrupted gatherings and meetings with presidential candidate Viktor Yushchenko, the same burst tyres,  the young thugs in black leather brought there in buses.  Vote-rigging at the elections, threats to officers at polling stations. And the result – confrontation between city residents, between citizens of Ukraine?

Then it seemed that Maidan had wrenched both the authorities and society away from their post-Soviet state.  However post-Maidan events showed that society has not moved so far and the authorities simply long to go backwards. Sometimes it even seems that for the Party of the Regions the best was the experience of the Bolsheviks – a single party system of power and Soviets which carried out Party orders.

Maybe they will with time swallow up the communists and the socialists, and simply get rid of the others. The experience is there. It’s true that it will be uncomfortable to use bank accounts in foreign banks since the single party system demands an Iron Curtain.

[From PL: We can provide the numbers of the buses in which “brothers” were transported to the Ukrainian Cultural Centre]

1. 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

(Article 11, European Convention for the Protection of Human Rights and Fundamental Freedoms)

The group’s aim is to monitor observance of the right enshrined in Article 11 to freedom of peaceful assembly and freedom of association with others in Ukraine

The human rights group “Article 11” is made up of concerned citizens who are acting on the principle of voluntary cooperation, without forming a legal entity. They do not have any property and are not carrying out financial activities. Members of the group are all working on an unpaid voluntary basis.

Unfortunately the public are not sufficiently aware of the extent of the arbitrary lawlessness which state registration bodies display when legalizing citizens’ associations, thus violating laws of Ukraine, the Constitution and international agreements (including the European Convention for the Protection of Human Rights and Fundamental Freedoms).

Our right to free association with others and to form civic organizations was denied by the Kyiv City Department of Justice. For the formation of our environmental NGO such demands were made regarding amendments to the charter as to make the organization incapable of functioning and its existence pointless. We did not wish to put up with CENSORSHIP OF CIVIC SOCIETY and lodged a claim with the court. We went through the Pechersky District Court in Kyiv, the Kyiv Appeal Court and the Supreme Court of Ukraine.

At present our application is under review in the European Court of Human Rights (Koretsky and others v. Ukraine (№40269/02).

We are seeking:

• The banning of censorship of charter documentation of citizens’ associations in the process of registration;
• The introduction of a range of measures to protect newly-formed NGOs from pressure exerted by registering bodies;
• Changes in legislation, court proceedings and practice in matters pertaining to the registration of newly-created civic organizations.

The “Article 11” website can be found at: http://article11.org.ua/.

The Group’s members would like to draw the attention of the Ukrainian public to a problem which is hampering the development of civic society in Ukraine. Our possibilities are limited, however we can maintain this site and publish information about all violations which Ukrainian citizens run up against when legalizing and registering civic organizations (NGOs).

Proceedings are underway in the European Court of Human Rights in the case of Koretsky and others v. Ukraine (№40269/02).  The given case is interesting in that the applicants are demanding fundamental changes in the relations of citizens and civic association with the state.

Probably anybody who has tried to create a new civic organization has run up against obstacles created by the state registration bodies subordinate to the Ministry of Justice (the censorship of charter documentation, “advice”, applications for registration being turned down, banal bribe-taking, or others). The state, which talks so much about the development of civic society, is systematic in nipping the manifestations of such a society in the bud.

The Judgment in the case №40269/02 of Koretsky and others v. Ukraine will not only determine the future development of civic organizations in Ukraine, but could also provide a general model for the relationship between government structures and the public in all countries that have ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. 

This was the message at a press conference on Tuesday, 5 December 2006, given by the applicants in case №40269/02 Serhiy Koretsky, Andriy Horbal, Oleksiy Lobytsky and Andriy Tolochko, together with their legal representative in the European Court of Human Rights Taras Shevchenko.

The press conference was also attended by the Deputy Minister of Justice Valeria Lutkovska, Ukraine’s Representative in the European Court of Human Rights Yury Zaitsev and the Director of the Department for the legalization of civic associations within the Ministry of Justice Olena Semyorkina.  A full transcript of the discussion will be posted on the site www.article11.org.ua in the near future.

“At the beginning of the year 2000, aware of the rights guaranteed us under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms we resolved to attempt to put these rights into practice. We decided to create a civic organization, not “as is done” according to unwritten practice in Ukraine, but an organization that we really need and that will achieve the aims we set and be effective”.

We created the “Civic Committee for the preservation of the wild (indigenous) nature of Berezhnyaky”. Our task was to prevent disaster looming in Kyiv. We stated the aim for the formation and functioning of the new organization in the Charter openly, not hiding behind standard clichés and not concealing the essence behind general phrases. This was a test for state registration agencies of their ability to work in conformity with international norms for a democratic society.

The Civic Committee’s application for registration was turned down. As grounds for this rejection the Kyiv Department of Justice used seven unlawful reasons (not foreseen by Articles 4 and 16 of the Law “On citizens’ associations):

• The aim of the Committee in its Charter is formulated in two points;
• The executive directorate of the Committee has the right to organize the everyday economic activity of the organization;
• The Committee states its right to carry out non-profit making publishing activities;
• The Committee declares its right to have representative offices in other cities in Ukraine;
• A photocopy of the document proving payment of the registration fee with the possibility of checking it against the original (the Department of Justice clearly tried to take the original of the receipt);
• And finally, the Committee planned to use volunteers for some of its planned actions!

And even the fact that the founders conceded to certain demands from the state registration body, and adopted a new version of the Charter, we still failed to meet the requirements of the registration body.

After all the actual aim and tasks of the new organizations remained essentially unchanged (cf. appendix 2). And the authorities did not want to allow such an organization at that time. The environmental organization was declared outside the law. In accordance with Article 27 of the Law of Ukraine “On citizens’ associations”, an organization which is refused registration must be disbanded. Participation in the activities of such an organization are liable to administrative or criminal prosecution.

We lodged an appeal with the court against the actions of the Kyiv City Department of Justice (a subdivision of the Ministry of Justice). Not surprisingly, we lost all court cases within Ukraine, with the actions of the Department of Justice being found to be “not in contravention of domestic legislation”. The judgment of the Supreme Court was final and “not subject to appeal”.

After this we had no choice but to appeal against the legislation and court practice of Ukraine. Therefore,

on 12 September 2002 an application was lodged with the European Court of Human Rights, which is now Case № 40269/02 of Koretsky and others v. Ukraine (although the essence of our demands are in fact standing up “for Ukraine”)” 

We expressed the substance of our claim as follows: “We ask the Court to rule that the State of Ukraine violated Article 11 of the Convention (the right of freedom of association with others) in the process of legalization of the “Civic Committee for the preservation of the wild (indigenous) nature of birch forests”, and to order it to (recommend that it) bring its legislation, executive and court practice into conformity with norms of international law on human rights. We ask in particular for measures to be taken to prevent the censorship of charters of newly created civic associations, the putting forward of supplementary recommendations and demands, as well as other forms of pressure on newly-created civic associations in the process of legalizing their existence”. (quoted from the Application lodged with the European Court).

“We demand a reform of the state system of legalization of citizens’ associations and its democratization for the benefit of civic society. We call for the functions of state registration bodies to be limited to registration itself, and to prevent cases where these bodies take upon themselves the function of banning nongovernmental organizations, with this being exclusive the role of the courts”, the press release states.

The violation took place in 2000. The Ministry of Justice has since 2001 been defending its right to censorship (by making amendments to the charters of citizens’ associations) in the courts.

When in spring 2006 the case came up on the European Court’s agenda for consideration, it became clear from the official response of the Ukrainian Government (from 14 June 2006) that the attitude of the authorities to the public has not changed and the executive branch of power is sticking firmly to the position taken in 2000.  Their line is that there was no violation, that their treatment of the “Civic Committee for the preservation of the wild (indigenous) nature of birch forests” was as it should have been, and that they will continue to do the same with all those who dare to “stick up for their rights”. The level of awareness of executive and judicial bodies so far remains unchanged

The formal grounds for the actions of the Department of Justice were the claim that the Charter did not “comply” with various, arbitrarily chosen, articles of laws of Ukraine. And the actions of the Department were deemed by the courts to be “not in contravention of domestic legislation”. Such an approach demonstrates the legal illiteracy of our judicial system. In a law-based state all would be different: the actions of citizens are “not in contravention of legislation”, and they have the right to everything that is not prohibited by law. And it is the actions of state bodies that must be clearly restricted by the formulations of laws and checked in terms of their “compliance with the law”. That is, state bodies have the right to do only what they are assigned to do and must not step outside these boundaries. From this we have the criteria of “compliance”. Members of the public have the fundamental rights and freedoms guaranteed by the Convention, and the possibility of being guided not only by the law, but by their own will.

It is time that society recognized the role of the system for legalizing citizens’ associations as being equivalent to a means of control by the state over civic society. Today this system is a relic of long past times. It can be used (and is clearly used) not only be state, but by shadow groups in order to stifle unwanted citizens’ associations and to modify civic activity in society

This judgment will have impact on each citizen of Ukraine when they determine whether it is worth taking the trouble to participate in creating and legalizing their own citizens’ organization. Will they wish to exercise their fundamental right? Do many people dare to do this nowadays?

Society must know that in the European Court of Human Rights a case is being considered with likely ramifications for each Ukrainian citizen.

Finally, the applicants announce the creation of a human rights group “Article 11”. The aim of the group is to monitor observance of the right to freedom of peaceful assembly and freedom of association with others in Ukraine (Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). “Article 11” calls on all those who have encountered violations of the above-mentioned right to send information to the following address: [email protected]. The information will be placed on the site www.article11.org.ua for general access. .      

 

Appendix 1

The European Convention for the Protection of Human Rights and Fundamental Freedoms

 

Article 11
Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

(Rome, 4 November 1950)

Kharkiv Human Rights Protection Group’s Co-Chair Yevhen Zakharov announced on Thursday, 28 December at a meeting of the Kharkiv Press Club that the human rights group was investigating cases involving harassment of foreign students in the city.

He said that the circumstances of the case had not yet been fully clarified, but that the human rights group had decided to take action after receiving complaints from foreign students.  The students say that during the second half of 2006 they have experienced “systematic persecution on racial grounds” and are frightened to walk around the streets (previously there were only isolated incidents of harassment). In November 2006, for 2-3 Saturdays in a row there were night marches by young people holding candles and chanting “Ukraine for Ukrainians” near the student hostels on Tsepynohradska St.  Public order was maintained by the police. After the marches ended, the police went into the hostels to warn the students that it was better not to go out since excesses were possible. The participants in the march dispersed in groups and beat up any foreigners they met. There are reports from people from Asian and African countries who described such excesses and also presented videos (of poor quality). The problem is that the people who have turned to KHPG are frightened to go to the police and ask that their names are not revealed, which makes the investigation difficult. It is known that on 25 November a foreign student from the National Pharmacology University was beaten up. The Dean of the student’s faculty wrote a report to the police and the culprits were found and are now awaiting trial. The university has fully paid for the student’s medical treatment. “If all the students were more active and complained, it would be better since the police would look for the culprits”, Yevhen Zakharov stressed.

According to the Group’s information, the protest near the hostels on Tsepynohradska St. was organized by a students’ organization to supposedly demonstrate that our students live worse than foreign students. Yevhen Zaharov comments: “I don’t believe that you’ll find civic organizations and student enthusiasts who will go on marches at midnight just like that.  I’m afraid that this matter should be looked into by the SBU [State Security Service]. That is, it’s some kind of orchestrated protest and somebody really wants us to look bad, that’s the impression one has”.

On Friday, 8 December, on the eve of International Human Rights Day, the first laureates were announced of the annual anti-award launched by the Ukrainian Helsinki Human Rights Union for the most flagrant human rights violation “Thistle of the Year – 2006”.

The Competition Committee made up of six of the nine members of the UHHRU Board unanimously chose the following four Thistles of the Year:

1)  The Prosecutor General of Ukraine in the category “Least open state authority” over:

• The Order of the Prosecutor General of Ukraine No. 89 from 28.12.2002 “List of documents created through the work of offices of the Prosecutor of Ukraine containing confidential information designated with the stamp restricting access “For Official Use Only”” which is in clear contravention of the Constitution and the Law on Information.  On the basis of this Order, information about violations of rights and liberties, the results of special investigations and other information of public importance are classified;
• The lack of open access to normative acts of the prosecutor’s office, with these acts for some reason not being registered with the Ministry of Justice;
• The most refusals to provide information or failure to respond at all to formal requests for information, based on figures from monitoring by human rights groups;

2)  The State Department of Ukraine for the Execution of Sentences [the Department] for its inaction and lack of adequate reaction to violations of prisoners’ rights as evidenced by:

• Its failure to introduce an independent system for considering complaints alleging violations of prisoners’ rights;
• The lack of reaction to complaints about the actions of officers of the Department. According to available figures, of 473 complaints received by the Department in 2005 and over the first 6 months of 2006, NOT ONE complaint was found to be justified after their so-called investigations;
• The absence of appropriate response to the numerous cases involving suicide attempts by a number of prisoners during 2006;
• The large number of complaints from prisoners alleging torture and ill-treatment;
• The formation of special armed units for ensuring order in penal institutions, over which numerous complaints have been received about unwarranted use of violence against prisoners.

3)  The Security Service of Ukraine [SBU] and the Prosecutor’s Office of Ukraine over the unlawful deportation on 14 February 2006 of 11 Uzbek asylum seekers to Uzbekistan, as a result of which those deported were sentenced to periods from 3 to 13 years imprisonment for their alleged participation in the Andijon events [of May 2005].  The violations of Ukrainian legislation and international commitments were confirmed by the Ministry of Justice of Ukraine and condemned by Ukrainian human rights organizations, the US State Department and OSCE, international human rights organizations, the International Helsinki Federation for Human Rights, Amnesty International and Human Rights Watch. Despite this, those responsible have not been punished and are continuing to claim that their actions were correct.

4)  The Prosecutor’s Office in Alchevsk in the Luhansk region for systematic and the most flagrant lack of action over violations of human rights through their repeated refusal to carry out a proper investigation into cases of torture and ill-treatment by police officers.

 

The Anti-Award “Thistle of the Year”, launched by the Ukrainian Helsinki Human Rights Union, is awarded to institutions or individuals for the most shameful and dangerous violations of human rights and fundamental freedoms. All individuals and legal entities may nominate candidates. The nomination is carried out by submitting a proposal to the Organizing committee with the only condition being that the proposal may not be anonymous. The awards are made by a Competition Committee made up of members of the UHHRU Board. All information is checked carefully before the selection is made.

The awards were made this year for the first time, and the results announced by Head of the UHHRU Board Yevhen Zakharov and UHHRU Executive Director Volodymyr Yavorsky.

The “Laureates” receive a symbolic thistle branch, a certificate which explains exactly why they have received the anti-award, and reports on the human rights situation in Ukraine for the last two years.

The human rights defenders also spoke of the most typical and flagrant violations of human rights in Ukraine recorded recently. Among these are also the increase in tariffs on housing and communal services which violates people’s socio-economic rights, the rise in xenophobia which has recently taken on frightening proportions especially in the East of the country, as well as discrimination on religious and ethnic grounds, also observed in the East.

Copies of various statements and complaints relating to the violations of human rights mentioned above were also presented during the ceremony.

Viktoria Onyshchenko

UHHRU

State Deputy of Ukraine and First Deputy Head of the Crimean Tatar Mejilis, Refat Chubarov has asked the Council of Europe Human Rights Commissioner Thomas Hammarberg to initiate an investigation by the Council of the issue around the restoration of the rights of the formerly deported Crimean Tatars.

Refat Chubarov said that despite Ukraine’s achievements on the path to democracy and protection of human rights, the catastrophic consequences of the criminal deportation of the Crimean Tatar people carried out under the Soviet regime remain an unresolved problem.  He adds that even after the adoption in 2000 by the Parliamentary Assembly of the Council of Europe of recommendations to Ukraine on repatriation and integration of the Crimean Tatars into Ukrainian society virtually nothing has changed as regards their rights. He believes that the open disregard by the central authorities of the importance of a comprehensive resolution of the political and legal aspects of the Crimean Tatar issue is not only failing to promote the restoration of the repatriates’ socio-economic and cultural rights, but is leading to new discrimination, especially in land and educational issues. Chubarov considers therefore that it will only be through the united efforts of the Council of Europe and the Ukrainian authorities, with the involvement of the Mejilis, that effective and just legal mechanisms will finally be found aimed at safeguarding the rights of the Crimean Tatar people.