“Prava Ludiny” (human rights) monthly bulletin, 2009, #03
First comments on the Ternopil regional Council elections Against torture and ill-treatment
Prosecutions over the death of a detainee in Pryluky Freedom of expression
The Limited Force of Fine Words Television: will it be controlled in the run-up to the elections? Social and economic rights
The Pain of children of migrant workers The right to health care
Your health – and ours Children’s rights
Ukraine vs. Children: Whose side is the court on? Interethnic relations
Nationality does not predispose a person to crime Roma community – the most discriminated against minority in Ukraine News from the CIS countries
St. Petersburg court again decides in Memorials favour Show trials past and present
First comments on the Ternopil regional Council elections
A rather dramatic, and potentially momentous, election took place on 15 March to the Ternopil Regional Council. It resulted in the All-Ukrainian Organization [VO] “Svoboda” receiving 35% of the votes and thus gaining a majority on the Council. The event was significant for three reasons:
- The elections were called because the Councils activities were effectively blocked by conflict between the two parties in control – BYuT [Yulia Tymoshenkos Bloc) and Nasha Ukraine [Our Ukraine];
- Attempts to cancel the elections and a string of court suits until the day before the elections. The claims were made very publicly that the reason for the Governments attempt to cancel the elections was predicted low support for BYuT and likely support for VO “Svoboda”;
- We will be returning to this last subject. Until last Sunday the party VO “Svoboda”, headed by Oleh Tyahnibok, and with a rightwing nationalist and the only political force ethnic proportional representation, had minimal electoral support. During the 2007 parliamentary elections, for example, it received just 0.76% of the votes.
The Committee of Voters [CVU] has reported on all early elections held on 15 March, but gives particular attention to the elections in the Ternopil region and says that 5 mobile CVU groups monitored the voting on Sunday. It reports no major violations which could have influenced the result.
In the Ternopil region elections 52% of voters took part which the Committee considers to be a fairly high turnout since in previous early elections no more than 30-40% of the electorate have used their vote.
VO “Svoboda”; 35%
“Single Centre” 14%
Party of the Regions 10%
Ukrainian Peoples Party (UNP) 8%
Nasha Ukraina 5%
Lytvyns Bloc 4%
CVU outlines the run up to the elections, the decision on 3 March by the Verkhovna Rada to cancel its own resolution from December setting elections. CVU does not focus on the arguments put forth in court, however it is worth mentioning one: the Constitution states that the Verkhovna Rada should set elections, but says nothing about the authority to then cancel them.
- “CVU considers that in the situation with the Ternopil Regional Council elections technology for disrupting elections was used, albeit unsuccessfully. Elements of this process were partisan court rulings (court administrative resource); the use of the law enforcement agencies for political purposes (the police at a certain stage stopped performing their duties as to ensuring protection of the ballot papers); withdrawal of members of polling station electoral committees in order to prevent there being a quorum. However joint efforts by members of the electoral committees, political forces and the public prevented disruption of the elections”;
- The most serious violation the CVU observed was the presence of campaigning material at a time when campaigning was prohibited. “However CVU did receive reports of attempts to bribe voters from one political force and calls on the law enforcement agencies to investigate all such cases. At the present time, CVU sees no grounds for disputing the election results as a whole.”
- “Analyzing the election results, CVU concludes that the political and economic crisis in Ukraine has led to voter disillusionment in the parties presently represented in bodies of power. This in the first instance influenced the drop in popularity of the biggest parties represented in parliament. Over recent times their actions demonstrate that large parliamentary political forces are beginning to avoid direct elections. An attempt was made to cancel the elections to the Ternopil Regional Council, an initiative voiced to lengthen the term of office of present city mayors for another year, as well as talk presently of cancelling direct Presidential elections through constitutional reform. . If all these initiatives are implemented, than the nearest general elections in Ukraine could take place only in two years, this being local elections in March 2011. “
- “CVU is aware that in conditions of crisis the holding of elections is an additional strain on the political and economic situation, however the right of citizens to periodic democratic elections is a fundamental principle set down in international documents. Unlawful extension of period of office and the cancellation of direct elections is a violation of international standards and agreements.”
- “The early elections on 15 March once again demonstrated the need for swift electoral reform in Ukraine. Work needs to be stepped up on creating a voter register since there is a danger that should the electoral campaign begin in autumn 2009, the elections will again take place without a register and with wide-scale mistakes on the lists. A change is needed to the electoral system for parliamentary elections – the introduction of open regional candidate lists. All electoral legislation needs to be brought together into one general Code on the Elections and Referendums which would remove most problems in preparing for the elections”.
Quoted material from the CVU Press Service at www.cvu.org.ua
Against torture and ill-treatment
Prosecutions over the death of a detainee in Pryluky
10 officers of the Chernihiv Regional Department for Fighting Organized Crime [UBOZ] are facing criminal proceedings over the death of a detainee. This is one sixth of the number of officers in the department.
As reported at the time, on 3 October 2008 the Chernihiv Regional Prosecutor initiated a criminal investigation over the inflicting of serious bodily injuries which had caused the death of an UBOZ detainee and exceeding their powers.
In an interview reported at www.prokuror-cn.gov.ua,, the Head of the Criminal Investigation Department of the Chernihiv Regional Prosecutors Office, Dmytro Kalyta said that the investigation was at the final stage. Of the ten men from the Chernihiv Regional UBOZ facing charges, six had been remanded in custody. They are facing different charges depending on their level of involvement. Some will be charged under several articles of the Criminal Code.
Mr Kalyta was not prepared at this stage to say how serious the charges are, but pointed out that the fact that six men had been remanded in custody gave some indication of the level. .
Asked how the fact that the UBOZ officers were dealing with people suspected of serious crimes influenced the investigators attitude to the officers behaviour, Mr Kalyta replied:
“It doesnt influence it at all, each much answer for his own actions. Unlawful methods of detective examination are also a crime, particularly if they lead to some tragic consequences. The Prytuly man who died had not been found guilty by a court, criminal proceedings had not even been initiated. According to the Criminal Procedure Code he did not have suspect or accused status, nor was he on the wanted list. This is an extremely important point for a legal assessment of the actions of those who detained him.
- And how do you related to the pickets demanding that the police officers be released?
At the beginning of October there were indignant people on the streets in Pryluky demanding, on the contrary, that those guilty of such lawlessness be punished. Now there are different people with their own slogans. We cant act to please one party or another, but only in accordance with the law, finding out what happened objectively.
Mr Kalyta says that while in some ways he was pleased to see action in defence of police officers, suggesting that people are often more concerned about representatives of the criminal world, such demands outside the Prosecutors Office are a form of pressure on the investigators which is unlawful. Especially given that they did not pass without excesses.
Asked whether the trial would be in an open court, he said that this was for the court to decide, but that he saw no grounds for holding it behind closed doors.
The interviewer was N. Chus, Press Secretary for the Chernihiv Regional Prosecutors Office
Freedom of expression
The Limited Force of Fine Words
Freedom’s just another word for nothing left to lose,
Nothing ain’t worth nothing, but it’s free …
Two men are running along the street: the one in front is black and wearing jeans, behind him your typical English Bobbie, police helmet and all. That was the photograph on a big poster in the London Underground. I wouldn’t have paid any attention except for the sign: “Another example of police prejudice or of yours?” Well, now that made me stop and read the explanation. It turned out that the guy in front was the head of the local Criminal Investigation Department, and the uniformed man a rank and file police officer taken on to help. And what did you think? So did I.
The advertisement against prejudice and an enforced session of self-analysis have stuck in my mind. I’d like to say the same of the advertising campaign against racism which began in Kyiv last week. No criticism intended, only I’ve long been sceptical of calls to love, respect or not beat up somebody. I usually don’t react at all, or with irritation. You need to fight all forms of primitive prejudice, just not with exhortation alone.
A little context: in 1993 the murder of Stephen Lawrence, a black British teenager, and a whole series of mistakes by the police resulting in the likely murderers escaping justice aroused a wave of indignation in Britain and accusations of racism. It is not totally clear why the case was so shamefully bungled however the public outcry probably spurred the police to take measures not only against racism in society, but within their own ranks. It would seem with considerable success.
This did not stop the radical rightwing British National Party (BNP) with its overtly racist and intolerant philosophy from winning a by-election recently. The result came as a shock for many Britons, although it wasn’t particularly difficult to predict. Among EU countries the UK has probably been hit hardest by the economic crisis, and employment centres are seeing 10 people competing for each place. A lot of people claim that foreigners are taking away their jobs.
Does it all sound familiar? Against a background of the victory on Sunday of the All-Ukrainian Organization [VO] “Svoboda” [“Freedom”], certain similarities do hit one in the eye. So too, though, do some differences which will be discussed below. Incidentally there really are a lot of people from other countries working, often quite legally, in Britain. In Ukraine, foreign nationals are rarely competition. That, however, is basically a detail since both parties publicly claim that they are not against anybody, just for their own. Admittedly it is highly problematical to reconcile their limited concept of “our own” with the pluralistic principles of a democratic society.
Similar, as well as more radical, views gain popularity during any crisis and such victories are to be expected. Where they end is much less predictable, and in Ukraine’s case not just because of other factors, including an absolutely understandable disillusionment with the political forces presently in power.
The authorities both in Ukraine and in the UK speak out against xenophobia and intolerance. In the UK, given legislative backup, government bodies against racism, and a guaranteed scandal over any racist remarks etc from politicians, celebrities or the media, it seems safe to assume that it will be hard for radical groups to substantially increase their support. There are, however, no grounds for complacency and it is quite on the cards that this victory will prove a useful lesson. It’s worth mentioning that in all European countries at present, the authorities are taking the likely increase in tension and aggression in conditions of crisis very seriously.
What will happen in Ukraine is harder to predict also because the reaction by the authorities to clear problems remains all too often at the level of fine-sounding words.
Last week some media outlets reported that the Verkhovna Rada had increased liability for inciting enmity. It soon transpired that a draft law had merely been passed in its first reading, albeit as a basis. Whether from inertia, or for the sake of fine words, reports in the media continued to talk about parliament’s noble intentions to really grapple with hate crimes. It got a mention in foreign papers as well. Hard to deny that right now it’s a pleasant surprise to read anything positive about the Ukrainian authorities.
However the trouble with fine words is that sooner or later they confront reality. This time one won’t have to wait long for the inevitable head-on collision since the draft law, aside from generating its own clashes, does not remove any of the problems in current legislation. The repetition of the phrase “for motives of racial, ethnic or religious intolerance” is hypnotic and does indeed create the impression that the legislators have finally recognized the problem. However, in his legal assessment, Viacheslav Yakubenko points out that Article 67 of the Criminal Code already treats this motivation as an aggravating circumstance for any crime. Nor does he consider the substitution of the word “citizens” by “people” to be a fundamental point since the Prosecutor has never refused to initiate a criminal investigation under Article 161 due to the citizenship of the victim.
Perhaps it would be better to consider just why it is that the law is virtually not applied. Yakubenko calls Article 161 “deadweight” and with good cause. Yet without this article, efforts to combat the most dangerous demonstrations of primitivism remain exhortations on a par with “Be tolerant!”
It is not only Ukrainian human rights groups which have pointed to problems with the application of Article 161. In its Third Report on Ukraine, the European Commission against Racism and Intolerance (ECRI) repeated all the comments from its previous report and clearly viewed without understanding the failure to make real efforts to improve the legislation in question. I would stress that it is always difficult to find an acceptable level of protection against incitement to enmity without excessive restriction of freedom of speech. However it is known that Article 161 is effectively not being applied because it is extremely difficult to prove that the incitement was intentional. It seems hardly necessary in a post-Soviet country to remind readers that not all Soviet tanks “defended” a brother nation, and not all “defenders of freedom” liberated the countries they entered. Against the background of an increase in xenophobia and the undoubtedly greater activity of various radical groups, including those whose aim is clearly to destabilize the country, the stubborn reluctance to change a provision which can at best protect society against total idiots or those who actually confess to their intentions is quite unfathomable.
Incidentally, In Britain they finally introduced two possible conditions: either intentional incitement or the objective likelihood that the words would stir up racial hatred. This is also not ideal but then an ideal solution is by definition precluded due to the need to protect freedom of speech. Nonetheless, inaction in the face of ever more sophisticated methods for pushing a philosophy based on violence and hatred protects nobody and nothing.
Both legislation and all spheres of public life should identify as clearly as possible the acceptable restrictions to freedom of speech. In the current law, instead of clarity there is a mishmash of behaviour, like denigration of national honour and dignity being unwarrantedly punishable, while other actions are perhaps not sufficiently strictly penalized. All of that is purely theoretical of course, which is probably why nobody seems too bothered that according to the law some undoubtedly intolerant, but personal, views, without any calls to violence, are being labelled criminal offences.
The draft law, which has clearly not coped with the task, has been passed as the basis for an amended Code. The initiative needs to be welcomed – and seized as quickly and efficiently as possible in order to prevent it remaining mere words.
It would not hurt, at the same time, to set about resolving some other issues which are standing in the way of real progress. The provisions may be there in the law however whether the law enforcement bodies recognize racial motivation is another matter. In January this year the media reported a terrible murder in Lviv of a Nigerian who was living permanently in Ukraine. Over several weeks, presumably under the pressure of human rights groups and the media, the police reported on the progress or lack of such in the investigation. They stated that although the murderer had not been identified, they could say with certainty that he was not a skinhead. One can only hope that this is not because an eye witness reported that the assailant had a full head of hair. I am not suggesting that the police are hiding anything however we have a situation where the Prosecutor more often than not fails to see racial motivation where not perceiving it requires real effort. The investigation team is often loath to pursue charges under Article 161 because they are difficult to carry through to a just court verdict. On the other hand, many observers, including people from abroad, treat with mistrust statements that unidentified offenders remain unidentified, but absolutely not racist. It is quite likely that in this situation they sometimes imagine racial motives where there were none.
With regard to the issue of freedom, there is heated debate at present over plans to introduce registration of Internet sites. A lot of people are wary of any involvement from the Security Service, or increase in control in any shape or form. As far as control is concerned, I’m afraid I don’t agree, and do not even see justification in introducing only voluntary registration. Yes, I can to a large extent agree with Voltaire and defend people’s right to hold views I find obnoxious. Only Voltaire, excuse me, did not surf the Internet nor was he able to communicate with a large number of people at once, whereas you and I can. And there are plenty of other individuals and groups with very shady motives who also have such scope for their activities. Bombs and other weapons kill more quickly, however words which stir up hatred and convince people that others according to some feature of other are enemies also have potent destructive force which we would be ill-advised to underestimate.
Neither the current law nor the draft law seems to provide real protection from material which incites enmity. In April it will be one year since the publication in the newspaper “Krymskaya Pravda” of the notorious article by Natalya Astakhova entitled “Brought with the wind”. One might have thought that it would not be at all difficult to prove that the author was seeking to stir up animosity towards the Crimean Tatar people. Since August 2008, we have been hearing calls to protect the Crimea and counter forces which would encroach upon Ukraine’s territorial integrity. Hundreds of articles have been written on the information war, and yet the article remains right where it was a year ago. I could name several other cases where something should have been done. And entire websites – those of “Patriot of Ukraine”, “Narodny Ohlyadach” [“People’s Observer”] and others which spread their poison with total impunity. The “Narodny Ohlyadach” site, by the way, although without its own media status, brazenly copies material from other reputable sites, like UNIAN, and uses toxic headlines, illustrations etc to totally distort the information and mislead the reader.
In its Third Report on Ukraine, the ECRH recommends that the Ukrainian authorities in drawing up amendments to the Criminal Code rely on paragraph 18ii of the ECRI General Policy Recommendation N°7. This Recommendation stresses the need to punish intentional calls to violence, hatred and discrimination on condition that these are expressed in public. It is explained that public can be understood as referring to statements made during a neo-Nazi meeting or in an exchange on an Internet forum.
In honesty, this all makes me wary, but then so does a great deal concerning restrictions on rights and liberties. The mechanisms have still not been developed for protecting journalists from pressure brought to bear by various authorities. Yet where is the logic if printed media outlets at least in theory bear liability for untruthful information or incitement to enmity, whereas Internet outlets whose audience is much wider can write whatever they feel like?
The logic seems lacking and I also doubt that the absence of clear requirements and prohibitions gives greater freedom. It more likely increases their vulnerability to arbitrary rule. It is not the need for all media outlets, whether print or electronic, to be subject to registration that should be of concern, but the lack of mechanisms against abuse, as well as a lack of fundamental solidarity. Arbitrary rules work when everybody sits and trembles behind closed doors. Together we really are many.
In my view there simply is no choice. That is, of course, if we still all have in mind democratic choice. You can hear plenty of other statements as to what is to be done, not to mention who is to blame. We are seeing an increase in tension and in activity by movements for whom all unemployment, poverty and uncertainty in the future opens new opportunities for influence.
In such conditions our freedom is always under threat. It seems wise for the media and society to take control and responsibility upon themselves. At a meeting on 26 February, the Inter-departmental Working Group on Combating Xenophobia, Inter-ethnic and Racial Intolerance passed a resolution to approach the National Expert Commission for the Protection of Public Morality (the Commission) and the Ministry of Justice. The idea is that the latter should “submit to the Cabinet of Ministers an agreed proposal on including the Commission among the state bodies which carry out expert assessments for the courts of incitement to ethnic, racial and religious enmity and hatred, denigration of national honour and dignity or offending citizens’ feelings in connection with their religious convictions”.
Trust is clearly a very subjective thing and maybe the reader has only positive thoughts regarding the likely role of Mr Kostytsky and the other members of this Commission in a new field. Or more precisely in a field about which Mr Kostytsky has spoken a great deal of late, but has done nothing, in contrast to the Commission’s active measures on protection from pornography. It is well to remember that the conclusions of the Commission are equally lacking in court expert status for both fields.
It would be useful to organize public discussion with the participation of members of the media, the Internet Association of Ukraine, civic and human rights organizations and all interested parties. Only it’s time to move away from roundtables and achieve a working meeting which would agree and draw up proposals on amendments to the Criminal Code which pertain to issues of freedom of speech. All parts of the relevant provisions which intrude on the inalienable human right to hold and express his or her views should be removed, while real sanctions should be established against those who use the mass media to propagate hatred and violence. This may not necessarily involve criminal liability however the present impunity is a threat not only to those whom individual bigots have decided are their “enemies”. Moreover one cannot expect unlimited patience from international bodies at Ukraine’s failure to comply with its commitments on combating xenophobia.
True freedom brings with it responsibility. Without this words remain a cheap commodity offered for a song by those wishing to use us for their own ends.
Television: will it be controlled in the run-up to the elections?
As reported already, conflict is raging in Dnipropetrovsk between the regional State-owned television company and the local authorities. law enforcement officers have began a financial check, while the television company calls this an attempt by the regional authorities to take the company under their control. The authorities in their turn say that the company is just frightened of what the check will show.
Director of the television company Victoria Shypova, who is also a member of the Regional Council, considers that the problem is in her personal conflict with the Head of the Regional Administration Viktor Bondar
Civic organizations and public parties have become involved, taking one side or the other. On Wednesday communists, socialists and the “Greens”, as well as 8 civic organizations, picketed the Regional Administration with cries of “hands off the channel!”. On the other hand, the local journalists union says that a check by the law enforcement people of a television company run on taxpayers money is reasonable
Most regional media outlets are under the control of the local authorities
According to the Chief Editor of “Telekritika” Natalya Ligachova, the conflict in Dnipropetrovsk is an exception since it is rare for the local authorities to let control over electronic media out of their hands. “The local authorities are, as a rule, headed by the people who have the most influential businesses in their regions and good relations between businesspeople and the authorities. That also applies to television and radio companies. It is usually on an amicable basis. Its no secret to anybody that the regional television companies, radio companies and a large percentage of the printed media are under the control of the local authorities. However this does not always happen via direct influence, more often through the close ties between the owners of those media outlets and the local authorities.”
Level of consciousness among Ukrainian journalists less than dazzling
Sceptics say that a lot of Ukrainian journalists are ready to obligingly work for any Presidential candidate, and its only a question of who pays the most. Natalya Ligachova partly agrees with the view that the problem is not only in politicians pressure, but in the flourishing of so-called “jeansa” – material written for money, yet presented as news. “Ukrainian journalists level of consciousness is not the best, and the changes which took place after the Orange Revolution have not taken root. Media owners and politicians have managed to minimize the influence of journalists and civic organizations that speak of journalism as a mission, and not just a business. A majority of journalists are ready in the first instance to work for pay, for loans, without placing their public mission first. Yet there are exceptions, and not so very isolated.”
Viktor Ukolov, journalist and member of the parliamentary Committee on Freedom of Speech and Information from BYuT (Yulia Tymoshenkos bloc) believes that whoever owns a television channel, the latter do now try to be objective. He believes that there are two political points of view presented and a neutral stance from journalists in covering events. “The best example of this is Channel 5, owned by Petro Poroshenko which regularly has representatives from the Party of the Regions, Our Ukraine – Peoples Self-Defence and BYuT. A similarly neutral position in covering events is taking by the channels of Viktor Pinchuks holding (ICTV, STB and Novy [New] Channel”. He adds that he basically has no criticism of the way events are covered on 1 + 1, but would have some professional comments with regard to the channels Inter and UT-1, saying that he would take a more independent stand in the place of journalists on those channels.
Another member of the Committee, Olena Bondarenko from the Party of the Regions says that politicians are already waging a fierce battle for control over television. She believes this to be a ailment of the growing process and that Ukraine will have to suffer the illness another 10 years at least. While there are business groups trying to maintain their influence, there are also holding groups appearing for whom the media is simply seen as business. You can earn money only by maintaining objectivity during any political setups.
Who should television journalists turn to and what can they count on if they experience pressure or censorship with the approaching presidential elections? Yury Lukanov, Head of the Kyiv Independent Media Trade Union advises them to turn to their trade union if its active in the region. They can also approach the court since after all their rights as a journalist are being violated. There are a number of qualified media lawyers.
At the same time, Ukrainians are more inclined now to trust journalists. According to a Democratic Initiatives Fund survey, in June 2006 46% trusted the media, a year later – 49.5%, and in 2008 – 54%.
From material at www.radiosvoboda.org
Social and economic rights
The Pain of children of migrant workers
In Lviv a second book has been presented in which the children of migrant workers tell of their experiences and feelings. Members of the audience were moved to tears.
The book contains 130 true stories from children whose parents are working abroad and gives a poignant insight into the depth of the problem of the exodus of Ukrainians abroad in search of work.
In order to open the eyes of the authorities to this separation of children from their parents which they are implicated in, the International Institute of Education, Culture and Contact with the Diaspora of the National University “Lviv Polytechnic” [the Institute], with the financial support of the Norwegian Embassy in Ukraine, produced this second book in the cycle “Children of Migrants about themselves”.
“Ive grown up, Mama. Have you noticed? Ive learned a great many things in my life. Cruelty also…”
Kateryna Lazarchuk, 17, Khmelnytsky region.
Its not possible to give an exact figure for the number of Ukrainians whove got abroad. Estimates range from 1.5 to 7 million. You can understand parents who want to provide their children with all that is necessary and ensure a decent future for them. It is the children who help us see this experience through their eyes in their moving accounts.
The difficult task of compiling this anthology has been undertaken by the Director of the Institute Iryna Klyuchkovska.
Norways Ambassador Olaf Berstad stresses: “Such important issues as emigration are mostly left for discussion between bureaucrats and politicians. This book returns the issue to real life”.
The first book in the series was presented in December last year as the result of a competition of works by children and young adults.
Head of the competition jury, laureate of the Shevchenko Prize, Ihro Kalynets says that he was stunned at the number and variety of creative works and how they presented problems of labour migration. There were works in all possible genres from fairytales and short novels, and plays to interviews, personal reflections and attempts at social analysis. All are moving and make it impossible to remain indifferent to the problems of these children, who have parents, but are deprived of parental warmth.
The presentation was attended by members of embassies and consulates of many European countries, academics, members of the city authorities, students, representatives of civic organizations. And, most importantly, by the children themselves who received books and read poignant excerpts from their writing.
“Life in a foreign land is a vain attempt to sprinkle sugar on poison”
Ivanna Dashko, 17, Portugal
In their stories, the children reveal all the burning issues of society, of socio-economic problems, unemployment, the inaction of the authorities, the need for parents to be there day by day, drunkenness, smoking, drug addiction, psychological problems – the whole range of problems of guilt, loneliness, depression, fears and terrible dreams.
The Institute has run roundtables in different parts of the country aimed at creating state mechanisms for enabling migrant workers to return and a strategy for proper social protection for them and their children. They have also begun a new project: “Parents of migrants to their children.”
Based on information here http://zik.com.ua/ua/news/2009/03/25/174673
The right to health care
Your health – and ours
Ukraine vs. Children: Whose side is the court on?
Ukraines laws do not help children to resolve their problems via the courts. Quite the contrary: the courts simply multiply these problems, deeply traumatizing children who are already in a difficult situation. International agreements which Ukraine has signed guarantee Ukrainian children a large range of rights however domestic legislation does not provide the mechanisms for exercising these rights.
This is the conclusion reached by the Kharkiv “Civic Alternative Foundation” when analyzing Ukrainian legislation.
As reported already, in December last year the Foundation checked five courts in Kharkiv and the Kharkiv region for their “child-friendliness”, i.e. how adapted they were to meet the specific needs of children who in some capacity needed to appear in court. The results of that study were less than cheering.
The author spoke with Hanna Khristova, specialist for the Civic Alternative Foundation and Assistant Professor of Law at that Yaroslav the Wise National Law Academy.
In civil proceedings cases involving children are family disputes, deciding where the chill will live, the role of one of the parents in the childs upbringing, deprivation or reinstatement of parental rights, organizing parental visits, management by parents of a childs property, annulment of adoption, etc. Clearly in such situations the child is already vulnerable and needs help. However with the law as it stands, there is no counting on such assistance. Quite the opposite, the conditions which a child ends up in during court proceedings deepen the trauma.
International standards stipulate that a child in court is entitled to be informed in accessible language about the course of the proceedings, about the ruling and its legal consequences; to choose a legal representative and make an application; to express their views at their own wish, and not only to be questioned as a witness. Yet Ms Khrystova believes that domestic legislation does not provide sufficient procedures to guarantee such rights in civil proceedings.
Childrens rights as regards court procedures are set down in the European Convention on the Exercise of the Rights of the Child. Ukrainian judges are not very familiar with the document and quite often mix it up with the European Convention on Human Rights. The Convention on the Exercise of the Rights of the Child is much more recent (1996) and more specific in the list of procedures which regulate the rights of the child. It includes the procedural rights of a child taking part in court proceedings. Ukraine ratified the Convention in 2006, however the necessary amendments to legislation have still not been made and the majority of judges dont even know it exists.
The process of bringing legislation into line with the Convention got off the ground only very recently with the adoption in its first reading by the Verkhovna Rada in February of a draft law “On amendments to some legislative acts regarding safeguarding childrens rights”. Ms Khrystova gives a positive assessment of the draft law and considers that it has taken into account the majority of factors needed for the proper implementation of the Convention.
Problems are not only in the court system. A system of juvenile justice is badly needed. Ms Khrystova believes that juvenile justice at present has been reduced to the context of criminal justice, providing only legislative regulation for childrens participation in criminal proceedings. Childrens procedural rights in civil proceedings are not safeguarded although most cases are specifically in this area. Legislation (Article 182 of the Civil Procedure Code) only envisages procedure for questioning a young child or underage witness. And even that is carried out very rarely. In the absence of clear procedure, judges are loath to complicate their lives and tend to get information needed for passing judgment from other sources. From the conclusions of care bodies, for example, although it is no secret that these conclusions are most often based on an emotional assessment of the situation and not infrequently run counter to the childs best interests. They are simply easier and make no demands on the judge to sensitively question a child, taking into account the childs age, finding special premises for the child to feel safe and at ease, and ensuring the presence of a psychologist.
Yet a child is often not a witness but a party to the court proceedings and in such cases the article of the Civil Procedure Code is not even applicable, with the judge having no legal procedure available for questioning the child. It turns out that the rights of the child are not safeguarded via the relevant procedure which effectively presents their being exercised. In such cases few judges question a child and rely on information received from their legal representatives. Good if the person is definitely acting in the childs interests yet it is not possible to hear the childs own view.
A comprehensive approach is needed to change the situation. The Civic Initiative Foundation sees three main elements for achieving improvement. Judges need to be made aware of the existence and content of the European Convention on the Exercise of the Rights of the Child. This is a minimum requirement which will not demand great expenditure from the state and will make a significant improvement possible. Parliament needs as a matter of urgency to eliminate the gaps in legislation and devote more attention to the training of judges who examine cases involving children.
Nationality does not predispose a person to crime
Human Rights Aide to the Head of the Ministry of Internal Affairs [MIA] for the Cherkasy region, Volodomyr Batchaev speaks about cooperation between the police and the public, about law enforcement officers “sins” and about prejudice in society towards the Roma.
You have been Human Rights Aide for almost a year – what changes have taken place in the work of the police during that time?
A year ago the vast majority of heads of district police stations would not have imagined that their temporary holding facilities [ITT] would face checks with these from representatives of civic and human rights organizations. This is now regular practice. The Public Council working in the region must not be seen as a foreign body which the organism rejects, but needs to be introduced step by step. We need to be seen not as enemies or as yet another controlling body, but as consultants, assistants. I dont have the right to impose disciplinary penalties - I can only identify infringements and inform the head of the regional police about them.
Asked about possible conflict with the management of the Cherkasy police, Mr. Batchaev said that thus far there has been no such problems and that the head of the regions police Mykola Kapliy expressed his principled position of not allowing human rights violations and observing the law. He added that this had been confirmed in practice.
“Last year I initiated 48 checks on the basis of appeals made by members of the public, infringements identified by mobile groups, etc. 25 police officers were held to answer for human rights infringements as a result, these including high-level managers.
For example, during a check of the Mankivska District Police Station, the mobile group found that conditions did not meet basic norms: the cells were dirty, the beds old, there was no water and there were often problems with providing meals. We sent a letter to the Head of the MIA Department and the ITT is now closed while repairs are being carried out. The Head of the ITT was penalized for not carrying out his duties in a proper fashion.
One painful issue involves human rights violations during detention or remand in custody. Of the 25 officers held to account over violations, more than half were punished specifically for these types of offences. The most flagrant example was a case with the district police inspector of a Cherkasy district station who was searching for local vandals. Somebody pointed to two young lads whom he detained towards evening. Seemingly he was so tired that he couldnt question them and placed them in a cell of 2 by 2 with a bench and left them there until morning. Then he got caught up on something and the lads sat there for almost 24 hours. None of the procedures which are mandatory in detaining people were observed. In my opinion this was an extremely serious violation and we all need to be safeguarded from unlawful deprivation of liberty. The district inspector received a warning, while the officer who left the lads over night without any documents got a serious reprimand.
You devote a lot of attention to the Roma minority. Do they really need defence?
Definitely. A negative view of the Roma has developed over a long period. As well as a romantic image of gypsy life, people have the fixed impression that each Roma is a criminal. Clearly there are some reasons for this, and there are specific types of crimes like fortune telling with an element of fraud, tricking people out of their money which people from that ethnic group take part in, yet the Universal Declaration of Human Rights clearly stipulates that no person should be persecuted on an ethnic, racial or any other basis.
In talking with people from the Roma community, I have on many occasions heard complaints of unlawful behaviour by police officers caused specifically by such stereotypes. Unfortunately the vast majority of police officers do assume that each Roma is a potential offender. They are constantly stopped, checked, searched, have their fingerprints taken, and special databases are created. This attitude outrages the Roma many of whom are law abiding citizens. The Roma community in the Cherkasy region is not large – around 1300 people however all their members fight for their rights. There is even a civic organization “Romany Rota” whose leader is the well-known writer Voldomyr Bambula. We have received some understanding: the police will not violate their rights as a national minority, however nobody will protect gypsies involved in criminal activities. At my initiative, the Head of the MIA Department for the region, Mykola Kapliy, signed an instruction regulating work with representatives of the Roman community. These requirements were passed on to each police officer.
Awareness needs to be changed in the first instance through educational work and specific examples. We explained to police officers about such concepts as hate speech. A seminar was recently given by the Roma organization “Cheriki” and attended by nearly 20 officers from different police services and representatives of several Roma communities.
The police officers were wary towards accounts by the Roma of violations of their rights, but even exchanged phone numbers towards the end and agreed to work together. After the meeting, Volodymyr Bambula gathered the district leaders of the community and called on them to reject any unlawful behaviour at least with regard to children and pensioners.
Its obviously too early to talk of any global changes and we cant hope that the situation will improve overnight. .. I can recall my very interesting case. Mykolaiv investigative officers once arrived to arrest a suspect, who was trying to get a job with a Roma businessman. The person in question saw men in uniform and fled. The police accused the employer of hiding the man saying that the businessman was just the same as the purported offender since he was a gypsy. The officers left and 3 days later the suspect returned and was detained by the Roman community and handed over to the police. The Head of the CID then even expressed his gratitude to the Roma.
The creation of a negative image of the Roma in society is to some extent “thanks to” our media At one stage Cherkasy newspapers teemed with headlines about Roma people committing crimes. When I suggested they cover the case mentioned above they refused – not interesting.
Volodomyr Batchaev was born in 1963 in Moscow. He is an engineer by profession, however from 1966 to 2008 worked in Internal Affairs bodies, with direct involvement in the area of control over human rights observance in the work of the police. Since 23 April 2008 he has held his present position.
Roma community – the most discriminated against minority in Ukraine
The Council of Europes annual report talks of pressure being placed on Roma people by law enforcement officers and the local authorities, as well as the negative stereotype created by the press. A project being run by the Roma Womens Fund “Chirikili” with the support of the National Endowment for Democracy (NED) is aimed at changing the attitude of the State and society to Roma people.
Valentina Zolotarenko is a typical member of the middle class. Both she and her husband have well-paid jobs and live in a prestigious area of the capital. Their children are at secondary school. The only thing that is different is that she is a Roma. She is proud of this and can tell lots of interesting things about the history of the Roma, their life in modern Ukraine.
However in the last few days she and her Ukrainian woman friend ended up in an unpleasant situation.
“We had visited an exhibition of Maria Prymachenkos work, walked around the Kyiv Lavra and decided to go to Khreschatyk St, to one of the “Argo” network shops. We tried to go into the “Orsei” shop but were stopped by the security guard who told us to leave, saying that he had orders not to allow Gypsies into the shop.
In the shop network “Argo” which includes “Orsei” the incident was explained as follows: “I dont know whether there was such an instruction however these people are constantly stealing customers wallets – you see it on the security cameras”.
Extremely difficult to break down stereotypes
Valentina Zolotarenko believes that the stereotype against the Roma was at play. They are presented as card-players, thieves or drug-dealers.
The Head of the NED Project Serhiy Reshetov comments that it is very hard to overcome stereotypes, but it is possible. You need to carry out information and educational work with representatives of the authorities, the law enforcement bodies, the public and the media, and this is what their project is focused on.
“Civic organizations should be involved in this, carry out training seminars not only with Roma communities, teach them how to defend their rights, and also draw the media in to help. If these three strong forces – the authorities, civic organizations and the press – unite, I think that this powerful alliance can move the problem on from where it is now”.
President of the “Chirikli” Fund Zemfira Kondur believes that American and European experience at breaking down negative stereotypes about the Roman, the possibility of providing accurate information to the Ukrainian public and those in power about the Roma will reduce anti-Roma sentiments. She says that otherwise all the words about Ukraines European choice and democratic development will remain mere words.
News from the CIS countries
St. Petersburg court again decides in Memorials favour
On 20 March the Dzherzhynsky District Court in St Petersburg concluded its repeat review of the claim brought by the research and information centre “Memorial” against the unlawfulness of the decision to search the Centres office and the violations of the Centres rights during this search on 4 December 2008. As reported here, during the search hard disks were taken away which contain invaluable historical information which the Memorial Centre had been collecting over 20 years.
On first ruling by the Dzherzhynsky District Court was on 20 January. It also ruled in favour of Memorial and specifically noted that there had been a violation since the lawyer called by the organization had not been allowed into the office while the search was taking place.
According to the courts ruling all material removed was supposed to returned to the Centre, however the Prosecutor appealed against the ruling in the city court which ordered that the case be returned for a second review. The court claimed that the authority of the lawyer who came that day had not been sufficiently examined by the first instance court.
The ruling today, 20 March, effectively reiterated the finding of that first ruling. This had found that the search was warranted and therefore legal, however that the failure to allow the lawyer to be present had been unlawful.
It supplemented the ruling by adding that the refusal to allow Tatyana Kosinova, representative of the Board and member of the Council of Founders of the Memorial Centre had been a similar infringement.
Show trials past and present
On this day, 5 March 1953, the news was released that Joseph Stalin was dead. People rejoiced of course, but they also remembered their relatives and all the millions whose lives were destroyed by the bloody dictator and the regime which had enabled him to gain such control
Stalins death meant that the latest show trial – over the “case of the doctors”, and the potentially large-scale anti-Semitic campaign being planned were curtailed.
After the XX Congress there seemed some cause for hope. In 1991 also.
In 2009 there is seldom even mention of those presently serving sentences on absurd charges: Igor Sutyagin, Valentin Danilov, Igor Reshetin and others. The new political prisoners the world prefers to ignore.
Another show trial has begun in Moscow of Mikhail Khodorkovsky and Platon Lebedev. In an article entitled “Khodorkovsky-show”, Zoya Svetova writes:
“If in the first case, it was purely theoretically conceivable that Khodorkovsky could have in some way broken the law, this time any unbiased person will find it much harder to believe the deranged charges that, for example all the profits from the sale of oil went not to YUKOS but directly into Khodorkovsky and Lebedevs pockets.”
On 4 March it also became know that the application for early conditional release of Svetlana Bakhmina has been passed to Moscow. Svetlana Bakhmina, a former YUKOS lawyer, was sentenced to 6 and a half years imprisonment on the usual charges used against YUKOS employees – tax evasion and embezzlement. Whether or not there are any grounds for the conviction, Ms Bakhmina has been eligible for early release since 7 March 2008. She also gave birth to a daughter, her third child, in late November last year. The daughter is spending her first months in prison.
This is while Yury Budanov, who probably raped and certainly murdered, a young Chechen woman – Elsa Kungaeva, was given early release in January this year despite the appeal brought on behalf of the victims family by Stanislav Markelov. Markelov was gunned down, together with journalist Anastasia Barburova on 19 January just after a press conference in which the lawyer and human rights defender declared his intention to pursue this travesty of justice further.
Svetlana Bakhmina remains imprisoned. The Russian newspaper “Vedomosti” reported on Thursday that an official from the Presidents Administration, on condition that his name was not revealed, had told them that pressure is being brought to bear on Bakhmina to force her to give testimony in the new show trial against Khodorkovsky and Lebedev.
It should be mentioned that another YUKOS victim, Vasily Aleksanian, who was being held in a remand centre despite being gravely ill with two potentially fatal diseases, has accused the authorities of linking his release with agreement to testimony against Khodorkovsky. Vasily Aleksanian refused.
The charges in this latest show trial are also absurd. The fact that they are being laid nonetheless may reflect a cynical view that the world will again do nothing. It is vital that those who believe this are proven wrong.