“Prava Ludiny” (human rights) monthly bulletin, 2010, #04
Constitutional Dead End Against torture and ill-treatment
Human Rights in Ukraine: Chronic Ills and New Challenges Privacy
The introduction of named rail tickets is an unwarranted restriction of freedom Access to information
Some legal issues regarding the work of the Security Service of Ukraine Law enforcement agencies
President sends a complaint about the MIA … to the MIA Human rights concerns expressed on President’s 50th day in office How the Minister of Internal Affairs improves human rights monitoring
Politics and human rights
Constitutional Dead End
“Where the rule of law is concerned it is not enough to help states to adopt democratic constitutions. There is also a need to help them to ensure that these are implemented”. Not my words, although I wholeheartedly agree. They can be found on the site of the European Commission for Democracy through Law (the Venice Commission).
Must we assume different interpretation of the word “implemented” to explain the silence of Euro-Atlantic diplomatic representations, EU, PACE and European Parliament representatives to the events of the last weeks in Ukraine?
These events began with amendments added to the Verkhovna Rada Regulations and passed within a week of their first reading on 4 March. The changes, making it possible to form a coalition not only from factions, but from individual deputies, were condemned from the outset by constitutional law specialists like Ihor Koliushko who pointed to the clear clash with Article 83 of the Constitution and stated: “The majority of factions have to take the decision to form a coalition. The Constitution envisages no other means of creating a coalition”. (http://khpg.org.ua/en/index.php?id=1267783592 )
It is important to note that there are serious and constitutionally backed objections, and yet the amendments to the Regulations were passed by a small parliamentary majority on 9 March and signed into law by the President the very next day. This step by the President would appear to have been after a meeting with ambassadors of EU and G8 countries at which only the UK Ambassador expressed any objection to the signing by the Guarantor of Ukraine’s Constitution of a law which breaches that Constitution.
This, we would stress, was no small matter, neither in its implications for the rule of law nor in its practical consequences. A new government was formed immediately, made up in the main of the Party of the Regions members, and members of this same party have been appointed to many vital posts in government, the judiciary and the media. Serious human rights concerns have already been raised, as well as widespread protest over educational changes likely to bring back corrupt practice and carried out by a person whose negative remarks about Western Ukrainians, and Ukrainian history, are extraordinarily inappropriate for a person holding such office. Since political experts have openly spoken of a de facto change in Ukraine’s political system – from parliamentary-presidential to presidential rule, and given the previous scrutiny by European structures of Ukraine’s affairs, these including the European Parliament’s resolution in January, the silence now is baffling.
From media reports, since there have been no responses from the ambassadors to our letters, it seems that the only proviso was that the Constitutional Court should be asked for its opinion. It is near inconceivable that the ambassadors were unaware that the same judges of the Constitutional Court had handed down a judgment in September 2008 on this same issue, stating unequivocally that only factions form a coalition. One must therefore agree with Andreas Umland when he writes: “Mr Yanukovych’s assurance to the Ukrainian public and the Western ambassadors that he would follow the court’s ruling always looked empty - the relevant 2008 ruling was already in place, what he was asking in fact is for the judges to overturn their previous position.”
This is precisely what the Constitutional Court did last week seriously undermining any confidence from the public in this highest judicial body in the country. It would be most unethical, but also redundant, to seek proof of bribery to explain the new judgment. As openly discussed in the media, the judges are under enormous pressure from those under whose quotas they are appointed. The highly respected Razumkov Centre describes in their statement mechanisms of pressure from Ukrainian politicians. These included the flagrant infringement of consulting chamber confidentiality, with the judgment effectively leaked to the media and announced by the Deputy Prime Minister before it had been formally made public. It is not inconceivable that this was not primarily aimed at pressure, but at testing the water. After all, the clear implication from the western ambassadors, Daniel Russell, Deputy Aide on Europe and Eurasia to the US Secretary of State and the European Parliament delegation headed by Romanian MEP Adrian Severin during their 26 March meeting with the President was that they simply required the gloss of a Constitutional Court stamp of approval.
Forget the substance?
It would be difficult to forget the astounding argumentation presented in the Court’s judgment, not to speak of the entirely clear message from the press conference given by Head of the Court, Andriy Stryzhak.
The Constitutional Court’s judgment in September 2008 which stated that only factions, not individuals, may form a coalition, also found the Verkhovna Rada Regulations unconstitutional since they had been passed by Cabinet of Ministers resolution, not as a law. The Constitution and the 2008 judgment state that “the coalition of deputy factions is made up of deputy factions which, on the basis of the election results and on agreed political positions, have formed a coalition of deputy factions.”
The argument now is that the Court judgment from September 2008 was correct then because the Regulations had not been passed. Now that there are regulations, and even though there is a clear discrepancy between the Regulations and the Constitution, the Regulations, so to speak, win out.
There are two problems here. One is the clear absurdity of any Constitutional Court Judgment finding that a law passed by a simple majority of the Verkhovna Rada takes precedence over the Constitution of the land. The second is that the Regulations do not only conflict with the Constitution, they were passed in knowing contravention of the Constitutional Court’s clear and entirely unambiguous statement from 2008.
The comments from the Head of the Constitutional Court, Mr Stryzhak during the press conference on 8 April received wide coverage in the media with all reports only differing in degree of detail. There have also been no complaints that his words were distorted.
Mr Stryzhak told journalists that the decision of the Constitutional Court to allow individual National Deputies to join the parliamentary coalition had been taken on the basis of the legal situation as it had emerged. He stated that the previous judgment from September 2008 remained in force, however in view of the passing of the law on the Regulations, the legal situation had changed.
He did not see fit to explain how the legal situation could have changed in a constitutional manner if the Law on the Regulations had been passed and signed into law by the President in breach not only of the Constitution, but of the still valid judgment from September 2008.
Mr Stryzhak also expressed the hope that the judgment would bring benefit to society since the Constitutional Court had taken its decision specifically on the basis of such moral-social and legal positions.
“The Constitutional Court of Ukraine did not examine this case as a dispute, as a constitutional-legal conflict, but was guided by the real processes of life which cannot always be read in books or in laws”.
The last two paragraphs, quoted widely, indicate a truly staggering rift between the Head of the Constitutional Court’s view of his fellow judges’ role and the rule of law as understood in any law-based society.
One wonders whether this position, presented most openly to the Ukrainian public, is one that those ambassadors, Daniel Russell and the European Parliament Delegation led by A. Severin would wish to uphold. Surely any judge, and most certainly a member of the Constitutional Court, is there to ensure that the law is upheld, not adapted to comply with realpolitik considerations?
Mr Stryzak also asserted that “a deputy is not a serf. He after all expresses the will not of a political party. Not of a political force. But the will of the people”.
One could fully endorse this view were it not for one major sticking point. Under the present electoral system, established by the constitutional amendments of December 2004, voters only vote for factions, not for individuals. Hence the logic of it being factions whose members in total make up a majority (226 National Deputies), who may form a coalition government. By allowing a coalition to be formed, not on the basis of the electoral spread of votes between factions, but by individuals who have, for whatever reason, abandoned the political force which they were voted into parliament as members of makes a travesty of the electoral will of the people.
In a country which only recently gained independence and began freeing itself of the Soviet legacy, it would be well to broaden the scope of the above-mentioned words from the Venice Commission. It is vital also to ensure that democratic mechanisms are implemented and do not turn into mere words.
The words at present, one might add, are entirely cynical. Those in the governing coalition make no real effort to conceal the likely way they will increase their numbers. Unlike in 2007-2008, they are careful not to speak too openly of gaining a constitutional majority (300 votes) through enticing deputies from the opposition, however this cannot be excluded. Individual turncoats also make no pretence of ideological differences, and the press is absolutely open in assuming that money or other benefits are involved. With important areas of governance and the media now effectively under the ruling coalition’s control, the number of people prepared to openly protest over infringements and corruption will dwindle, much as it did in neighbouring Russia.
While the media still reports dissent and openly discusses the likely levers of influence on the Constitutional Court and plans of those in power, it is as brutally cynical about the motives of western governments and European institutions.
Surely the main lesson we are all obliged to learn from the tragic legacy of the past century is that neither the individual’s rights and dignity nor those of entire countries may be treated as commodities, however compelling may seem geopolitical, economic or other arguments. For those wishing to see Ukraine’s development as a law-based democracy, the lessons of the last month, including the message received from western partners, can be called nothing less than disastrous. Clearly Ukraine must take responsibility for its own future however encouragement to provide pitifully unconvincing gloss rather than substance can only jeopardize, not promote Ukraine’s democratic progress.
Against torture and ill-treatment
Human Rights in Ukraine: Chronic Ills and New Challenges
According to a study carried out by the Democratic Initiatives Foundation as part of their “Ukrainian Democratic Barometer” project, Ukrainians are convinced of the real existence in Ukraine of the right to form political parties; to create civic associations; to freedom of speech; equality of minorities and of men and women.
They considered the following to be non-existent: the right to a decent standard of living; the right to elect those in power; the right to fair court proceedings; the right to be protected from arbitrariness on the part of the authorities.
75 % are convinced that there is no equality before the law, while only 10 % believe that there is. 79% believe that those with money have an advantage before the law, 73% - those with power.
The study also included an expert assessment given by the Ukrainian Helsinki Human Rights Union (Volodymyr Yavorsky) and the Kharkiv Human Rights Group (Yevhen Zakharov). They assessed the human rights situation in Ukraine at 2.2 on a scale of 1 to 5. They consider the worst situation to be with observance of the right to life; protection from torture and observance of economic and cultural rights. They also point to a low level of protection for socially vulnerable groups (the disabled, the mentally ill, prisoners and others).
Protection and observance of human rights
The overall rating, as mentioned, for 2009 was 2.2 (unless otherwise indicated, on a scale of 1 – 5), with the first 6 months – 2.3 and from July to December – 2.10.
The human rights situation in 2009 is seen as variegated, with the political crisis making it impossible to carry out needed constitutional, judicial, administrative reform, reform to the criminal justice system, etc. The battle between political opponents led to any issue being politicized and each step of the authorities, draft law or appointment only viewed from the point of view of their possible advantage in the political struggle. The latter had a highly detrimental effect on governance of the State apparatus and led to an intensification of illegal actions by local authorities which virtually stopped paying heed to central government. An example of this was the closure in Kharkiv of the city tuberculosis clinic with 675 beds, despite opposition from the central authorities. All of this was exacerbated by the economic crisis which hit the poorest and middle class hardest.
The situation with economic and social rights was inevitably going to suffer, especially since protecting these rights was not a priority for the regime. As in 2007 and 2008, the government suspended the exercising of various economic and social rights in the 2009 Budget despite the Constitutional Court having again ruled this to be unconstitutional.
On the other hand the presence of political competition and a certain degree of freedom of speech positively affected the level of self-awareness of society which matured and became better able to think clearly. Human rights organizations became stronger and forced the authorities to take their assessments and proposals into account. In some areas they achieved certain changes for the better. One can cite dozens of examples of successful action by human rights groups however these successes drown in a huge sea of human rights violations. As a result, there remains a general assessment by the population of their position as being unprotected. Human rights organizations have gained sufficient capacity to force the State to bear their position in mind, but far from enough to change the overall attitude of the State to the issue of human rights in order to teach them to respect these rights
There was certain progress in the Ministry of internal Affairs [MIA], with the new Department for the Monitoring of Human Rights in the Work of the Police, created in 2008 working dynamically and achieving results. Of course this could not fundamentally resolve the human rights problems within the MIA which are the most difficult in the human rights sphere – arbitrary detentions and arrests, unlawful violence in order to extract confessions, including torture, etc. Yet the work of the new Department had proved highly instrumental in identifying those violations, making information about them known, protecting the victims of violations, and studying the conditions which foster such violations. The Department for the Monitoring of Human Rights in the Work of the Police, the Public Councils on Human Rights, and the mobile groups for monitoring observance of rights and liberties were creating a new single system of departmental and public control over the observance of rights in the work of police stations.
This interview clearly preceded recent events. Despite the undoubted success of the Department, the new leadership of the MIA in March 2010 dissolved it, and in April announced plans to “create” public councils with at least the name of the “well-known human rights activist” arousing well-founded doubts about the purpose of this move. [see, for example, http://khpg.org.ua/en/index.php?id=1271864041 – translator].
We would note that in comparison with that new State human rights institution, the analytical and information activities of another national human rights institution which has been functioning for 10 years already – the Human Rights Ombudsperson – leaves a great deal to be desired. There have only been four reports on the human rights situation in Ukraine over 10 years, even though according to the law the Ombudsperson should present a report each year. .
Unfortunately, the overview of positive trends in the human rights sphere can be ended on that, with the other trends being entirely negative. One should first and foremost mention the increasing lack of respect by political forces to the justice system and the principles of the rule of law; efforts to use the courts for political advantage, and unlawful actions with regard to the courts in cases when rulings passed have run counter to political interests. What kind of court reform, what kind of judicial independence can one expect in such circumstances? While there continues to be such an attitude by politicians to the court, one cannot speak of real protection by the State of human rights. In the absence of a strong and independent judiciary, protection of human rights remains unreal. It is not surprising that for several years now parliament has not passed laws aimed at implementing the Concept Strategy for improving court proceedings to ensure fair trials.
There remains a great problem with enforcement of court rulings: each year over 70% of rulings in civil cases are not enforced. More than 80% of the judgment s handed down each year by the European Court of Human Rights concern violations of Article 6 § 1 of the European Convention specifically over non-enforcement of court rulings, including on rulings regarding wages arrears or other payments by State or other enterprises and institutions. Nor in five years has the State done anything to change the procedure to pay debts and give people the money they have earned.
In 2009 the National Expert Commission for the Protection of Public Morality continued to expand its activities. In our view its decisions were unwarranted and disproportionate intrusion in freedom of expression, and such intrusions did not serve any urgent public need.
The situation in the State Department for the Execution of Sentences which is assiduously holding on to its closed nature and impunity remains stably bad. This is the single State body in Ukraine which has virtually not changed over the years of independence and remains unreformed and a total anachronism.
Other law enforcement agencies also require reform, especially the prosecutor’s office, which has powers which lead to a conflict of interests and which carries out general overseeing which is not in keeping with its function.
Flagrant violations of property rights, continued in 2008, these including unlawful seizures of land or other property in spite of the law, the wishes and decisions of local territorial communities or owners. Where the heads of settlement councils resisted unlawful seizures of land, criminal investigations were trumped up against them, as for example the case of Volodymyr Marunyak and other village heads in the Kherson region.
The human rights situation continued to worsen in the second half of 2009. The political struggle intensified on the eve of the presidential elections, and human rights finally ceased to be of any priority for either those in power or the opposition. Dangerous trends intensified, such as violations of the Constitution and prioritizing of political expediency over the principles of law; more and more secrecy with information and lack of transparency of the actions of the authorities with these covering up corrupt dealings.; contempt for the judiciary and the justice system as a whole; attempts by the authorities to use the judiciary in their own interests and its being included in political battles, leading to a serious weakening of the judiciary. There were also attempts to use the law enforcement bodies to fight opponents resulting in their politicization.
The situation as regards socio-economic rights continued to worsen both because of the economic crisis and the inability of the authorities and bodies of local self-government to carry out their duties properly. This all resulted in an ever-widening gulf between rich and poor.
The lack of information openness, transparency and accountability of the authorities to the public, the unwarranted classifying of information and restrictions on information are perhaps the most dangerous violations of human rights for the country’s future.
In the second half of 2009 it became clear that most local councils and their executive bodies had in breach of the law not published their budgets for 2009, detailed reports on how the 2008 budgets were spent, were hiding information about allocation of land, general plans for city development, etc.
A strong and independent judiciary is the main prerequisite for observance of human rights and fundamental freedoms. The lack of respect for the justice system, mechanisms of support of the court’s independence and authority renders protection of human rights illusory.
At the end of 2009 respect for the judiciary fell to a new low since politicians, eager to ensure control over the courts before the elections dragged them into an unseemly battle for powers, positions, court stamps, etc. In the second half of 2009 the Supreme Court demonstrated contempt for the justice system when it ignored a European Court of Human Rights Judgment in the case of Yaremenko v. Ukraine. Yaremenko, under torture, confessed to a murder which he hadn’t committed. The Court in Strasbourg found serious violations of Article 6 of the Convention, the right to a fair trial.
The use of torture and other forms of ill-treatment, as well as arbitrary detention and arrests by law enforcement bodies remain systemic violations in Ukraine. The lack of effective examination by the Prosecutor, found in many European Court of Human Rights judgments, as well as the lack of proper court monitoring over how confessions and information are obtained, court powers to exclude evidence received through torture and ill-treatment all create an atmosphere of impunity which make torture and ill-treatment routine practice.
According to a sociological study carried out by the Kharkiv Human Rights Group together with the Kharkiv Institute for Social Research, around 600 thousand people living in Ukraine may be subjected to various forms of unlawful violence.
In August 2009 a new Head of the State Department for the Execution of Sentences was appointed. Oleksandr Halinsky publicly stated that he planned to work in cooperation with civic human rights organizations. He even dismissed several penal administration heads at the demand of those organizations for beating prisoners. On 29 September public hearings were held on prisoners’ rights, these highlighting a number of problems in the area.
[Mr Halinsky was dismissed by the new government in March 2010 – translator].
During the second half of 2009 the influence of the Department for the Monitoring of Human Rights in the Work of the Police was considerable. Hundreds of people received help from its staff in reinstating their violated rights. The Department became a certain instrument of prevention of human rights abuse in the MIA. It was thanks to its activities on monitoring police holding facilities that conditions were improved in these facilities, as confirmed both by those held there and by specialists.
Aside from a few exceptions there is no systematic policy at all on improving observance of rights and freedoms in the country. The efforts of human rights organizations, of particular departments and civil servants within the MIA and Ministry of Justice, the National Commission for the Strengthening of Democracy and the Rule of Law to improve the situation have resulted in some progress, however the political crisis, the general attitude of political forces to human rights as to something of lesser importance and insignificant when set against political expediency, prevent systemic improvements to the situation.
Expert assessments on a scale from 1 to 5
1. Legal provisions for human rights
Average for 2009: 2.30
This remains inadequate, with many provisions not complying with international human rights standards, and there being a lack of effective procedural norms to establish proper procedure for exercising many rights.
The greatest problems in legislation are linked with the activities of the law enforcement agencies and the courts.
There is still no legislative concept of discrimination, let alone mechanisms for fighting it.
Legislation on civic associations does not comply with Article 11 of the European Convention.
A number of draft laws limiting human rights were considered by parliament, including one on peaceful assembly. Necessary draft laws on civic associations, legal aid and judicial reform were not reviewed. An extremely dangerous law was passed on appropriation of land for public needs.
2. Observance of laws concerning human rights: Average was 1.90 (2.0 in the first half, 1.80 in the second)
A fundamental problem is enforcement of legislation and mechanisms for this. Legislation is disregarded at all levels of power. This is linked with unclear legal regulation and the lack of clear procedure for exercising rights. To a large extent the problem likes in the lack of effective mechanisms to force the authorities to implement legislation.
As mentioned above, failure to enforce court rulings is a major problem.
During the second half of 2009 in connection with the elections and the flu epidemic, public conflicts sharpened this leading to some increase in rights violations.
3. Effectiveness of the activities of State bodies and specialized institutions aimed at human rights defence.
Law enforcement agencies function as a punitive system with an inquisition type of criminal process and systemic violations of rights.
Fairly weak powers and also passiveness of the Human Rights Ombudsperson make this institution ineffective.
Civic organizations are hampered by an outdated law on civic associations, prohibiting a lot of activity.
3. The highest rating was received by the Department for the Monitoring of Human Rights in the Work of the Police – 3.50.
The lowest – the National Expert Commission for the Protection of Public Morality 1.25.
Other low ratings were 1.50 for the Prosecutor and 1.50 for the MIA.
4. Political rights and freedoms (freedom of peaceful gatherings, of association, the right to take part in governance, to elect and be elected)
Average 2.80 (3.00 in the first half of the year, 2.60 in the second)
There is a reasonably high level of political freedom, with no persecution on political grounds.
However in autumn 2009 the Cabinet of Ministers changed the rules for forming public councils under state bodies, making it effectively impossible to create these. This has significantly reduced the ability of NGOs and the citizens to have impact on state policy.
5. Freedom of thought, conscience and religion, freedom of views, expression, freedom of information
Average: 2.32 (first half 2.50, second half – 2.15)
The situation with freedom of peaceful assembly is reasonably positive, though worse than in 2005-2007.
There are, however, a lot of problems with freedom of association, with the law containing restrictions, going back to 1991.
There was an increase in cases where people were persecuted or suffered for their civic activity.
In May 2009 59-year old environment protection activist Oleksandr Goncharov was murdered by two assailants. His wife was badly beaten. Two days before his death, Mr Goncharov had taken part in an action to stop the illegal extraction, deposition and sale of sand at Zhukiv Island by several commercial firms.
In July there was an attack on another activist. These attacks are committed by criminals linked with corruption, however the police have not properly investigated any of them.
Freedom of association is restricted in the sphere of activities of religious organizations, this being confirmed by judgments of the European Court of Human Rights.
The second half of 2009 and the election campaign saw a worsening in the situation with freedom of speech in the media, with there being an increase in the amount of paid material in the press and in the number of attacks on journalists.
6. The right to life, equality before the law, the right to a fair trial, to privacy, freedom of movement, right to asylum
7. Economic rights : 1.77
The economic crisis led to increased problems in this area, including an increase in the number of infringements of labour legislation (people dismissed with such infringements, pay reductions), and, as mentioned, the failure by the government to pay social benefits stipulated by legislation. There were a huge number of court cases over this, with people also turning to the European Court of Human Rights.
8. Cultural rights: 1.77
The lack of budgetary funds led to a reduction in support for newspapers, libraries, etc, and bookshops were evicted.
There is no systematic policy on cultural rights.
9. Real chance for the average citizen to uphold his or her rights in court: Average: 2.65
Such cases are fairly common in civil suits, but least common in criminal cases. Only about 60 acquittals are handed down in a year, with half of these being revoked by higher courts.
Other problems in this area are the duration of such court proceedings, and failure to enforce court rulings.
There are also major problems with independence of judges, corruption and the lack of guarantees for legal aid.
10 Equal rights regardless of gender, race, state of health, language, religion etc:
Average: 2.32 (2.50 in the first half, 2.15 in the second)
11. Racism, intolerance etc: Average: 2.50
The number of violent hate crimes decreased in 2009 against 2007 and 2008. There was also a significant decrease in the number of anti-Semitic publications.
12. Protection of especially vulnerable groups (the disabled, the mentally ill, drug addicts and people living with HIV/AIDS, with tuberculosis, prisoners, etc
The system of social protection is on a very low level, with the government each year unlawfully restricting the rights of these groups through clauses in the Budget. This has become considerably worse as a result of the economic crisis.
Proposals from UHHRU and KHPG on improving the situation
- Table in parliament and pass a Criminal Procedure Code, and then new versions of the Code on Administrative Offences, on the Prosecutor’s Office and the Criminal Code. These changes are designed to ensure human rights protection and eliminate obstructions to effective investigations. The reforms should be carried out in accordance with a Presidential Decree on the concept strategy for reform of criminal justice, passed in 2008.
- Parliament should carry out judicial reform, the foundation being draft laws on the status of judges and the court system, passed by parliament in their first reading and approved by experts from the Council of Europe.
- In implementation of the pilot judgment from the European Court of Human Rights in the case of Ivanov and others v. Ukraine, the government was, by January 2010, supposed to draw up effective measures for removing problems on court rulings, especially in cases where one of the parties is the State, a State institution or enterprise.
- Pass a law on civic organizations which the Cabinet of Ministers should again pass to parliament.
- Parliament should examine a draft law on legal aid.
- Parliament should examine a new version of the law on information and a draft law on access to information..
- The Cabinet of Ministers should add to the Budget sources of financing for all expenses linked with exercising socio-economic rights.
- The Ministry of Justice should draw up and submit to parliament a law on protection from discrimination, on personal data protection, on information interception;
- In accordance with the Optional Protocol to the UN Convention against Torture, Ukraine should create an independent monitoring (preventive) mechanism of supervision over places of confinement, including hospitals and school-orphanages.
- The President should draw up and affirm a comprehensive range of measures for reducing torture and ill-treatment.
- Turn National Television Channel 1 into a public broadcasting channel, with financial and administrative independence. Its management must not be appointed solely by a State body, and there should be protected articles for financing and there should be no groups for early dismissal of the channel’s management.
Abridged and slightly supplemented from a text at http://helsinki.org.ua/index.php?id=1272022633
The introduction of named rail tickets is an unwarranted restriction of freedom
To the Prime Minister, Mykola Azarov
the Minister of Internal Affairs, Anatoly Mohylev
The Ukrainian Helsinki Human Rights Union has initiated an appeal by civic organizations against plans to reintroduce named railway tickets.
The undersigned civic organizations are against the introduction of named railway tickets.
The Ministry of Internal Affairs [MIA] has recently announced its intention to again have passport details added to railway tickets. The police claim that this is needed to fight crime.
We cannot agree with their arguments for the following reasons:
Imposing total monitoring of the movement of citizens is more typical of police states, not of democratic states which respect and observe human rights.
In Ukraine there is no personal data protection. There is neither the relevant legislation, nor appropriate administrative practice. In such conditions it is dangerous for information about all movement of a person by railway to be gathered on one database. This, for example, can be used for monitoring the political opposition.
Therefore in the present circumstances introduction of named rail tickets will be a violation of the right to privacy guaranteed by the Constitution and the European Convention on Human Rights.
Furthermore, there are violations of the right to freedom of movement. A person whose documents are lost cannot use the railway. If for example, on a business trip, your passport is stolen, you won’t be able to return home. Legislation clearly states that freedom of movement may not be restricted due to the lack of one or other document.
We also doubt the effectiveness of such a measure in fighting crime It is clear that organized crime and terrorist organizations which the MIA use to frighten us are sufficiently well-armed to use fake ID, and the planned change will thus in no way influence their criminal activities.
Besides infringing their rights, these changes seriously complicate people’s everyday life. You need to always have your (internal) passport with you and you can’t buy a ticket or get on a train since conductors check that the ticket holder is the actual person. These complications are particularly experienced in organizing group trips or trips of foreign nationals since it becomes impossible to buy tickets in advance. There could also be a huge number of inconveniences through a last name being spelt incorrectly on the ticket.
It is furthermore clear that the change will increase the queues at ticket desks with it taken twice as long to buy a ticket because the data needs to be input.
It is also clear that this will in no way hamper the ticket touts who were able to get around the rules up till 2007 when such named tickets were cancelled. They simply wrote down your details and in 10 minutes brought you the necessary ticket. The description of the activity of touts is not confirmed by facts, for example, by the number of crimes uncovered.
Police treatment of all passengers as though they are potential criminals is insulting and yet again demonstrates that the police’s activities are not based on respect for fundamental human rights.
The organizations below are categorically against this new initiative of the MIA regarding the compulsory inputting of passport details on train tickets.
The undersigned organizations, representing the interests of Ukrainian citizens, are totally against the MIA’s new initiative on the mandatory recording of passport details on railway tickets.
At present the appeal has been signed by the following groups, however this should increase considerably before it is sent on 19 April
Ukrainian Helsinki Human Rights Union
Kharkiv Human Rights Group
International Women’s Human Rights Centre “La Strada – Ukraine”
Legal Research and Strategy Institute (Kharkiv)
The Human Rights Organization “Justice”
The Without Borders Project of the Social Action Centre (Kyiv)
The Public Committee for the Protection of Constitutional Rights and Civil Liberties Luhansk
The Kherson City Association of Journalists “Pivden’” (“South”)
The Kherson Regional Charity and Health Fund
Access to information
Some legal issues regarding the work of the Security Service of Ukraine
In the time available to me for this talk it is impossible to cover all that I would like to, and I will therefore name some human rights issues linked with the work of the SBU [Security Service], only delving to a minimal degree in their essence.
Firstly, SBU is at present both a security service and a law enforcement agency. In my view this dualism needs to be removed. However the main areas of activity of the SBU at present – counter-intelligence, fighting terrorism and corruption only deepen it. We have a doubling up of the functions of law enforcement agencies which is not to the State’s benefit. I believe that the SBU should gradually turn into a security service and its law enforcement agency functions – detective inquiry, criminal investigation, etc – should over time be transferred to other law enforcement agencies.
Secondly, the mechanisms for control over the activities of the SBU in the light of PACE Recommendations №1402 (1999), №1713 (2005) are inadequate. I would point out just one of the many aspects of this issue. By law the SBU should provide an annual report on its activities to the profile parliamentary Committee on Issues of Defence and National Security. However these reports have never been made public and nobody knows anything about the Committee’s reaction to them. In my opinion, these reports should be published, at least their open part which does not constitute State secrets, and the material from discussions about the activities of the SBU in the Verkhovna Rada should also be available. The same applies to the SBU report which is sent to the President.
In the third place, legal regulation of investigative operations which infringe the right to privacy does not comply with judgments of the European Court of Human Rights under Article 8 of the European Convention. Ukraine has already lost one case in the European Court over a violation of Article 8 (Volokhy v. Ukraine) and will lose many others since there are very weak safeguards against abuses during interception of information from communication channels. The Law on Investigative Operations has been changed many times yet amendments have never addressed these safeguards. These investigative operations may be applied when dealing with grave and especially grave crimes. A simple comparison of the number of people convicted of grave and especially grave crimes with the number of permits to intercept information indicates an extremely low level of efficiency of the operation divisions’ work. Is that perhaps why these statistical data have been classified?
In 2002 40,000 permits were issued; in 2003 in the smallest oblast - Chernivtsi, there were 823 permits. During the first 9 months of 2005, according to the then Prosecutor General Sviatoslav Piskun, 11,000 permits were issued, while he stated that in only 40 cases was the data used. According to figures from the Supreme Court, in 2005 15,000 permits were issued and over three years this figure rose to over 25,000 in 2008 and approximately 20,000 in 2009. This is far higher than in European countries where the number of permits does not normally exceed one thousand per year. According to the Supreme Court, in 2008 the SBU made 8 thousand 323 applications to the court for communication interception warrants, this being a third of the overall number of such permits. At the same time, on average the SBU each year completes investigations into no more than 900 criminal files of which no more than 700 reach the court. It would appear that over 7.5 thousand warrants are received not in order to investigate criminal cases and the question must arise what the purpose is of such measures? Is this not too many for the prevention of crimes?
I would note in this context that the monitoring of telecommunication carried out by the SBU is not based on law, and in the absence of a base law on personal data protection seriously jeopardizes the right to privacy. I would mention also that no case on unlawful wiretapping of high-level politicians’ conversations has yet to be investigated. It is asserted that monitoring of Internet traffic is carried out in accordance with the Law on Investigative Operations, yet this is clearly impossible since such monitoring is general and not based on an individual approach. It can thus not be based on investigative operation cases initiated and a court warrant, as demanded by legislation. It becomes clear that there are simply no legal grounds for such investigative operations. They implement secret instructions which are clearly not in keeping with democratic standards.
The same applies to obtaining court permits for investigative operations. This is undertaken in accordance with Cabinet of Ministers Resolution No. 1169 from 26 September 2007, while the relevant procedure should, according to the Constitution and the European Convention, be passed as a law. For this reason on 16 January 2009 the Kyiv District Administrative Court issued a separate judgment which ordered the Cabinet of Ministers to draw up and submit to the Verkhovna Rada a draft law on the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and on use of the information obtained. However the instruction in this judgment has still not been carried out.
If one compares Ukrainian legislation and European Court of Human Rights judgments on Article 8 regarding control over communications, one may make the following conclusions:
– These measures should be exclusive and applied only in extreme cases where it is impossible to obtain the information any other way, and the law should clearly define the list of crimes where investigative operations may be used. Indication that this involves grave or especially grave crimes committed or being planned is too broad a range of crimes. There are virtually no checks in Ukrainian practice as to whether it is possible to obtain information by other means;
– There needs to be independent control over such a method: its use only on the basis of a court warrant, control over the use of the material by an independent personal data protection body. In Ukraine there is no such body, just as there is no base law on personal data protection, and there is no clear regulation on the procedure for using information obtained.
– The period during which communications are intercepted should be clearly defined by law. There is no such definition in open Ukrainian legislation where the issue is regulated by secret internal instructions, this being unacceptable.
– The person should be informed after their termination that surveillance measures were used against him or her. This makes it possible to appeal the grounds for such measures where this does not breach the investigation. In Ukraine this is possible only when reading the material of a criminal file after the conclusion of the pre-trial investigation and even then with certain exceptions. In practice, over 80% of those affected do not even guess that the law enforcement agencies are thus intruding in their private life.
An effective mechanism against abuse can be an annual public report on the use of such investigative operations. Reports like this are published in the USA, Canada and many European countries. Such a report could contain the following data:
– the number of investigative operations initiated; the number of investigative operations on the basis of which criminal investigations were initiated;
– the number of criminal investigations initiated; the number of cases brought to the court and the number of those cases where the person was convicted;
– the overall number of applications for court sanctions and number of applications from each law enforcement body carrying out investigative operations; the number of permits obtained to intercept communications and illicit searches, as well as the percentage used as proof in criminal proceedings;
– the number of searches and removals of documents and property carried out by SBU officers
– the number of detentions carried out by SBU officers
– the number of cases where surveillance is imposed on individuals
– the number of extraditions carried out by SBU officers
– generalized information about other investigative operations carried out by the SBU.
This information will give a real picture of SBU activities and make it possible to see the effectiveness of measures aimed at investigating crimes but which limit human rights. It will, finally, enable an assessment of the balance between limitation of human rights and fighting crime. At present it is clear that there is no such balance, with limitation of rights, as previously, dominating and often undertaken without real public need.
Even generalized data on investigative operations are in the List of Items of Information constituting a State Secret. This information was made a State secret in August 2005 at the initiative of the SBU which has supposedly in recently years been publicly expressing its support for implementing democratic standards in its work. A start would therefore be the removal from the List of Items of Information constituting a State Secret Item 4.4.8: “Information on statistical figures for investigative operation, counter-intelligence or intelligence activities making it possible to carry out a quantitative assessment of operational forces and measures used for carrying out this activity but which don’t reveal the targets of such measures”.
Fourthly, a key issue is that of openness of information, freedom of exchange of information. Francis Fukuyama in his book “Trust” convincingly demonstrates that in the contemporary world it is those societies which are open to what is different that are successful. The most successful country in this sense is the United States of America where there is the greatest degree of freedom of information exchange, and accordingly the most scientific and cultural achievements. In Ukraine there is a pronounced trend towards restricting access to information and freedom of information exchange under the pretext of protecting information security. The very concept of information security is not clearly defined by law, is meaningless and what exactly is being protected is basically unclear. We must acknowledge that freedom of information in Ukraine is too restricted and is constantly violated. There is no developed culture of openness which is understandable given the unfortunately legacy from Soviet times when absolutely everyday was classified as secret. Too much information is in my view now also classified unwarrantedly.
It is also clear that neither in the Regulations passed by Resolution No. 1893 from 27 November 1998 on rules for working with documents stamped “For Official Use Only”, nor in the practice of its application is there any regard for the well-known international standard with respect to freedom of information - the information is classified, not the document. The restrictions must apply to the specific information, not the document as a whole. For example, according to VII..2 of the Recommendations (2002) of the Committee of Ministers of the Council of Europe from 21.02.2002 “On access to official documents”, “If a limitation applies to some of the information in an official document, the public authority should nevertheless grant access to the remainder of the information it contains.”
The same situation applies with legal regulation regarding State secrets. In order to implement this standard, amendments are need to the Law on State Secrets. The first paragraph of Article 15 of this Law on classifying and declassifying material states that “the classifying of a material medium is carried out by assigning the relevant document, product or other material medium of information a secrecy stamp”. Only texts containing State secrets must be classified, not the document as a whole. For this the name of Article 15 must be changed and its first paragraph changed to read: Article 15: Access to material media of information (a document) which contain information which constitutes a State secret.
Items of information constituting a State secret shall be classified by assigning the relevant parts of the document, product or other material medium of information a secrecy stamp. The public authority, authority of the Autonomous Republic, bodies of local self-government, enterprises, institutions or organizations should nonetheless be provided with other information contained in the document which is not classified.
We would note that the current Law on State Secrets does not contain a maximum time frame for classifying information. Article 13 § 2 of the Law makes it possible for the period during which it is classified to be extend when it runs out, while paragraph three allows the President on his or her own initiative or on the basis of a proposal from public specialists on issues involving State secrets to extend decisions on classifying information. This leads in practice to information being kept secret for 40, 50 years or longer. The law needs to establish a maximum period – no more, say, than 30 years. Then paragraph three of Article 13 could read as follows:
The period during which information is classified shall not exceed 30 years.
It is absurd to keep secret all information about the political repressions of the 1960s to 1980s. The maximum period for classifying information throughout the world is from 30 to 40 years. Why should we keep such old archival material secret?
Fifthly, there are also other controversial issues linked with the declassifying of archival materials pertaining to political repression in the USSR. We would note that this material was created before 1991 in another State, the USSR, and cannot properly speaking be classified as State secrets of Ukraine. The stamps “secret”, “entirely secret” and other stamps restricting access on these documents are not stipulated by any Ukrainian law (and the exercise of the right to information according to Article 34 of the Constitution may only be restricted by law). These stamps were introduced in the USSR by Instruction No. 0186 which was itself secret and not on open access.
Normative acts of the Soviet period are only valid in Ukraine where they do not run counter to the Constitution. The given Instruction clearly breaches it and cannot be applied. Therefore refusals to provide information and access to archival files with Soviet stamps restricting access are entirely unlawful.
It is clear that all documents classified as secret by the Soviet regime need to be declassified. There is no sense in independent Ukraine in keeping any of that material secret. And the information which should remain secret can be given the stamps “top secret” or “particularly important” in accordance with the Ukrainian Law “On State Secrets”.
During 2009 approximately 16 thousand archival documents in the SBU Archives were declassified, this being only a small percentage of the overall number of documents awaiting declassification. The process of opening up the archives must be continued especially given that President Yanukovych has declared European integration a main priority. On issues of memory, access to information about political repression, etc, European consciousness has long had a clear position, formulated in numerous resolutions of the European Parliament, Parliamentary Assembly of the Council of Europe, PACE Committee of Ministers and OSCE.
I will not bore you with long quotations, three will suffice:
1. “The wider public know almost nothing about the crimes of the totalitarian communist regimes. In some countries communist parties legally exist and actively function despite the fact that sometimes they have not even distanced themselves from the crimes committed in the past by the totalitarian communist regimes.” (I would note that this directly concerns Ukraine where the Communist Party is erecting monuments to Stalin and billboards with his portraits, and this elicits virtually no protest).
2. “In order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe’s troubled past must be supported, as there can be no reconciliation without remembrance”
3. “access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies”
There are some specific problems in this question. The leadership of the SBU Archives stated on many occasions during 2009 that access to the archival criminal files of those people repressed in the 1920s – 1950s who had not been rehabilitated were open. This needs to be recognized via an internal normative act within the SBU since in some regional SBU archives access has been denied.
Archive workers also refuse access or do not allow copies to be made of documents of a procedural nature from archival criminal files and other archival files on the grounds that there are names and other personal data about those who took part in persecution.
Such data is either secret or constitutes confidential information about an individual. According to Article 16 of the Law on the National Archival Collection and Archival Institutions, access to such documents is restricted for 75 years unless otherwise envisaged by law. On the basis of this norm, the archives refuse to grant access to the document as a whole, violating the above-mentioned principle of classifying the information, not the entire document. This practice must be changed. Archivists should provide access to the open access part of the document, making a copy of it, and blotting out the data not to be divulged. It is much better to create an electronic copy, removing the information which may not be accessed.
Yet here the question arises of how justified in general is it to refuse access to confidential information about a person who took part in repression. After all each victim has the right to know the names of the people who persecuted him or her, and the public have the right to the truth and particularly to maximum information about the activities of a repressive regime. They have the right to identify people guilty of human rights abuse..
We should note that the Law on State Secrets does prohibit the classifying of information about human rights violations and abuse by public authorities and their officials. The more general principle of habeas data should apply – each person has the right to know archival data collected on him or her. This right also applies to officers of the Security Service. If the person has died, the right is extended to their relatives, who should also have the right to information about the fate of a person who disappeared as the result of Security Service activities
We would point out that in most post-communist countries this collision between freedom of information and the right to privacy is mainly resolved in favour of freedom of information. For example, in Germany access to files of the operational lists is open and 1.7 million Germans have made applications to see their dossier. The large scale numbers indicated the overcoming of silence and there were no excesses as a result.
In my view the existing approach to this issue needs to be reviewed since in Ukraine this collision is in the main resolved in favour of retention of secrecy regarding the activities of the punitive bodies which is not in keeping with the European approach. A balance needs to be found between those key rights by finding a solution appropriate for our country after carrying out the relevant research.
Law enforcement agencies
President sends a complaint about the MIA … to the MIA
The Ukrainian Helsinki Human Rights Union on 27 April received a response from the President’s Administration to its open letter regarding the lack of response from the Minister of Internal Affairs to criticism from the President [in English here: http://helsinki.org.ua/en/index.php?id=1270127290 ]
The letter explains that “On 29 March the President’s website published a report by the Press Service on the President’s meeting with the Minister of Internal Affairs during which the President described as “ill-considered” the decision to reduce the part of the MIA office dealing with human rights. The President stressed that measures on defending human rights needed to be extended, not reduced “
The Minister did not respond, and therefore an open letter was sent to the President, Prime Minister and Deputy Prime Minister with, of course, a copy to the Minister of the MIA, Anatoly Mohylev.
The response from the President’s Administration is frankly staggering. UHHRU was informed that the letter had been considered, but since a letter with analogous content had been sent to the Ministry of Internal Affairs, it was the MIA which should inform on the results of the review.
This is not the only baffling communication breakdown of a very strange variety. See http://helsinki.org.ua/en/index.php?id=1271876732 for information about another meeting between the Minister of the MIA and the President. This ignored the fact that the opposed measures (closing the Department for the Monitoring of Human Rights in the Work of the Police and dismissal of human rights regional advisors) had taken place. It suggested however that the President’s instruction had been carried out through the creation of already created and functional Public Councils, with the added nuance that those in charge of these would be imposed from above.
Human rights concerns expressed on President’s 50th day in office
The Ukrainian Helsinki Human Rights Union and Kharkiv Human Rights Group have published an open letter to President Yanukovych expressing their concern over a worsening in the human rights situation during the 50 days since he was elected President.
In their letter they acknowledge that the new regime inherited systemic problems in this area, the lack of a strong independent judiciary and flagrant violations of the right to a fair trial, etc. With only a few exceptions there was no systematic policy on improving the human rights situation.
“Efforts by human rights organizations, some departments and civil servants from the Ministry of Internal Affairs [MIA], Ministry of Justice and Ministry of Education resulted in a certain amount of progress however the political crisis and the sacrificing of human rights to political expediency precluded systemic improvements.
We are compelled to state that the actions of the authorities over the first 50 days of the new Presidency do not demonstrate any intention to make changes for the better. They are instead aimed at reducing those positive trends that had emerged. We have been seeing numerous violations and demonstrations of contempt for human rights during this period. We are concerned by dramatic incursions on freedom of expression, violations of the right to equal access to higher education and the postponement of the local elections.
We are outraged by the dissolution of the Department for the Monitoring of Human Rights in the Work of the Police and statements about the creation of a new human rights public council under the MIA against the views of civic society. We have also seen flagrant violations of the right to peaceful assembly and other infringements by the MIA.
We must also note discrimination against women, both the lack of a single woman in either the new government, or among Heads of State Administrations, as well as public assertions that women may not carry out reforms.
We have learned of dismissals of trade union activists for standing up for miners’ rights.
Access to archival documents on political repression has also been reduced, and there has been interference by the Security Service [SBU] in the work of the National Television and Radio Broadcasting Council, and a statement claiming the need to simply mechanisms for receiving warrants for intercepting communications.
We also view the intention by the Communist Party to erect a bust to Stalin in Zaporizhya as an affront to human values.
These infringements in more detail
Encroachments on freedom of speech
The vast majority of media and political experts consider that the actions of the new regime are aimed at curbing freedom of speech.
The news on television and radio stations have again become bland and vapid, and talk more about natural and other cataclysms abroad than events in Ukraine. Hard-hitting political talk shows are disappearing. The number of attacks on journalists has increased, as well as pressure from the authorities.
Loss of equal access to higher education
Calls for a radical overhaul of the direction and content of educational reform by the Deputy Prime Minister on Humanitarian Issues, V. Semynozhenko; the opening of preparatory courses and the possibility of entrance exams on the old basis means the effective cancellation of ZNO [independent external assessment] and loss of equal access to higher education, and the return to the old scale of corruption in higher education.
Changes reducing human rights protection in the MIA
By an Order from 18 March, the Department for the Monitoring of Human Rights in the Work of the Police was dissolved, while 26 regional representatives were only informed of their dismissal on 7 April. Furthermore, their salary (for the 2 month period of notice) was from 4 April halved, although they only learned of this on 14 April.
This is despite the fact that you would have had to have been blind or seriously biased to not see the enormous work which the Department had achieved over 2 years in the police force aimed at ensuring respect for human rights and reforms within the MIA. Hundreds of ordinary citizens who complained of unlawful actions by the police received assistance from the staff of the Department. With their help significant abuses by the police were uncovered. It was thanks to the Department that the mobile groups on monitoring observance of human rights in places of detention under the MIA began working systematically resulting in significant improvements in the conditions of ITT [temporary holding facilities].
It was suggested that the dismissed members of staff of the Department do the same work on a voluntary basis. Yet if their work is blocked as it is now, and they are deprived of information about what is happening in the central and regional MIA divisions, and this is when they are still officially employed for two more months, what can one expect later?”
The letter reminds the President that [according to the official website – translator] at a meeting on 29 March he criticized the Minister of Internal Affairs, Anatoly Mohylev , called the decision regarding the Department ill-considered and said that he would not recommend economizing on human rights.
This was ignored, yet the Minister then claimed that to implement the instructions MIA Public Council on Human Rights would be created, chaired by “well-known human rights activists”. The letter points out that such Public Councils have been functioning for four years, with their co-chairs being elected by members of the public and not appointed by the MIA leadership. And that these Public Councils already include well-known human rights activists.
One can already observe significant rights infringements in the work of the MIA under the new Minister, for example, the reintroduction of named railway tickets. With this the police demonstrate their attitude to all passengers as potential criminals, and show the role they see human rights as playing. The MIA had previously rejected this initiative on the recommendation of the Human Rights Public Council attached to the MIA which had pointed out the potential abuses of human rights.
There have been a number of infringements by the police of freedom of peaceful assembly during this period, with the police using force against peaceful demonstrators. In Kyiv alone such actions were observed on 14, 25, 27 March and 8, 9, and 13 April. On 25 March the Cabinet of Ministers addressed Instruction No. 14678/1/1-10 to the Kyiv City State Administration “on using comprehensive measures on organizing work with citizens and their organizations, including on preventing and stopping in future the holding of protests near the premises of the President’s Administration and the Cabinet of Ministers”. Such an “instruction” is a flagrant violation of freedom of peaceful assembly and a number of Articles of the Constitution.
Significant infringements of the Constitution by the new regime have been seen in the postponement of the local elections, the lack of mayoral elections in Kharkiv where the former Mayor was appointed the Head of the Regional State Administration, the highly dubious manner by which the coalition was formed and others, indicating a general reduction in political freedom in the country. Constant violations of the Constitution seriously jeopardize human rights.
Violations of human rights by the SBU
The Head of the SBU V. Khoroshkovsky has announced a suspension of the process of establishing the true facts about Ukraine’s history during the twentieth century and the opening of the archives. “a great deal of material has been declassified: the truth that needed to be made available to the Ukrainian people, that truth has been made available”; “the concern of the Security Service is primarily in protecting its secrets, protecting the laws which created these secrets”
Material on the history of political repression has been removed from the President’s site and the sites of regional state administrations. In Sevastopol since the middle of February there have been billboards with Stalin, together with Churchill and Roosevelt, while in Zaporizhya the Communist Party is planning to erect a monument to Stalin [on private property – translator]. Only 141 National Deputies supported a resolution condemning this.
While declaring the wish to unite the country, the Party of the Regions, together with their coalition partner – the Lytvyn Bloc and the Communist Party – are effectively dividing it, with nothing further splitting the country than the reanimating of Stalinism.
The legislative activities of the Verkhovna Rada are aimed at restricting human rights. Parliament is considering a number of draft laws which would serious violate human rights and is rejecting draft laws aimed at their defence. The fate is as yet unclear of the progressive draft Criminal Procedure Code over which consensus had been reached between the legal community, as well as other draft laws. The mechanism for ensuring that draft laws are agreed with the Ministry of Justice to see that they comply with European Court of Human Rights case law is virtually not working.
Repression against trade union activists
There have already been repressive measures against trade union activists. The Krasnodonvuhyllya company [coal mining – translator] is destroying the Independent Miners’ Union because it refused to give its consent to a worsening in pay conditions in breach of legislation.
The Director of the Barakov Mine on 9 March applied to dismiss members of the trade union committee because they refused to give consent to a violation of the Code of Labour Laws and a worsening in pay conditions. The wording was “for not agreeing to continue working in connection with a change in conditions of work”. The miners have filed a law suit against the company.
The authors demand that the President complies with Article 3 of the Constitution which declares that the main duties of the State are to affirm human rights and freedoms.
They express their categorical opposition to the encroachments on freedom of speech, information and assembly outlined above, to the suspending of work on opening up the archives; to measures changing the rules to ZNO less than three months before the beginning of the application process to higher institutes.
They protest against the interference of the MIA in the work of the Public Councils, against the liquidation of the Department for the Monitoring of Human Rights in the Work of the Police
Such institutions, on the contrary, need to be created within the Ministries of Justice, of Health, for the Family, Youth and Sport and other executive bodies in implementation of the Optional Protocol to the UN Convention against Torture which Ukraine ratified in 2006 but has since done nothing to implement.
The authors express their willingness to cooperate in improving the human rights situation, and recommend:
- strengthening constitutional human rights guarantees;
- reforms to the judicial system, criminal justice and the system of legal aid in accordance with concepts passed previously by Presidential Decree;
- passing a new Criminal Procedure Code;
- changing the priorities of information policy by passing laws on access to public information, on information, on public broadcasting; on civic organizations; and reviewing legislation on the protection of public morality and its application;
- reworking draft laws on legal aid; on peaceful assembly; the draft Labour Code which significantly violate human rights;
- establishing the office of specialized Ombudspersons on fighting torture and ill-treatment; discrimination; on freedom of information and data protection ; and on the rights of the child; as well as appointing regional representatives of the Human Rights Ombudsperson.
Arkady Bushchenko, Head of the Board, Ukrainian Helsinki Human Rights Union
Volodymyr Yavorsky, Executive Director, Ukrainian Helsinki Human Rights Union
Yevhen Zakharov, Co-Chair, Kharkiv Human Rights Group
Iryna Rapp, Co-Chair, Kharkiv Human Rights Group
22 April 2010
How the Minister of Internal Affairs improves human rights monitoring
The Minister of Internal Affairs Anatoly Mohylev at the end of March stated to the German Ambassador in Ukraine that “the new changes which the Ministry of Internal Affairs [MIA] is introducing will only improve human rights monitoring”
So what new changes is the Minister initiating?
Anatoly Mohylev decided that there are two many professionals overseeing observance of human rights and that Assistants to the Minister on the Monitoring of Human Rights in the Work of the Police in the regions should be dismissed.
On 18 March he signed an order dismissing the Regional Human Rights Assistants to the Minister. Why indeed watch over observance of human rights in the regions? This order was not, however, made public and even the staff of the Department for the Monitoring of Human Rights in the Work of the Police knew nothing about it. Of over 30 people involved in monitoring and permanently providing information directly to the Minister on violations of human rights in the regions, only 5 remain. Not a lot given a minister of many thousand people and a country with many million.
It thus transpires that when the Minister spoke those words to the German Ambassador, at that time he had, effectively “secretly”, already signed an order for a significant reduction in the number of Ministerial human rights advisors.
There has been no response to two open appeals from human rights groups protesting against these decisions of the Minister, and this despite the fact that one of the appeals was signed by 250 organizations and individuals.
The President, in response to appeals from human rights organizations, criticized such decisions of the Minister, calling them ill-considered, and said that he would not advise him to economize with public funding on human rights. Yet the frugal innovator, Mohylev ignored such recommendations.
It was only on 7 April that the Regional Human Rights Assistants received official notice and were shown the relevant order, despite this having been signed over three weeks before. In accordance with the Code of Labour Laws they have two months period of notice from when they are shown the order. However their pay has been halved. Yet again the order regarding this was passed on 4 April, yet they were only informed of it on 13 April, despite the fact that on 7 April there was a meeting between the Head of the Minister’s Office with the Minister’s Assistants.
Furthermore, in order to carry out the order on reduction of staff, since 18 March many of the Assistants have simply not been allowed into their offices, refused access to staff transport for carrying out checks, and held in an information blockade. Other activity has also been blocked, for example, they have not been invited to meetings, their instructions regarding mobile group work are not signed. Their activities have been blocked virtually throughout the entire country.
In response to the appeal from the Minister’s Assistants during the joint meeting on 7 April that it is impossible for them to carry out their obligations, the Head of the Minister’s Office promised to sort everything out and send the relevant telegram to the regions so that the Assistants could be allowed to work during the legally established two months. Yet a week has passed, and nothing has changed. No telegrams were sent although the order on staff cuts was circulated and carried out immediately.
In dismissing the Human Rights Assistants, the idea was put forward of introducing such Assistants on a voluntary basis if the issue was merely one of money. It was suggested that they be given certain powers regarding the gathering of information on human rights violations. However in view of how the present Assistants are being prevented from carrying out their work, there are great doubts as to whether this initiative could really be implemented. It would appear that the police really don’t like internal monitoring of human rights abuse and the real aim is to get rid of it. It is difficult to imagine what Mohylev’s next innovations, aimed at improving the human rights situation, could be.
One thing is already clear – this being the reintroduction of named railway tickets. With this the police demonstrate their attitude to all passengers as potential criminals, and show the role they see human rights as playing. The MIA had previously rejected this initiative on the recommendation of the Human Rights Public Council attached to the MIA which had pointed out the potential abuses of human rights. Now again nothing can stop the police.
is insulting and yet again demonstrates that the police’s activities are not based on respect for fundamental human rights
We are also seeing a return to the Soviet practice of police officers’ work being assessed according to various formal indicators, for example, the number of crimes solved, the number of fingerprints taken, etc. Although the plan for crimes solved, cancelled two years ago, has not been reinstated, the criteria stated by the Minister of the MIA for the assessment of local departments and district police stations suggest an informal return to fighting for indicators.
It is known that this leads to numerous cases of abuse with crimes being provoked, torture and ill-treatment, arbitrary detentions, other violations and in fact innocent people being convicted. Since all is determined by statistical indicators, and it is this that determines a person’s career and bonuses, than attempts will be made using any means to achieve this end. It is for this reason that they were previously revoked, in order to not generate human rights abuse. Not to mention the fact that the crime level in Ukraine is higher than in Europe, while the level of crimes solved is double, which suggests that our figures are somewhat artificial.
It is not clear as yet whether this policy will affect another mechanism for ensuring human rights protection in the police, that being the human rights public councils under the MIA and regional departments. These have yet to meet and there has been no clear announcement regarding their future work.
The public part of the MIA Human Rights Public Council has suggested a meeting in the last part of April, however there has been no indication as to whether this is acceptable.
The above makes it clear that the policy being carried out in the police force has little in common with the policy of the European police, and human rights are of ever less interest to the law enforcement bodies. In this case, there can be no question of reforms.