“Prava Ludiny” (human rights) monthly bulletin, 2010, #05
Legal Commentary on the New Procedure for the Formation of a Parliamentary Coalition in Ukraine The right to liberty and security
Donetsk Memorial: Donetsk Regional Prosecutor is flouting the Constitution Privacy
MIA sticks to its guns over named tickets Freedom of conscience and religion
Important Precedent from the Rector of the Ukrainian Catholic University Disturbing Security Service Visit to the Ukrainian Catholic University Freedom of expression
Flagrant violations of key human rights Law enforcement agencies
Politics and human rights
Legal Commentary on the New Procedure for the Formation of a Parliamentary Coalition in Ukraine
From the Editorial Board: In the Ukrainian media of late there has been something of an increase in the tone of political and legal commentary over the Judgment of the Constitutional Court from 8 April 2010 regarding the possibility of individual National Deputies taking direct part in the formation of a coalition of deputy factions in the Verkhovna Rada. Since this Judgment is complex, it is not surprising that it has not been viewed by all in the human rights community and Ukrainian civic society in the same way. It is for this reason that we are so bold as to present the legal commentary of V. Rechytsky on this Judgment
This commentary is in the form of “abstract” answers to two legally important questions:
- How the provisions of the Constitution and Parliamentary Regulations relate to one another in Ukraine and what follows from this in the political sense;
- Whether it is constitutionally justified in Ukraine for individual National Deputies who are not in the deputy factions which formed the given coalition to be in the parliamentary coalition.
With regard to the first question, the answer to it cannot be unequivocal since the general procedural rules and organizational forms of institutions of legislative power in the world are extremely varied. It is even customary to assume that there are no established models. One can therefore only speak of some specific, most important aspects.
The main thing here is that firstly, procedural norms for parliamentary work exist in virtually all parliaments and secondly, strict adherence to these norms is mandatory. One of the common definitions of democracy is that it provides unpredictable results on condition that entirely predictable procedures are observed.
In most constitutional democracies the main provisions relating to issues of parliamentary procedure are directly contained in the constitution. Furthermore regulations cannot change or modify procedural principles established by an act of higher juridical force.
Against this background one observes that paragraph nine of Article 83 of the Constitution which is blanket in its content, that is, it envisages reference to another separate norm, does not just entrust the Regulations not with the development or specification of the relevant constitutional norms. It states that the “basis for the formation, organisation, operation, and termination of activities of coalition of deputy factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and Regulations of the Verkhovna Rada of Ukraine”.
It is clear that the given constitutional norm makes it possible for the legislators to stipulate via the Verkhovna Rada Regulations something considerably more important than merely the straight repetition of the Constitution in other words. Such an approach can be considered a specific feature of the normative regulation in the Ukrainian constitutional model.
With regard to practice in other countries of using something like the Regulations, this practice is more or less the same in Spain, Germany, Japan, Russia and the USA. In other developed countries there may not be regulations as a separate document, but then the rules for parliamentary procedure act as established legal custom or as separate written rules, established by parliament at different times and in different circumstances (Great Britain).
Thus the question of compliance (adequacy) of parliamentary regulations to the Constitution in various countries is resolved in different ways.
There is especially scrupulous constitutional control over the content of the regulations in France where even draft regulations of parliamentary chambers (as well as amendments and additions to them) must be sent to the Constitutional Council to establish (confirm) that they comply with the main law of the country. In other countries (Germany, Austria, Gabon, Kenya and Malta) the question of compliance of the parliamentary regulations to the Constitution is also determined by a body of constitutional control such as a Constitutional or Supreme Court.
We can thus state that the regulations are an important normative act which in some places is checked for their compliance with the Constitution according to special procedure.
When however we speak about the situation with the relationship between Ukraine’s parliamentary Regulations and the Constitution, the situation is additionally complicated by certain political circumstances. For example, the marvellously swift by Ukrainian standards creation of M. Azarov’s present government can be considered a violation of the Constitution, but also a return to commonsense. After all in 2004 Ukrainian constitutional legislation significantly diverged from organic normative requirements through the legally and procedurally unacceptable vote for constitutional amendments in a package with an ordinary law. The constitutional changes of 2004 were carried out with flagrant and open violation of the logic behind constitutional creation with this subsequently leading to systemic problems in the normative body of the Main Law. This is mainly connected with the fact that since 8 December 2004 the text of Ukraine’s Constitution has contained two mutually exclusive legal tendencies. One of them (confirmed by the Judgment of the Constitutional Court from 8 April 2010) is the absolutization of free mandate of a National Deputy, the second – the clear desire to subjugate parliamentary existence to strict corporate (party, factional, and in the future, coalitional) discipline.
In other words, under the present circumstances the Constitution contains arguments in favour at once of two competing legal positions. From this there automatically follows a task for the Constitutional Court – to minimize the adverse consequences of such normative conflict. In order to carry out its mission, the Constitutional Court must first determine which of the two legal trends is legally organic and less risky.
It is customary to consider that the law must stand above human passions and emotions, however solely on condition that they are indeed embodiments of human reason. In the life however of a young democracy the laws not infrequently contain the most various forms of political searching. Articles 5, 38 § 1, 79 § 1 and 80 § 2 of the Constitution are subjugated to the logic of a politically weakly structured Verkhovna Rada. This approach guarantees National Deputies free mandate – ultimately broad freedom of choice of parliamentary behaviour. Yet if the mandate is truly free, then no factional or coalitional discipline can be considered absolute.
Under the given circumstances a parliamentary coalition based on collective and individual membership should (ideally) exist only up till and for the creation of a national government. As soon as the Cabinet of Ministers has been established, any prolongation of the coalition becomes redundant. Otherwise the position of several deputies (free to join and leave the coalition) could directly impact on the fact of the government and the political stability in the country.
Furthermore individual and collective (factional) membership in the coalition really cannot in any legal way prompt deputies to vote for or against any specific issue. It makes sense only as a democratic means of putting forward candidates as Prime Minister and members of the Cabinet of Ministers. Even the provisions are of fundamental importance since both established political ideology and moderate party or factional discipline in Ukraine are at the stage of painful initial formation. In Ukraine’s real life to a large extent they are artificial advantage-linked creations, a figment of the imagination.
It is for this reason that the effective return (through recognition of individual membership in the coalition) of Ukraine to a model for forming a Cabinet of Ministers based on a simple majority of National Deputies can be considered the return of Ukrainian constitutionalism to commonsense. If the existing political system in Ukraine is organically simple, then forced introduction of complex juridical rules for ensuring its functioning are not only premature, but harmful.
All of this de facto justifies the Judgment of the Constitutional Court from 8 April 2010 which found lawful the existence of a coalition based on the merging in it of faction and individual membership. However with such recognition, the Constitutional Court has heightened the risks for the country’s political stability in the future. After all individual membership in the coalition will help both to accelerate the creation of a coalition, and the fall of the Cabinet of Ministers.
Essentially permission for the formation of a coalition with the help of individual deputies means permission for the support of the Prime Minister and members of the government on the basis of personal liking and trust. Yet National Deputies had this possibility from the outset. One can in general say that the present situation demonstrates not so much a battle of “politicians” and “lawyers” in judges’ chairs, but the overly ambiguous state of the Ukrainian constitutional system.
Since Ukraine is still muddled in its choice of constitutional axioms, the formulation of legal theorems (the main task of Constitutional Court judges) sometimes leads in Ukraine to paradoxical results.
As mentioned above, overt corporativism and hypertrophied party discipline compete in Ukraine’s Constitution with a pronouncedly free deputy mandate since the paradigms of the already muffled socialism and still under-developed capitalism remain ideologically competing paradigms in Ukraine.
The sharply accentuated freedom of the National Deputy in Article 80 § 2 of the Constitution, the ban on imperative mandate are the buds of political liberalism of a western model and type. Clearly excessive, given the state of Ukraine’s political system, demands for party and factional discipline (Item 6 of paragraph two, paragraph six of Article 81 are a product of Soviet democratic centralism.
A typical manifestation and result of Ukraine’s “constitutional dualism” must be deemed the passing of the Law of Ukraine “On the Regulations of the Verkhovna Rada” from 9 March 2010. After all, the very name “Regulations of the Verkhovna Rada” is an indicator not so much of legal force as of the functional purpose of a normative act. That is, in itself the existence of a text with this name does not formally satisfy the requirements of Item 21 of Article 92 § 1 of the Constitution which states: “The following are determined exclusively by the laws of Ukraine <...> the organisation and operational procedure of the Verkhovna Rada of Ukraine, the status of National Deputies of Ukraine”.
The Constitutional Court previously found the “Regulations” (as a Resolution of the Verkhovna Rada) unconstitutional, since according to the Constitution they needed to be a fully-fledged law. Did the Regulations become a fully-fledged law after 9 March 2010? One feels that the answer is negative since after all any law of Ukraine which affirms other normative act does not turn the latter into a part of the law. For example, the Constitution of the Autonomous Republic of the Crimea is specifically a constitution, and not a law of Ukraine, just as the international agreements ratified by the Verkhovna Rada are not laws of Ukraine. Such acts have a specific level of stability and juridical force. For example, the Constitution of the Autonomous Republic of the Crimea does not require a majority of the constitutional makeup of the Verkhovna Rada, while international agreements ratified by law remain legally higher than Ukrainian laws. Moreover such sources of law are not subject to the classical rules of the legislative process, and amendments and additions to them follow separate procedure.
All of that yet again proves that at the level of current legislation the inconveniences of the Constitution can only be partly eliminated. If Item 15 of Article 85 of the Constitution, changed in 2004, adds to the powers of the Verkhovna Rada the “passing of Regulations of the Verkhovna Rada of Ukraine”, while Item 21 of Article 92 § 1 states that the Regulations should be a law, then the simple “approval of the “Regulations” by law can only formally resolve the clash.
In answering the second question which we articulated at the beginning of this commentary, we should begin with an analysis of specific norms of Article 81 of the Constitution. For example, Item 6 of Article 81 states that “failure of the deputy elected as a member of a political party (or an electoral block of parties) to join a deputy faction of such political party (or an electoral block of parties) or the termination of the membership of such deputy in such faction” leads to the early termination of his or her powers. I am convinced that this conflicts in its idea with Articles 5, 38, 69, 79 and 80 of the Constitution which in no way envisage “disciplining mediation” of National Deputies via parties, blocs, factions or coalitions as a whole in the relations of citizens with those they have elected;
In the spirit and letter of the Constitution, the mandate received at the parliamentary elections by a National Deputy is not subject to political checks after the elections have taken place. Political choice and control of candidates for National Deputy according to the dominant logic of the constitutional norms should be carried out only at the stage of formation (inclusion in) candidate lists. Subsequently, that is for the entire parliamentary term the fate of the National Deputies does not depend on their party.
Unfortunately this mode of relations between National Deputies, parties and the people of Ukraine was deformed by the amendments made to Articles 81 and 83 of the Constitution. It was on the basis of these amendments that Ukrainian parties at parliamentary level obtained the right to terminate the powers of a National Deputy early for activities which free mandate effectively and legally guaranteed him or her – Article 80 § 2 of the Constitution.
It must be acknowledged that heightened party discipline of deputies within the walls of parliament is one of the trends for the development of contemporary constitutional legislation of Western European countries. For example, the British model for such relations does not allow for the free expression of will of rank and file (in the party sense) deputies on basic political issues. On the contrary, considerably more freedom of political manoeuvre is given to US congressmen. It is customary to consider that the American model of representation of the people allows parliamentarians to be fairly free in their political preferences.
However even under conditions of heightened party discipline, parliamentary deputies in western countries are not subject to mandatory loss of their mandate for dissident voting, political declarations or acts. If a deputy cannot be recalled by the people (the prohibition of imperative mandate is a norm and principle in the West), then any party has even less grounds for this.
Punishment in most such cases is the refusal to give political support to dissident deputies at the next elections. Therefore the norm, enshrined in Item 6 of Article 81 § 2 of the Constitution on the possibility of terminating deputy powers at the decision of the party (bloc) is unwarrantedly strict and is little in keeping with the overall spirit of the Constitution. On the one hand, constitutional norms make National Deputies individually free, on the other they impose strict corporate loyalty.
All of this has negative consequences not only because organic parliamentary life should involve real discourse, i.e. be based on the art of achieving difficult compromises. What is even more important is the fact the strict factional discipline in Ukraine is unwarranted due to the merely formally structure and immature state of its political system.
As we know, parliamentary republics as a prerequisite for their existence envisage a high level of political culture of parties. Ukrainian political parties do not share such culture. Their very number demonstrates the excessive vanity and petty intransigence of the Ukrainian political elite. In Ukraine basic versions of political ideology (conservatism, liberalism, moderate nationalism) remain almost unformed. Since these failings may only be overcome through long-term evolution, a parliamentary republic in Ukraine remains problematical also in the practical sense.
One cannot ignore the fact that in the historical perspective Ukrainian parliamentarianism was not successful. The actions of the Central Council, the “collegiate dictatorship” of the Directorate and later decisions of the Congress of the Working People excelled in abuse of political rhetoric, eclecticism, and overt populism. Although the Central Council observed democratic procedure and its leader M. Hrushevsky was not afflicted by authoritarianism, in the general analysis Ukrainian parliamentarianism proved to have catastrophic consequences. Whether good or bad, since the time of Khmelnytsky up till Hetman Skoropadsky, the only effective form of democracy was that based on strong centralised power (“sole leadership”).
Furthermore, the ethno-cultural divide in Ukraine into East and West constantly creates a pendulum effect at parliamentary and government levels. Moderate fluctuations of priorities in parliament are normal, yet in Ukraine they threaten to become fluctuation at the level of state strategies.
Decision-taking in presidential republics is distinguished by dynamism, while in parliamentary republics it is of a relatively slowed down nature. This pattern is also important for Ukraine since its political parties and parliamentary factions are extremely intransigent and selfish. All of this carries the danger that Ukrainian parliamentarianism risks chronic stagnation in its reactions to the challenges of the time.
The above arguments should also somehow be considered in their judgments by the Constitutional Court. The choice before it is fairly complex however it is specifically on this choice that a considerable percentage of that progress which the young State of Ukraine aspires to.
From the formal-juridical point of view (Article 83 of the Main Law), those forming a parliamentary coalition in Ukraine are deputies of a faction.
As for individual National Deputies, they can express their solidarity with the founders of the coalition through free votes (Article 80 § 2 of the Constitution). On the other hand, it is the very possibility of free which makes them potential participants of any constituent procedure.
If we bear in mind that National Deputies represent the nation as a whole and do not have imperative mandate, that they are elected by the people not to the coalition, but to the Verkhovna Rada, that both party members and non-members have the right to be added to the candidate lists, that after their vow National Deputies have the right to freely vote on any issue, that the sole function of a coalition is to form a government, then the question of individual National Deputies being part of the makeup of a coalition is virtually automatically resolved. In summary one sees a rule – principle: the coalition is formed by corporate subjects – parliamentary factions, however individual National Deputies may join it.
Put more simply, permission for individual National Deputies to be part of the coalition is no more than permission to support through personal voting the candidacy of Prime Minister and members of the government. This unqualified right is enjoyed by National Deputies from the moment that they make their oath. The forms of deputy activity are verbal and textual argumentation, as well as voting for or against any issue. And no faction may have any imperative power to influence the use of these forms.
Furthermore, even the “classic” membership of a National Deputy in a coalition through a faction does not oblige him or her to automatically vote according to the coalition choice. Even being in a faction which is a part of the coalition, a deputy has the right to not vote for a specific candidate for Prime Minister. However if that is the case, the right to join the coalition to promote the creation of the government should be enjoyed by each parliamentarian.
Otherwise the formation of a government can become either impossible altogether or excessively dependent on corporate agreements of only the “influential” National Deputies. This is illogical since according to the Constitution each National Deputy with relation to the people of Ukraine has the equal rights as other National Deputies. For this reason the Constitution envisages that decisions be taken through individual deputy choice.
A really achievable level of development of Ukraine’s political system inclines the national constitutional model to a relatively simply form of people’s representation (without excessive passions and ambitions). This is sufficient argument to legally formalize individual members in the coalition through norms of the Verkhovna Rada Regulations. All the more so since as we noted at the beginning, the Constitution places the responsibility on the Regulations for not only specifying but also determining the principles of activity of a coalition of parliamentary factions. Of course for this it would be highly expedient to turn the Regulations into a classic law.
A strict corporate model for forming the government without recognizing the possibility of individual membership in the coalition should be deemed dangerous for Ukraine’s progress. The arguments for this have been presented above.
10 May 2010
As well as in the links below, there are responses to the above arguments under Point of View
The right to liberty and security
Donetsk Memorial: Donetsk Regional Prosecutor is flouting the Constitution
The human rights NGO Donetsk Memorial has circulated an open letter to the Prosecutor General, copied to the European Committee for the Prevention of Torture. It concerns the actions of the Donetsk Regional Prosecutor which Donetsk Memorial state are in breach of the Constitution and contain elements of a number of crimes. Despite numerous appeals to take measures required by a court ruling which has come into force, declaring the detention of Mr O. by officers of the Mariupol UBOZ [Department for Fighting Organized Crime], the Donetsk Regional Prosecutor is continuing to insist on their right to act in breach of a court ruling.
Mr O appealed against the above-mentioned detention and on 18 June 2009 the Voroshylovsky Court in Donetsk found the detention unlawful. This was upheld by the Donetsk Regional Court of Appeal on 11 August that year.
From that moment the court ruling came into force and the Prosecutor was obliged to determine liability of those people who had committed a criminal offence by unlawfully detaining Mr O. This offence is covered by Article 371 of the Criminal Code on knowingly detaining a person unlawfully, and can carry a sentence of restriction of liberty or a ban on holding certain posts.
The Donetsk Regional Prosecutor, the letter states, has not only ignored the court ruling, but carried out another check of the circumstances behind Mr O’s detention and, unlike the court, found no lements of an offence.
The authors point out that this behaviour is in breach of Article 124 of the Constitution which states that justice is administered only by the courts. Yet the Prosecutor, with their decision, has reviewed (annulled) the court ruling. There are also grounds for assuming that the check was carried out in a slapdash and cursory fashion, since Mr O. was not even questioned.
The court found the quality of the Prosecutor’s check inadequate and stated that the circumstances of O’s detention as a person suspected of having committed a crime were trumped-up and unlawful.
In the letter to the Prosecutor General, the Head of Donetsk Memorial, Oleksandr Bukalov writes:
“In view of the public importance of the issue involving Prosecutor’s Office staff covering up unlawful actions by the police, I am turning to you with this open letter. The letter will also be sent to the Human Rights Ombudsperson and to the European Committee for the Prevention of Torture. I can assure you that your response to this letter (or lack of response, or sending of the letter for a check by the Donetsk Regional Prosecutor) will be widely circulated.
MIA sticks to its guns over named tickets
The Ministry of Internal Affairs has sent a letter to the Ukrainian Helsinki Human Rights Union regarding its moves to reintroduce named railway tickets.
Despite the fact that the Deputy Minister of Transport and Communications, V. Korniyenko, recently stated that there is no ticket touting at present and that there is no need for named tickets, the MIA remains adamant that Ukrainians are still engaging in such ticket speculation.
Another interesting argument given for introducing named railway tickets is that this will supposedly help in holding EURO 2012. Interesting, in the first place, since specialists predict that the move will lead to massive queues, and in the second, the football club has been held in a number of countries and none has introduced such a system.
The MIA letter also claims that Ukraine, in order to observe rights during railway transportation, must equal such universally known countries in observance of human rights” as the Russian Federation, Kazakhstan, Moldova and Armenia.
The Ukrainian Helsinki Human Rights Union stresses again that police treatment of all passengers like potential criminals is humiliating and yet again demonstrates that the MIA is founding its activities on disrespect and infringements of fundamental human rights.
Freedom of conscience and religion
Important Precedent from the Rector of the Ukrainian Catholic University
First some words about the main intrigue
On 18 May Fr Borys Gudziak, Rector of the Ukrainian Catholic University [UCU], received a visit from an officer of the SBU [Security Service]. His purpose was, firstly, to convince the Rector that it was the latter’s duty to deter students from possible “unlawful actions of a political nature”, and secondly, to get his signature on a letter addressed to him from the SBU management.
He said that the signature would confirm that the Rector had been informed and warned.
Since the SBU officer refused to leave the Rector the original or copy of the letter, Father Borys Gudziak refused to sign it. He took advantage of the ongoing General Assembly of Federations of European Catholic Universities to widely circulate a memorandum describing what had happened.
The event gained a great deal of publicity. This demonstrates that despite considerable disillusionment in the situation in the country, Ukraine has a lot of friends who are genuinely concerned for his fate. It also, however, became clear that the entire incident needs to be properly thought through.
We can be certain that a good many rectors in Ukraine, hearing about Father Gudziak’s act, will shrug their shoulders: “What’s the big deal? I always sign such letters, that’s the way things are”.
Indeed, that was the way in Soviet times. Yet must it be like this today? If the concern of the SBU leadership is warranted, and there was nothing unlawful in the letter, the person it was addressed to has the right to keep at least a copy of it.
Suspicions regarding possible provocation arise precisely when you have to read a letter which the SBU officer won’t let out of his hands, and put your signature to it which can later be interpreted as they please. This procedure is an overt relict of the Secret Police era which is for some reason being assiduously preserved by the SBU.
What has not been entirely erased from our memory is how the head’s signature became a hook dangled to frighten him with. The daring act of the Rector of at least one university in Ukraine is a precedent which should force us to think about the humiliating and anachronistic nature of the very procedure.
There is only one public remedy against that which wishes to remain secret, and that is to make everything open.
Some may ask why there is so much fuss over an “innocent” visit from an SBU officer. Well, that question should be answered by those who actively glorify Stalin, build monuments to him, implement Putin’s plan for “pacifying” Ukraine (“coerced love”), while protests against this are called “destabilization” and “unlawful acts”.
Putin’s regime is based on total power of the FSB. It is they, the FSB, who have made democracy in Russia so “controlled” as to be ephemeral. Therefore anybody wishing to clone that regime in Ukraine should be prepared for people’s instinct for danger being aroused.
The FSB inherited from the KGB the practice of intimidating those who didn’t buckle under, of persecuting political opposition and reprisals against those who refused to bow to the will of the Security Service. The Ukrainian government would, it appears, now be planning to follow in those same steps.
So what then should we expect from the SBU when our university in its commitment to moral principles and Christian values must be in opposition to the arbitrary rule, spinelessness and corruption which have spread like a terrible cancer through today’s Ukraine?
What should those who find themselves in the “zone of public risk” expect? Ministerial inspections to order? Visits from the tax inspector? Or various acts to provoke trouble and aimed at discrediting us?
In the Ukrainian Catholic University, as in any other university, there is also psychological opposition between the administration and the students. The basis of this lies in the inevitable opposition of interests between those who govern and those who are governed.
Yet in UCU fortunately there is no difference between both sides when it comes to upholding human dignity. Let the reader themselves try to count how many universities in Ukraine have rectors prepared to sacrifice their own position so that the students’ freedom to express their will, including protest, is safeguarded in his institution.
At this point I cannot refrain from criticizing the previous “orange” leadership.
A working group of eight universities, including UCU, drew up a Concept Framework for University Autonomy which was presented for consideration to the higher leadership. It was not approved – clearly officialdom’s fear of losing control of the situation in higher educational institutions got the upper hand.
Where is their control today? And how are universities for whom autonomy from the authorities is the basis of their identity to fare now? After all, the Ukrainian Catholic University can only fulfil its mission born of freedom in conditions of freedom.
I would like to ask one key question: how many trials do we have to still go through before we understand that the old Soviet model of subjugating university rectors by making them dependent is a relic of a totalitarian era which we have supposedly put aside?
It’s not just that you can’t possibly fit into the Bologna System with this model. We look like some prehistoric reptiles that have sprung up suddenly at a modern aqua park. If we so assiduously retain this model, is it so surprising that the prehistoric era is also returning?
Myroslav Marynovych, Vice-Rector of the Ukrainian Catholic University, former political prisoner
Disturbing Security Service Visit to the Ukrainian Catholic University
The following Memorandum was issued by Fr. Borys Gudziak, Rector of the Ukrainian Catholic University to Rectors of other Catholic universities presently meeting in Lviv. The information regarding a visit from the SBU, which as Fr. Gudziak points out, is the successor to the Soviet KGB, is extremely worrying and warrants attention from all those concerned about the development of democratic institutions and protection of fundamental human rights, such as freedom of conscience and freedom of expression, in Ukraine
19 May 2010
to Universities in the West
Memorandum Regarding the
Visit to UCU of a representative of the
Security Service of Ukraine (SBU) (former KGB)
(responsible for contacts with Churches)
18 May 2009, office of the rector, 9:50-10:34
At 9:27 in the morning Fr. Borys Gudziak received a call on his private mobile phone from a representative of the Security Service of Ukraine requesting a meeting. The meeting was scheduled for 20 minutes later at the rectorate of UCU. This official had had contacts with the UCU rectorate a year ago at the time of the visit to the university of the then President of Ukraine Viktor Yushchenko. He had made a visit to the rectorate in the late afternoon on May 11 with regard to a request of the Ecumenical and Church History Institutes to sign an agreement to use the SBU archives. At that time members of the rectorate were away from the office. He had, what Dr. Antoine Arjakovsky, director of the Institute of Ecumenical Studies, called a “very good meeting.”
Upon arrival on May 18 in a polite manner the agent related that certain political parties are planning protests and demonstrations regarding the controversial (and in some cases inflammatory) policies of the new Ukrainian authorities. Students are to be engaged in these protests. There is a danger that some of these manifestations may be marred by provocations. He stated that, of course, students are allowed to protest but that they should be warned by the university administration that those involved in any illegal activities will be prosecuted. Illegal activities include not only violent acts but also, for example, pickets blocking access to the work place of government officials (or any protests that are not sanctioned by authorities).
After his oral presentation the agent put on the table between us an unfolded one-page letter that was addressed to me. He asked me to read the letter and then acknowledge with a signature my familiarity with its contents. He stated that after I had read and signed the letter it would be necessary for him to take the letter back. Since I could see that the document was properly addressed to me as rector (I also noticed that it had two signatures giving it a particularly official character) I replied calmly that any letter addressed to me becomes my property and should stay with me -- at least in copy form. Only under these conditions could I agree to even read the letter (much less sign).
The agent was evidently taken back by my response. It seemed that the situation for him was without precedent because in my presence using his mobile phone he called his (local) superiors to ask for instructions on how to proceed. The superior refused permission to leave me either the original letter or a copy, saying that the SBU fears I “might publish it in the internet.” I questioned this entire procedure and the need for secrecy and refused to look at the letter and read its contents. The young official was disappointed and somewhat confused but did not exert additional pressure and did not dispute my argumentation.
Our conversation also had a pastoral moment. I cautioned the agent of the fact that the SBU as the former KGB, with many employees remaining from the Soviet times, has a heavy legacy of breaking and crippling people physically and morally and that he as a young married person should be careful not to fall into any actions that would cause lasting damage to his own identity and shame his children and grandchildren. I sought to express this pastorally as a priest. To his credit he both acknowledged the past and declared his desire to serve the needs of Ukrainian citizens. He also asked that I indicate to him if I feel that he is exercising improper pressure.
Finally, I expressed my and the general population’s profound disappointment that the work of the SBU is so uneven, that security and police officers live lavishly on low salaries because they are involved in corrupt activities, and that the legal rights of citizens and equal application of the law are severely neglected. I gave the recent example of my cousin, Teodor Gudziak mayor of Vynnyky, who in February 2010 (three days after the election of the new president) was arrested in a fabricated case of bribery that was set up by a notoriously corrupt political rival and former policemen through the regional and city police. Despite the fact that two weeks before the fabricated affair the mayor, based on a vote of the town council, had given the SBU a video of plainclothes policemen breaking into his office and safe in city hall in the middle of the night and using town seals on various documents the SBU took no action. (The leadership of the Church, specifically Cardinal Lubomyr Husar, fears that by manipulated association this case may be used as a devise to compromise the rector of UCU and the whole institution which has a unique reputation of being free from corruption.) I also related that I had reliable testimony and audible evidence that my phone is tapped and has been for many months.
The population of Ukraine continues to fear and distrust both state security and police personnel because of the woeful track record of law enforcement and because of the diffuse practice of police intimidation of honest politicians, journalist, common citizens and the wonton extortion practiced by security institutions and police with respect to middle and small business. I asked the young agent to convey these concerns to his superiors. I had the impression that personally he is open to moral argument but that he also was simply doing his job. It was clear to me that he was dutifully “following orders.”
During our conversation the agent asked me about the imminent (May 20-22) General Assembly of the Federation of European Catholic Universities (FUCE) that will be hosted by UCU in Lviv. He characterized it as an important event (it has received considerable publicity) and asked about the program and whether it is open to the public. It was clear that he would have been interested in participating in the proceedings. I said that the main theme, “Humanization of society through the work of Catholic universities,” was announced in a press release as will be the outcome of the deliberations. The working sessions of the university rectors, however, are not open to the public. I explained that the 211 members of the International Federation of Catholic Universities (IFCU) and the 45 members of FUCE follow closely the development of the only Catholic university in the former Soviet Union. They will be monitoring the welfare of UCU, especially since in Japan in March at the annual meeting of the Board of Consultors of IFCU I had the opportunity to describe some of our socio-political concerns and the threats to the freedom of intellectual discourse (imposition of Soviet historical views, rehabilitation of Stalin and Stalinism, to whom a new monument was unveiled in Zaporizhzhia 5 May 2010) and new censorship of the press and television that are incompatible with normal university life.
Subsequently, as had been arranged at the beginning of the meeting, I called in the UCU Senior Vice Rector Dr. Taras Dobko to whom the official repeated the SBU’s concerns.
Besides noting the SBU’s solicitude for stability in Ukrainian society there are a few conclusions to be drawn from the encounter and the proposals that were expressed:
1.Signing a document such as the letter that was presented for signature to me is tantamount to agreeing to cooperate (collaborate) with the SBU. The person signing in effect agrees with the contents of the letter and their implication. In KGB practice getting a signature on a document that was drafted and kept by the KGB was a primary method of recruiting secret collaborators.
2.Such methods have no known (to me) precedent in independent Ukraine in the experience of UCU and of the Lviv National University whose longtime rector (and former Minister of Education, 2008–10) Ivan Vakarchuk I consulted immediately after the meeting. These methods were well known in the Soviet times.
3.The confiscation of the letter after signature makes the letter and signature instruments to be used at the complete discretion of the SBU
4.The possible scenarios for the exploitation of such a document include the following:
a.) In case of the arrest of a student the SBU could confront the rectorate and charge that the university was informed of the danger to students and did not take necessary measures to protect them from violence or legal harm. In this case the university administration could be charged with both moral and legal responsibility. A charge with legal ramifications could become an instrument to try to force the university to compromise on some important principle (freedom of expression, forms of social engagement and critique, even religious practice, all of which have precedent in recent history). Furthermore, the authorities could use such a pretext to exert a high degree of pressure on the university to curb any and all protest by students.
b.) After a hypothetical arrest of a student or students the students and their parents as well as other members of the university community could be shown the document with which the administration was warned and counseled to curb student activities. Since the administration did not stop the students from the activities that became the pretext for the arrest, parents or others could draw the conclusion that the university does not have adequate concern for the welfare of its students. This would be a most effective way of dividing the university community and undermining the university’s reputation among its most important constituents–students.
5.The apparent genuine surprise of the agent at my refusal to do as requested could mean that he is not used to such a reaction. He had explained to me that he works with clergy on a regular basis. It could be assumed that other clergy (who work with youth, students, etc.) have been approached and that they have not refused to sign such documents.
6.Measures of this nature create apprehension and unease. They are meant to intimidate university administrations and students. They are part of a whole pattern of practice that is well known to the Ukrainian population. The revival of such practices is a conscious attempt to revive the methods of the Soviet totalitarian past and to re-instill fear in a society that was only beginning to feel its freedom.
7.Since only two of the approximately 170 universities of Ukraine have been voicing there protest regarding recent political and educational developments and many rectors have been marshaled/pressured to express their support regarding the turn of events, it is clear that in recent months fear and accommodation are returning to higher education at a rapid pace. It can be expected that UCU will be subject to particular attention and possible pressure in the coming months. The solidarity of the international community, especially the academic world, will be important in helping UCU maintain a position of principle regarding intellectual and social freedom.
8.Speaking and writing openly about these issues is the most peaceful and effective manner of counteracting efforts to secretly control and intimidate students and citizens. As was apparent during this incident, state authorities are particularly sensitive about publicity regarding their activity. Information can have a preemptory, corrective and curing role when it comes to planned actions to circumscribe civic freedom, democracy, and the basic dignity of human beings.
It should be noted that on 11 May 2010, when Ukrainian students were organizing protest activity in Lviv as well as Kyiv, a representative of the office of Ihor Derzhko, the Deputy Head of the Lviv Regional Administration responsible for humanitarian affairs called the rectorate and asked for statistics on the number of students participating in the demonstrations. UCUs response was that the uniersity does not know how to count in that way.
Please keep UCU and all the students and citizens of Ukraine in your thoughts and prayers.
Fr. Borys Gudziak
Rector, Ukrainian Catholic University
19 May 2010
Freedom of expression
Flagrant violations of key human rights
On 11 May the political opposition, headed by Yulia Tymoshenko, decided to hold a rally in Kyiv to protest against the actions of the government and President Yanukovych. Members of the Bloc of Y. Tymoshenko [BYuT], VO “Svoboda” and other opposition forces from various regions of the country planned to travel to Kyiv, trying to hire coaches and private vans.
Not all were able to do this, with the same things happening in various parts of the country. As the Kharkiv regional branch of the party “Reform and Order” recounts, 11 transport hire companies refused to contract agreements with them. They cited threats from DAI [the traffic police] that they would not receive licences for 2011.
We have received similar reports from Lviv, Khmelnytsky, Poltava and Kremenchuk, while the Ternopil regional branch of BYuT has also complained of pressure on transport hire companies. The leadership of VO “Svoboda” in the Lviv region reported that from Lviv 400 people where supposed to set off in eight coaches, yet only five got to Kyiv and that was with great difficulty. Coaches also did not set off from Stryj, Drohobych, Skope. Those who could, got to Kyiv on normal transport.
It is also know that in Kharkiv DAI officers removed the technical plates [i.e. MOT] from 2 minivan drivers who were supposed to transport 35 BYuT members to Kyiv.
The identical nature of the bans and obstructions throughout Ukraine give grounds for assuming that the instructions came from Kyiv.
Such actions by the Ministry of Internal Affairs are a flagrant violation of Article 42 of the Constitution regarding the right to carry out business activities, as well as fundamental rights to freedom of speech and freedom of peaceful assembly.
Violations of fundamental rights and freedoms are unprecedented in Ukraine over the last five years and entirely inappropriate from the point of commonsense.
In this way the introduction of censorship on television channels and flagrant violations of fundamental civil rights are developing into an extremely dangerous number of events which, if they continue in this fashion, will leave Ukraine outside the civilized world. No Ukrainian government can have an interest in this prospect.
Law enforcement agencies
It has been almost a month and a half since the decision was taken to dissolve the Department for the Monitoring of Human Rights in the Work of the Police [the Department]. During that time there have been voices heard for and against. There was hope that the decision would be revoked, then disappointment. There were appeals from civic organizations, statements, address on radio and TV, press conferences and even a recommendation from the President not to destroy the Department. There were on the other hand gleeful articles that it was being dissolved and a lot of dirt hurled at the Human Rights Assistants to the Minister. There were meetings with ambassadors and representatives of international organizations. There was also the appointment by the Minister of Internal Affairs of the head of a public council (not clear which) and a statement that the MIA would be creating public councils at the level of regional and district departments.
The list can be continued. There were a lot of words, however reading them, you understand that they conceal the true processes, twist many facts providing assessments which are far from reality. It becomes clear that those who write about the Department know little about it.
The main problem is that the current leadership of the Ministry know so little and this makes it possible to circulate myths and overt lies, and slander those who worked in it.
Since I was directly involved in the creation of an action strategy for this department, its creation and work, I believe that the MIA management should know the history from first hand, and not from unprincipled advisers. This text is not an attempt to whitewash the Department, but is aimed at giving an account of the entire system of human rights monitoring in the work of the police. I cannot claim that it attained top peak efficiency. I will describe here how it was conceived and created, how it worked, what it was able to achieve, what it was not. It is about the Human Rights Public Councils, the mobile groups, public hearings, and the people who helped the Department, working together with it.
Stage 1: The appearance in the Ministry of Internal Affairs [MIA] of a strange-sounding post “Adviser on Human Rights and Gender Issues to the Minister” - 2004
The creation of this post against the background of the election campaign in autumn 2004 went almost unnoticed. It came about as the result of a joint meeting in 2003 between the Human Rights Ombudsperson and the MIA reviewing cases of flagrant human rights violation in the work of the police. One of the recommendations was to create the post of Adviser.
The functional duties of Adviser, as well as the requirements for the post, were drawn up together with the Head of the Office of the Minister, V. Shapoval. The main rights and duties included:
- analysis of the situation within the police regarding observance of legislation in the area of human rights and gender issues;
- coordination of cooperation between the MIA and international organizations (UN, the Council of Europe, the European Commission, the International Labour Organization, OSCE, the International Organization for Migration and others) and consultations with their specialists, representative offices and sections responsible for overseeing observance of international norms on human rights and gender equality;
- consultations with members of civic organizations, including human rights and women’s organizations and involving them in joint measures;
- informing the management of the Ministry on recommendations from research, national and international theoretical and practical conferences on human rights, gender equality;
- supporting regular contact with the Human Rights Ombudsperson, profile committees of the Verkhovna Rada, the Ministry for the Family, Children and Youth, other executive bodies within the constraints of the above-mentioned competence;
- monitoring of the situation regarding observance of human rights and the introduction of gender issues into the work of the MIA;
- promoting the drawing up and implementation of human rights and gender equality programmes in MIA educational institutions (www.umdpl.info )
Even then it was clear that the introduction of this post should bring something new into the work of the police; that the work needed to be systematic and not just reaction to complaints and appeals from members of the public.
Fairly serious qualifications were demanded of the holder of this post in order to ensure that the person could effectively carry out the duties involved. These included a higher law education; fluent command of one foreign language recognized in international organizations; practical human rights defence experience of at least five years; research experience; academic works on human rights and gender equality.
A post’s a post, but the main thing is what was done in 2004-2005.
Dialogue was initiated and contacts established with civic and international organizations. That was at a time when in the MIA they were wary of civic organizations, especially those like the Kharkiv Human Rights Group [KHPG] and the Ukrainian Helsinki Human Rights Union [UHHRU]. Appeals and letters from the latter organizations aroused genuine indignation that anyone should be “interfering” with their fight against crime.
A fair number of organizations were also wary of even the possibility of dialogue with the police. The first step was therefore to break down stereotypes and suspicion.
What now seems simple – invitations and participation of the Adviser in civic organizations’ measures, including those where criticism was voice of the MIA; coverage of the MIA’s position; provision of information sought by civic organizations, etc – was then worked on step by step with a certain breakthrough in the system of interaction between the police and the public.
This was interaction of a new kind which envisaged dialogue and open and systematic criticism of the police by the public.
Meanwhile there were radical changes in the management of the Ministry and at the same time in the attitude to cooperation with civic organizations. A major role in this was undoubtedly played by Yury Lutsenko as Minister. However there were also public expectations of positive change, for the restructuring of the police on principles of democracy and openness. There was also willingness to take part in the creation of new structures and models of management.
Stage 2: Mobile groups for monitoring human rights observance in the work of the police – 2005
The issue of public control over the work of MIA bodies had long been the focus of attention of human rights organizations, and the fact that such public control was needed was generally undisputed. So was the need for its implementation, however the question arose, how this should be done.
Through asking for information from internal affairs bodies? This was tried, but the information even where given, was not comprehensive. Public participation in joint measures? The traditional form was participation in protecting public order. These were the same voluntary police assistants that to some extent turned into a parody of cooperation. Studies of public opinion regarding the police showed that confidence was gradually increasing regardless of the quality and results of work. The figures were also several times higher than in other European countries.
The police remained a closed institution and that needed to be changed. Within the constraints of current legislation: the Law on the Police, the Criminal Procedure Code, the Law on Civil Control over Military Organization and Law Enforcement bodies, and others.
An interesting idea was conceived and developed in Kharkiv. This city in general played a very important role in the creation and development of the system of human rights monitoring in the work of the police. It was a positive role, that of initiator, lobbyist, human resource.
The idea of developing mobile groups on monitoring human rights in the work of the police was initiated by the Kharkiv Human Rights Group together with the Kharkiv National University of Internal Affairs.
There were extremely serious problems with human rights abuse in places of police detention - temporary holding facilities [ITT], special reception units for those under administrative arrest, units for those detained for vagrancy. It was these that became the focus of public monitoring.
, From 2004, on an experimental basis, mobile groups functioned in three regions [oblasts] – Kharkiv, Sumy and Poltava regions (pursuant to MIA Order No. 286, 2004).
In 2005, at the suggestion of the Kharkiv National University of Internal Affairs, and in implementation of a Ministerial instruction, their experience was thoroughly studied by the Minister’s Adviser, with a report being presented on the results of this study. This resulted in MIA Order no. 536 which stipulated the rules of procedure for mobile groups anyway in the country.
Mobile groups were created in 2005 on the basis of departmental academic institutions with one group for a specific oblast or railway according to the distribution. Personal liability for this process was borne by the deans of the MIA academic institutions. An Order envisaged enclosure in the mobile groups of specialists from permanent staff with experience of practical and academic work in the area of observance of constitutional civil and human rights and protection of their legitimate interests. The Order also envisaged inclusion in each group of two representatives of civic human rights organizations, registered according to established procedure. This involvement was decisive.
A lot can be said about the difficult process of getting these groups off the ground, the lack of acceptance by departments of the MIA in a number of oblasts. There were also difficulties in cooperation with civic organizations, and a lack of professionalism in their work, a lack of understanding of the principles of interaction and attempts to interfere in issues which concern criminal investigation and investigative operations; as well as preparation of ITT before the arrival of a mobile group. Organizational difficulties connected with mobile groups being linked to academic institutions which are only in 12 oblasts. Difficulties in organizing trips – time, transport, fuel; and in preparing reports sent to three addressees – the Head of the division in which the check was carried out, to the Head of the Department of the MIA and to the Office of the Minister. There were problems in mutual relations with the Prosecutor’s Office with this resulting in some oblasts with instructions prohibiting the functioning of mobile groups.
However the work had begun. Civic organizations had become more active in the oblasts. From 2006 training seminars began for staff of civic organizations and police stations on organization of mobile groups, the powers, rights and duties of their members. In cooperation with the Office of the OSCE Project Coordinator in Ukraine and the International Renaissance Foundation, a manual entitled “Mobile groups on monitoring human rights in the work of the police” was produced which is used to this day. There was the will to make them effective.
In 2006 a new MIA Order No. 894 stopped the linking of mobile groups to MIA academic institutions. What was very important was that this was registered with the Ministry of Justice.
In 2008 amendments to this were introduced making it possible to carry out night and spot visits, as well as talk with detainees with a maximum level of confidentiality (MIA Order No. 389 www.umdpol.info ).
The amendments were to 4.1: “In accordance with the MIA normative legal acts, at any time without prior arrangement, to enter and examine territory and premises of bodies and divisions of Internal Affairs bodies, including premises of police stations, as well as immediate access to places for holding those detained, brought for questioning or remanded in custody, detained according to administrative procedure, as well as people serving administrative arrest.”
4.2: “According to current legislation, to hold talks with the maximum possible level of confidentiality with those detained, brought for questioning or people serving administrative arrest, in order to identify any violations of the norms regarding their treatment, procedural periods and the grounds for their detention, being brought in for questioning, remanded in custody; informing them of the rights of people detained, brought for questioning or remanded in custody, as well as other rights as envisaged by Ukrainian legislation”.
The grounds for these amendments were in the UN Optional Protocol to the Convention against Torture OPCAT ratified by Ukraine in 2006. This envisages the creation of national preventive mechanisms against torture. These are based on the principle of visits to places of confinement by not only international experts, but also those from within the country. Such places of confinement include not only ITT and special reception units, but also reception and distribution units for children; preliminary detention cells in police stations, even police offices where people are held against their will.
The number of visits rose sharply each year: 86 in 2006, 145 in 2007, 353 in 2008 and 422 in 2009. There was also an improvement in the quality of monitoring and professional level of the civic members of the mobile groups.
There was also an undeniable improvement in the situation in ITT. Despite the fact that there are still a lot of problems and the material level in many of them doesn’t even meet national, let alone European standards. Improvements include the appearance of bed linen; in detainees receiving food; using quartz in cells as a means of preventing the spread of tuberculosis; a help line in the courtyard where detainees have their walk; information about rights and duties of detainees placed directly in the cells. Toilets are being built, and bunks removed. ITTs which are seriously substandard are being closed. In July 2008 the issue of the work of mobile groups was reviewed at a meeting of the MIA Board.
It is not possible to measure what has been done in words like much or little. If we give an assessment like the European Committee for the Prevention of Torture, then we can speak of changes for the better. One of the indicators of positive change was the fact that the experience of organizing the mobile groups on human rights in the work of the police was studied and adopted in other countries. When in 2009 members of the mobile groups met at the Second East European Conference organized by the Kharkiv Institute for Social Research, in cooperation with the Open Society Institute, the OSCE Project Coordinator in Ukraine and with the Department for the Monitoring of Human Rights in he Work of the Police, it transpired that such monitoring institutions had been created in Bulgaria, Armenia, Moldova and a number of other countries. Furthermore, in 2009 such experience began being applied within Ukraine by the Department for the Execution of Sentences.
This experience gained the support of the UN Human Rights Council, the UN Committee against Torture, from the Council of Europe Human Rights Commissioner, Council of Europe and European Community specialists.
We can ask if it’s possible to make the work of such mobile groups more useful and the answer will be affirmative since there are no limits to improvement. The main improvement does not involve making visits unexpected, so that the heads of district stations don’t know where the group is going. The main thing is to react to the comments contained in the report, on eliminating shortcomings (and many of them can be eliminated by the institutions themselves) so that this is under the permanent control of the MIA Department’s managements, and so that the public have access to information about the results of the response.
The following civic organizations have members delegated to mobile groups: the Kharkiv Institute for Social Research; the civic organization “Spivdruzhnist” (the Crimea); the Kharkiv Human Rights Group; the Vinnytsa Human Rights Group; the Odessa Human Rights Group “Veritas”; Donetsk Memorial; the International Women’s Human Rights Centre La Strada – Ukraine, the Rivne Branch of the Committee of Voters of Ukraine; the Union of Drivers of Ukraine (Rivne); the International Human Rights Society – Ukrainian Secition (Kyiv, Ivano-Frankivsk, Dnipropetrovsk); the Chernihiv Women’s Charitable Centre; the Civic Network OPORA (Lviv); Men against Violence (Luhansk); the civic organization “Dobrobyt” (Mykolaiv); the Dnipropetrovsk Regional Civic Organization “People’s Control”; the Poltava Civic Organization “Press Club” and others.
So what is wrong with a mechanism for exercising public control if it works? – if there is interest from both the police and the public? - if criticism is acted on? Nothing wrong and it needs to be developed further. Yet will there be the wish and the political will for this? This is at present in question.
Stage 3: The Public Council on Human Rights attached to the MIA, and public councils attached to regional departments of the MIA
According to Article 1 of the Constitution Ukraine is a democracy. The characteristic feature of democratic governance is public involvement in the process of formation and implementation of State policy. This is enshrined in Article 38 of the Constitution which states that “Citizens have the right to take part in the administration of State affairs…” One of the forms of this public participation is seen in public councils.
The idea of creating an MIA Public Council on Safeguarding Human Rights in Internal Affairs bodies arose in autumn 2005. Active cooperation with civic organizations, thanks to the work of the Adviser to the Minister on Human Rights and Gender Issues, constant participation in measures carried out by civic organizations, as well as a huge number of questions which civic organizations had to the MIA, led to the idea of regular roundtables of the MIA management and civic human rights organizations. While preparing for the first roundtable (November 2005) it became clear that interaction with civic organizations needed to be placed on a more regular, and mainly, more systematic footing and this was seen as a Public Council.
A major role in drawing up the documents of the Public Council was played by staff of the Office of the Minister and it’s Head whom we have already mentioned – Volodymyr Shapoval. They took direct, active and interested participation in this work.
The process of creating the Public Council on Human Rights attached to the MIA, and public councils attached to regional departments of the MIA took almost three years (2005-2007). It then activated again at the regional (oblast) level in 2008 in connection with the creation of the posts of Human Rights Assistants to the Minister, since representatives of human rights organizations on the one hand, and the management of regional department of the MIA on the other, proved unprepared for cooperation and joint work. Yet the difficulties, duration and sometimes even conflict with this process cannot negate its importance.
On 28 December 2005 Order No. 1243 on the creation of the Public Council was signed, and its first meeting took place the next day. This meeting set out the main directions of work, elected authorized representatives of the Council according to these directs, as well as a Co-Chair, and made proposals regarding Regulations and forms of work.
According to the Regulations, the organizational forms of work of the Council are its meetings, the meetings of the working and expert groups created by the Council in response to need. Meetings can be called on the instruction of the Co-Chairs of the Council by the Executive Secretary and the Council Secretary.
MIA officials enforce decisions of the Council which are of a recommendatory nature within the boundaries of their competence and in accordance with MIA normative legal acts.
The directions chosen as priorities for the work of the Public Council were:
- Civil rights during detention, detective inquiry [diznannya] and criminal investigation;
- Safeguarding human rights during elections;
- The right to peaceful assembly;
- Human rights education;
- Examination of complaints about police action. An institution for complaints;
- Prevention of domestic violence, ill-treatment of children, human trafficking;
- Gender equality in the work of the Internal Affairs bodies;
- normative legal and method backup for the work of the Council;
- The rights of migrants and refugees;
- Respect for privacy;
- The rights of minors.
Of principle importance was the norm about the recommendatory nature of Public Council decisions. This meant that the MIA manage could accept them as suggestions for action, but didn’t have to. Otherwise the members of the Public Council needed to seek means of influence on the management of the relevant body of the MIA in order to convince them that the proposed actions were necessary.
An even more fundamental question was the personal makeup of the Council. When it was first formed, the sole wish was to create it from members of the most well-known and influential civic organizations which could criticize the police in a professional manner, helping them move towards positive change. The first members were: Arkady Bushchenko; Volodymyr Chemerys; Oles Doniy; Dmytro Groisman; Olha Kalashnyk; Ihor Popov; Roman Romanov; Andriy Sukhorukov; Andriy Toropilo and Yevhen Zakharov, as well as a representative of Amnesty International in Ukraine. Through the process of rotation, the following worked on the Council: Oleksandr Bukalov; Denis Kobzin; Henadiy Tokarev; Ruslan Topolevsky; Volodymyr Yavorsky. All are professionals in their field.
The principle was clearly followed that there should be no politicians, businessmen or representatives of the Church. New members had to be recommended by at least two members of the Council. Rotation of public representatives was a matter for the public alone. Admittedly when they wanted to exclude Ihor Popov [after he left his post as Head of the Committee of Voters and joined the President’s Secretariat – translator] and Oles Doniy [now a National Deputy – translator], both categorically refused to step down.
However the process of forming public councils showed that among the heads of the Central and Regional Departments of the MIA there was no unanimity on the principles of involvement on councils of member of the public, their role in interaction between MIA bodies and civic society. It was for this reason that these issues were discussed on 28 April 2006 during a meeting of the Public Council and set down in MIA Instruction from 15.06.2006 No. 499 “On the Rules of Procedure for Forming and Approving the Makeup of Human Rights Public Councils attached to the Central and Regional Departments of the MIA” http://umdpl.info/index.php?id=1238068149.
Through this instruction the heads of the Central and Regional Departments of the MIA were to involve representatives of the MIA Public Council in the process of formation of public councils confirmed through instructions for the relevant oblast. The formation of final lists of members of councils was scheduled for 01.08.2006, with there being a requirement to exclude from the lists people with no connection with the human rights protection sphere. No less important was the fundamental provision regarding the councils being made up of at least two thirds representatives of human rights organizations, activists of the human rights movement and academics.
Some of the results: regular monitoring and the introduction of a normative base on the police; participation in the work of staffing and attestation commissions attached to the Central and Regional Departments of the MIA; carrying out, together with police management, reception of members of the public; drawing up and implementing an Action Plan on Countering Racism and Xenophobia up to 2009; drawing up a Programme for Ensuring Gender Equality in Police Bodies; training of more than 110 mobile group experts; more than 50 training seminars for investigators, operational officers, members of the “Berkut” Units, ITTs, and so forth. “And so forth” covers the work of more than 120 organizations within councils at regional and national level.
Incidentally in 2006 it was at a meeting of the Public Council that members of human rights organizations were able to convince the former management of the MIA of the need to reject the use of passport details and people’s passport when buying railway tickets. Then it proved possible. Will it prove so in 2010? Who will read the Minister the appeals from civic organizations on this issue? Just in case, here is the URL (in English): http://helsinki.org.ua/en/index.php?id=1271166079 )
The Public Council could not be viewed as a body for swift response to information (or its lack) on human rights violations by the police; that could not be the urgent grounds for holding a meeting. Meetings of the Public Council consider issues involving systematic violations of human rights by staff of Internal Affairs bodies. However members of the Public Council cannot ignore such cases of abuse and forms of work are used, like formation of public opinion; meetings with the managers of the relevant department or subdivision of the MIA.
Some of the factors which impede the work of the Public Council are: the lack of clear coordinator of activity; lack of clear understanding of the ideology and functions of public councils within both the human rights community, and the heads of regional departments of the MIA; the lack of a developed mechanism for interaction between the MIA Public Council with regional public councils; dependence of the work of public councils on the will of the regional police management. If the latter is negative, this effectively renders meaningless their role as an effective instrument of public control.
For example, the rejection of the idea of such public control by the Head of Police for the Sumy region in 2009 totally paralyzed the work both of mobile groups, and of the public council. The issue was presented for review by the MIA Public Council and a separate decision was passed, however this did not convince the head of the regional police of the need to cooperate with the public. What if there are such heads in the majority of regions of Ukraine? The results are predictable.
At the level of MIA Public Council dissatisfaction was expressed with the provisions and regulations regarding the Council. New documents were created, however these need to be approved by Order, and it is unclear whether this will happen. The continued functioning of the Public Council is in general unclear.
State 4: The Department for the Monitoring of Human Rights in the Work of the Police
Cooperation developed in 2005-2007 between the MIA and civic organizations demonstrated that the police needed to develop an institutional mechanism for monitoring human rights. This experience prompted the idea of creating a separate department within the MIA with the proud title of Department for the Monitoring of Human Rights in the Work of the Police.
The idea of the Minister and public was supported by the President and staffing changes were introduced. The Department was created within the Office of the Minister and Provisions approved. Selection of candidates for the post of Regional Human Rights Assistants to the Minister began with more than 80 applicants for the 27 positions. The selection commission included three members of civic organizations: V. Chemerys, R. Romanov, Y. Zakharov. Each applicant underwent a written test and had an interview.
There was thus a real choice of candidates based on professional level, knowledge and motivation. And the motivation was one – to work in the sphere of human rights protection.
Those Assistants selected can be broken down in terms of professional experience as follows: 44% were retired from the MIA, with no experience of work in NGOs; 41% were representatives of human rights organizations (UHHRU, KHPG, the Sevastopol Human Rights Group, the International Human Rights Society, OPORA, the Chernihiv Women’s Centre and others); 15% of people retired from the MIA who had experience of work in NGOs. Up till then the MIA had had no experience of such staffing selection.
The formation of the Department specifically from Human Rights Assistants to the Minister made it possible for them to be as independent as possible from the regional departments of the police, since all were employees of the Central Office of the MIA and answered directly to the Head of the Department for the Monitoring of Human Rights in the Work of the Police, the Head of the Office of the Minister and the Minister.
The areas of work of the Department were formed in accordance with main problem zones: the procedure for detention, arrest, pre-trial investigation; protection of public order; work with the public; analysis of systemic problems and identification of failings in the functioning of departments; increasing transparency and accountability of the police; support for the work of public councils and mobile groups; drawing up and improving the normative legal basis; initiating new areas of work of the police (countering racism, work with ethnic minorities, gender-oriented management); support for NGO initiatives on training seminars and educational programmes for police staff, etc.
The first training of the newly-appointed Assistants took place in May 2008 as soon as all had been selected. There were then training seminars on human rights issues, organized by civic and international organizations. The forms of work and reporting were developed, together with organization of reception of members of the public, outreach visits, new adjustments to the work of mobile groups, getting to know civic organizations and public councils in the regions.
The process was not easy. Already at the beginning of July 2008 a conflict situation arose around the Dnipropetrovsk Public Council. There proved to be opposition to mobile groups in the Ternopil region, the need to re-form public councils in a number of regions, and in Kyiv. There were negative reactions from some of the regional management to reports identifying problems in the work of the police.
A separate site for providing coverage of the work of the Department and efficient coverage of information was created, in cooperation with KHPG at http://umdpl.info.
Based on the results of the work of the Department, a report on human rights in the work of the police in 2008 was published and widely circulated (cf. www.umdpl.info ) This was the first time that the MIA reported on human rights issues. It is interesting not just for generalizing information about the work on specific areas, but also for its recommendations. Some of these were implemented in 2009. Again, the 2009 report is ready and awaiting publication.
In 2009 Assistants to the Minister saw 3705 members of the public (against 2606 in 2008), 698 of them during outreach visits. They received 2857 appeals; prepared 55 proposals for improving the normative legal base of the MIA with regard to human rights; initiated 2016 official checks; checked 966 subdivisions (against 625 in 2008); carried out 422 mobile group visits (against 356 in 2008); 86 meetings of public councils (89 in 2008). As a result of their cooperation with the media there were 1071 publications on human rights issues; 493 training seminars (194 in 2008) were organized and carried out for police staff in this area; as well as 340 press conferences, roundtables (671 in 2008), etc.
Given the unstable situation in the country, there was no certainty that the Department would be allowed to continue its work. The fact that it survived for 2 years is positive and something nobody dreamt of at the beginning of 2008.
On the other hand, the fact that it can be dissolved so swiftly, and as the first public step of the newly appointed Minister of Internal Affairs was also totally unexpected.
Stage 5: Dissolution
On 17 March 2010, a week after the appointment of a new Minister, information was circulated that the Office of the Minister was to be halved, and that this reduction concerned only the Human Rights Assistants to the Minister from the Department for Monitoring Human Rights in the Work of the Police
The first argument given was saving public money on the Office’s upkeep. This is without doubt a serious argument however the reduction in the positions of Assistant will not make significant savings. The increased number of Deputies to the Minister, appointed in March and April 2010 will eat away almost all money saved from dismissing the Assistants to the Minister.
The second argument presented by the new management is the claim that it is impossible to have departmental control over human rights violations. This is extremely debatable. Within the system of the MIA there is an Internal Security Service and a Staff Inspectorate which carry out controlling functions with regard to the lawfulness of police officers’ actions. Thus in itself departmental control exists. Therefore the creation of a division focusing on monitoring the activities of the police in the area of human rights comes within the existing normative framework and practice. It comes within it, but does not duplicate it since by its very essence it envisages the use and involvement of instructions of public control.
For this reason civic organizations, learning of the dissolution of the Department, addressed an open appeal to the leaders of the country in its defence.
“We are convinced that such actions by the new leadership are unwarranted, weaken national mechanisms for protecting human rights and demonstrate his priorities which do not include ensuring that the police respect human rights.
The folding of the work of human rights institutions created in recent years arouses outrage among civic organizations.
It is clear that without such a Department it is impossible to create a contemporary European police force which respects human rights in its work.
We would ask the new MIA management whether it is specifically this policy that they are rejecting when they state their intention to dissolve the Department for Monitoring Human Rights in the Work of Internal Affairs agencies. Do the police really not need to fight racism and xenophobia on the even of EURO 2010? Will the police not develop cooperation with international institutions and human rights organizations? Is there no need for mobile groups? Are public councils also not needed?”
The appeal was endorsed by around 200 civic organizations.
Information about the closure of the Department also reached international organizations which help carry out programmes in the area of human rights protection within the police and at the same time carry out monitoring of the government’s actions in this field.
The subject was also noted by the President (www.president.gov.ua). “Such a decision needs to be reviewed and conclusions reached. Steps must be taken to broaden measures to protect human rights, not the opposite. I would not advertise you to save public funding on human rights”, the President was reported as telling the Minister of Internal Affairs Anatoly Mohylev.
This recommendation was not implemented which led to a new appeal: “We are disturbed by the stubborn determination of the Minister of Internal Affairs to fold programmes on safeguarding human rights in the ministry despite even a clear assessment from the President of such action.”
There was also a meeting with the Co-Chair of the MIA Public Council during which the Minister promised to “think about it”. In fact, however, the Order to make the cuts had been signed five days earlier!
The dissolution of the system of human rights monitoring of the work of the police has been the subject of concern for other countries which had welcomed Ukraine’s will and actions in reform of the police. Questions regarding this are raised at each meeting of the MIA with diplomats and leaders of international organizations. This subject is discussed during roundtables, seminars, and civic organizations’ measures. Everybody is concerned regarding the future actions of the MIA with regard to cooperation with the human rights community, implementation of recommendations, the work of mobile groups and public councils. All the more so since there are already grounds for such concern.
To calm the public at the beginning of April it was announced that public councils were to be created at the level of district police stations (?) and oblast departments of the MIA. There was also to be a Public Council created under the MIA (see more information here: http://khpg.org.ua/en/index.php?id=1271864041 )
Given an existing MIA Public Council and public councils attached to regional departments, this statement is quite baffling. Equally so is the appointment by the Minister of a person with a more than questionable reputation as the new Head of the MIA Public Council without consultation with the public, without consideration of the provisions of the MIA Order No. 1243 or the Cabinet of Ministers Resolution.
We must be open, concern is raised by other actions of the leadership which are not in keeping with the norms of the law or morality, however that is another subject.
Ms Levchenko’s text ends with a number of questions to the current leadership of the MIA regarding the incomprehensible destruction of such a vital instrument for combating human rights abuse in the police.
Slightly abridged from the original by Kateryna Levchenko, Deputy Head of the Office of the Minister and Adviser to the Minister at www.umdpl.info