“Prava Ludiny” (human rights) monthly bulletin, 2010, #07

In Kharkiv the search is continuing for journalist Vasyl Klimentyev, Chief Editor of the newspaper “New Style”, who disappeared on 11 August. The police say that they are working on various versions, including that linked with his work. On 15 August the Dzherzhynsky District CID initiated a criminal investigation under Article 115 of the Criminal Code (murder). Vasyl Klimentyev’s colleagues believe it possible that he was abducted due to critical articles in the newspaper, which specializes in journalist investigations.

Petro Matvienko, Deputy Chief Editor relates: “For more than five years now the city newspaper “New Style” has been telling its readers about abuse of official position by representatives of the enforcement bodies and high-ranking officials, about human rights abuses.”

Members of the staff founded a civic organization “Independent Agency of Journalist Investigations” which calls for reports on cases where citizens’ constitutional rights are violated and of officials’ lawlessness. They give the contact details for the editorial office.

Vasyl Klimentyev tackled difficult topics, writing, for example, critical articles about the Deputy Prosecutor of the Kharkiv region, Serhiy Khachaturian, about the activities of the Head of the Kharkiv Regional Tax Administration, Stanislav Denisyuk.

According to Petro Matvienko, on 9 August he and Vasyl Klimentyev went to photograph Denisyuk’s estate, as well as those of three other figures in articles for the next issue, among them a former officer of the SBU [Security Service].

On 11 August in the morning, colleagues discussed the next issue, then during the day Matvienko was unable to reach Vasyl Klimentyev by telephone. In the evening he heard from his mobile:

“The subscriber is out of reach”

His colleagues notified the police the next day. The last thing that is known to the police about Vasyl Klimentyev is that at the metro station “Sportivna” he got into a BMW with an unidentified man.

Petro Matvienko says that his colleague was careful in his work, and was, after all, 67 already. He says that if Vasyl Klimentyev went anyway, he always took a pistol with rubber bullets, and that he was probably tricked into getting into the car.

The murder inquiry was launched after two days. Radio Svoboda tried to find out from the Kharkiv regional police why a homicide case has been launched, since the journalist is still missing. There have been suggestions that the police know something. The Police Press Centre avoid answering questions about the case, and have been given the basic facts and told that the versions being investigated are either domestic reasons for him leaving himself, or disappearance related to his professional activities.

Petro Matvienko cannot exclude the possibility that this is linked with his colleague’s work. Recently he once again wrote about bent police or prosecutor officers. The article “Explosive mixture” could, he believes, have been the reason for Vasyl Klimentyev’s disappearance.

The difficult relations between Vasyl Klimentyev and those he wrote about is demonstrated also by the editorial statement to the owners of leading television channels: Inter, TRC Ukraina, NTN. The statement, published on the newspaper’s site, suggest that the main players in frequent publications are preparing a documentary to discredit the Chief Editor. This film, it says, has apparently been ordered by the Chief Tax Officer of the Kharkiv region, Stanislav Denisyuk and the Deputy Regional Prosecutor Serhiy Khachaturyan. The TV channel owners, as well as Denisyuk and Khachaturyan have made no comment on the accusation.

Slightly abridged

Open appeal to the President of Ukraine, Viktor Yanukovych, calling on him to veto the Law “On the Judicial System and Status of Judges”

The appeal was sent on 22 July to the President’s Administration (see http://helsinki.org.ua/index.php?id=1279436602 for the signatures) however while the law has not come into force, please send your letters of protest to the President and also to the email address below ([email protected]  )

Dear Mr President,

On 7 July 2010 the Verkhovna Rada, without waiting for the Venice Commission’s Opinion, hurriedly passed the Law “On the Judicial System and Status of Judges”. This was supposed to be the beginning of the long-awaited judicial reform.

However, despite a considerable number of positive innovations, some provisions of the new Law do not, in our opinion, comply with the Constitution, European standards and the interests of citizens, and will render meaningless future reform.

The following do not comply with the Constitution:

- The functions of the High Council of Justice have been broadened, in breach of Article 131 of the Constitution, to include appointing and dismissing the heads of courts, as well as examining complaints from judges who have been refused indefinite tenure.

-  Retention of the President’s power to transfer judges, including those with indefinite tenure, in spite of the procedure established by Article 123 of the Constitution.

-  Unwarranted establishment of exceptions for appeals and cassation appeals against court rulings, ignoring the constitutional principles of court proceedings, stipulated in Article 129 of the Constitution.

-  The Supreme Court, which in accordance with Article 125 of the Constitution has the status of highest court within the system of courts of general jurisdiction, is stripped of effective possibilities for standardizing case law in these courts. The law removes its right to pass the final ruling in a case and leaves it the right to examine cases only in the cases of divergent application of material law, not procedural law. And only when the application for a review is allowed by the relevant High Court whose ruling is appeal to the examination

The following are not in line with European standards

-  The placing of special training of judges under the control of the Ministry of Education, through the institute (faculty) of training of professional judges being part of higher national educational institutes of fourth level accreditation.

-  The fact that this institution which is dependent on the executive branch of power is to participate in the process of selection of judges;

-  The failure to stipulate objective criteria and a competition for transferring judges, including selection as high court judges.

-  The retention of an inquisition-style (not adversarial) procedure for bringing proceedings against judges, under which a member of the High Qualifying Commission of Judges or High Council of Justice is at once investigator, prosecutor and judge in relation to that particular judge.

The following are not in the interests of citizens

-  The possibility of court examination of a case without the participation of a person who was not notified of the court hearing, for example, through the fault of the post office;

-  Considerable reduction in time limits for lodging appeals or cassation appeals against a court ruling. In the absence of a system of accessible and effective legal aid, this will be a serious blow for people on low incomes.

-  Major reduction in time periods for examination of cases at each level to one or two months, and in some categories of cases to 20, 15 or even 5 days. The need to observe these periods will lead to violations of the procedural rights of the parties and to superficial examinations.

-  Removal of the right to ask for a judge to be removed where the circumstances which form the grounds for this become known after the examination has begun;

-  Entry into force of the Law from 15 July 2010 which will give neither lawyers nor judges the opportunity to become familiar with the procedural innovations.

If you sign the Law “On the Judicial System and Status of Judges” in the version passed, citizens will receive a swift, but unfair justice system from dependent judges.

Since you have posed an entirely different aim for judicial reform – of ensuring just court proceedings and true independence of judges, we call on you to return the Law to the Verkhovna Rada with your proposals aimed at bringing its provisions into line with the Constitution, European standards and the interests of Ukraine’s citizens.

 You can add your voice to our appeal by writing to [email protected]  

The risk to Ukraine’s judicial system is great and time short. If you can help by supporting our appeal, and circulating it to others, we would be very grateful!

In an interview given to the information agency “MOST-Kharkov”, Arkady Bushchenko, Bar Lawyer and Head of the Board of the Ukrainian Helsinki Human Rights Union, spoke of the problems with the recently passed law on the court system and status of judges: why the law is bad, how to fight it, and what to do so that judges work for people and not for officialdom. The following is an abridged version of the main points.

What is your assessment of the new Law on the courts from the point of view of human rights?

In my opinion nothing will change radically. It certainly won’t improve, in any case. In some aspects it could deteriorate since, for example, the competence of the Supreme Court on reviewing cases is reduced. Now it will only re-examine a case if one of the high specialized courts has doubts about the consistency of its practice. The applicants will furthermore have the impossible burden of proving lack of consistency». Arkady Bushchenko cites the Constitutional Court which has the same norm as his reason for believing that this will not work.

The Supreme Court, he notes, has a much smaller role in protecting human rights than the first instant courts where most cases are decided. “All that is required from the court system and the Supreme Court is to establish case law, some kind of consistent approach on resolving this or that court question. I think that the new law will not resolve this problem, but on the control exacerbate it.”

The law, he says, is applied very differently, and why is not clear. “At present in any first instance or appellate court on analogous cases you can get absolutely opposite rules. That means that what many judges of the Supreme Court have insisted on, the introduction of the principle of precedence, is not being carried out.” A first instance court does not have to follow a Supreme Court precedent on other cases – the judge can say that s/he is independent, free and can do as they wish. And they bear no liability for this, which Arkady Bushchenko says is a real problem which the new law only exacerbates.

“Effectively, 4 separate jurisdictions are created: civil; criminal; administrative and economic. They are so little connected that we will soon have four different types of law, 4 different legal systems”, which is absolutely absurd.

While at lower levels specialization of courts can be desirable, at higher court level it is important to strive towards the idea of single law, principles applicable regardless of the type of legal situation, that is “protect the law from disintegrating into several independent elements”. Ensuring an integrated legal system is the task of the Supreme Court of any country. .

Regarding promises that the law will reduce the time frames of court cases

Arkady Bushchenko sees no grounds for optimism, and stresses that reduction in the period allowed for lodging an appeal could seriously violate the rights of the parties since preparation of an appeal can take time.

As far as the periods for examination in court are concerned, there are already provisions which oblige judges to review cases fairly quickly, but this doesn’t happen.

He sees this as a systemic problem, not resolvable through introducing new legal norms, and notes that in Ukraine there is no understanding, even, of the need for court management. A second problem is the lack of financing. – the court simply doesn’t have the people, the facilities, even the stationery. You can bring in even the death penalty for missing terms, but it won’t help if the financial and practical sides are not resolved.

“Heads of the court are forced to go and bow to officialdom, pleading to be magnanimously granted 50 % financing or, if they ask really nicely, maybe, so to speak, interesting the officials, they’ll receive 70%. This is the problem, the law won’t resolve it.

The ban on returning cases to first instance courts will, he agrees, make it possible to reduce time wasting through ping pong between courts. However he says that the practice of returning cases to first instance courts was established a long time ago. He sees sense in it, and says that the authors do not give serious arguments for abandoning it.

“If this norm is accepted, it will lead to appellate courts approving any, however idiotic, ruling of those courts in order to avoid taking on the financially and organizationally burdensome role of these courts. If the appellate court overturns the ruling of a first instance court, it has to take on the examination etc itself. This is a huge headache which most will prefer to ignore by agreeing with any ruling.

Regarding the simplified procedure for dismissing judges

Arkady Bushchenko says that this can be a plus and a minus. The fact that it’s easier, could indeed make it useful in fighting corruption, however when they say that the mechanism for dismissal is very simple, this means that a judge will lack independence – s/he can influenced by threat of dismissal.

“The problem is that the law gives too much power for influencing the court system to the High Council of Justice, a political, not a judicial, body.

You can basically say that judges to a large extent lose their independence since their appointment, any penalties, career movement depend on a political body. And if this body is under the control of one political form, then it, as well as influencing politics (which is in the nature of things) will also influence the courts. It will force the courts to act in accordance with its changeable political moods, like some norms more, some less, approve everything that the executive and legislative branches do, not approve what their opponents say …

At that point a court stops being a court, because a court is intended specifically to minimize the influence of politics on the legal system. Politics should remain within the boundaries of the legal system and not the legal system within the boundaries of politics. Here is all turned upside down. This may be the most dangerous thing from all that is proposed in this reform”.

He goes on to say that the court system asked for what has happened by effectively doing nothing for almost 20 years. They did not form court tradition or corporate ethics, no proper disciplinary system etc.

“Now judges are terribly unhappy with what can be called rape of the judicial system. Yet they asked for that rape for 20 years.

I’m not sorry for them, but I’m sorry for our society which could in this political battle lose the judicial system in principle. We’ll have troikas [notorious during the Stalin terror – translator] or dwoiki [two judges], a political court where the political force (it doesn’t matter which) will decide what’s correct, what’s incorrect. What we are to like, and what to not like. What we have a right to and what we don’t. That’s what we’ll get!  You can dislike many judges. You can consider that they work badly, and that will be true. But you can’t destroy the court system because of that.”

He says that the new law does not take fundamental principles of court systems into consideration  This had been spoiled over 70 years and it needed to be restored not brought to its knees.

Asked how, he says that it’s necessary to begin with judges, and asserts that there is no proper legal education. “There are educational institutions of the Soviet type which simply foist the type of thinking which leads to a situation where such laws get passed. “

He stresses that judges must give motivated reasons for their rulings. And there needs to be constant professional development of judges since the law changes quite quickly.

The only area, he says, of agreement over the new law is in the reduction of judges of the Supreme Court, since there are presently around 100.  This is not the sort of numbers needed to gather and establish a single position. He stresses, though, that decreasing the number must be combined with changing procedural norms since at present the Supreme Court is totally overloaded, with anybody able to turn to the Supreme Court on any trivial subject. The Court’s role, he repeats, must be to establish precedents.

On mechanisms for appointing judges and bringing them to answer when needed

Arkady Bushchenko says that the flaw of the system is that people unprepared for court work become judges. They are nurtured by the very system. They may have been a secretary at court hearings, then after a while move on to become a judge’s assistant, then at the latter’s protection, become judges themselves. Or end up as judges after being investigators, traffic police, whoever. He says that this corrects the court system. He has nothing against investigators or traffic police, but they are not suited for court work.

Judges should, he says, be people who worked in the court on one or other side – a prosecutor or bar lawyer. However, the main thing is a court community which regulates itself own state of professional health. Where judges will themselves not tolerate some swine damaging the reputation of the profession. 

The Law has already been passed and the President will probably sign it, which means, as you put it, the system of judges will become hostage to the political situation. How will you fight this?

We will inform the international community about what is happening. Perhaps with the help of judgments of the European Court of Human Rights we will get certain norms revoked. We will approach the authorities and point to the failings. However the main hope is that politicians will understand that they too need an independent court system. If we remain within the framework of a democratic country, then any political force should understand that tomorrow it could be the opposition, and it will need to clutch on to something – to the law and independent court system.

Unfortunately, our politicians learn slowly – they’re people with unhurried development. Yet if we turn into a totalitarian country like Russia, Turkmenistan and Kazakhstan where everything is under the President or some political force, then you can forget about any independent justice system. That’s simply another system of values.

Your prognosis – what will Ukraine choose, democracy or totalitarianism?

The chances are about 50-50. I hope that democracy has a bit more. Not because our politicians care about democratic values, but because they won’t have the power to make a fully totalitarian state.

Abridged from the interview at: http://most-kharkov.info/week/interview/25901.html

In his article “Privacy’s triumphant move”, Dmytro Chopovsky from the Institute for Mass Information analyzes the Law on Personal Data Protection recently passed by parliament and signed into law by the President despite calls from business, human rights and media organizations. His assessment is equally damning/

He begins by stating that “From when the Law on Personal Data Protection comes into force, it will be prohibited to circulate any personal data about a person without their consent, unless the person is a first category public official”.

He comments dryly that after decades during which people’s communal living quarters were divided by sheets, the idea of privacy had scarcely taken root in our consciousness, when the Verkhovna Rada set to legislating “privacy”. And, “as is the way here, any good initiative is spoiled by bureaucratic procedures and political calculating, becoming, as a result, a threat. In this case it is a threat to freedom of speech and of non-compliance with European democratic standards”.

The area of privacy and personal data had lacked proper legislative regulation. A Law on Personal Data Protection was passed in March 2006, as part of measures to fulfil Council of Europe demands and reform information legislation. In April 2006 President Yushchenko vetoed the law on the grounds that it did not comply with the Council of Europe Convention.

In June this year the Verkhovna Rada made another attempt, passing with a large majority (355 votes for) the Law on Personal Data Protection which President Yanukovych despite very active protest from the business community and civic society signed on 24 June.

“Parliament thus decreed that personal data is information on restricted access. Personal data, according to the law, is any data about a person enabling others to identify him or her.  This can even be last name, name and patronymic, mobile telephone number.” This means that the gathering, processing or circulating of any such data is possible only with the consent of the person or in cases envisaged by law. The Law makes an exception only for first category public officials: National Deputies, the heads of State committees who aren’t members of the Cabinet of Ministers; the heads of other central bodies of power under the Cabinet of Ministers; the Permanent Representative of the President in the Crimea; the President’s Representatives in the regions, Kyiv and Sevastopol; the first deputy ministers; first deputy heads of State committees which are part of the Cabinet of Ministers; the Heads of the President’s Administration; the Secretariat of the Verkhovna Rada and other equivalent positions

The author points out that members of civic society have long stressed the need for a law on personal data protection.  The Law passed recently is in principle aimed at protecting personal data, but in practice it “could complicate life for all of us, worsen conditions for Ukrainian business and significantly restrict freedom of speech”.

The Law needed to comply with the Council of Europe Convention No. 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data and other documents however it would have been quite sufficient to issue a compact law of a general nature. Instead they came up with a true masterpiece, so general that it could apply to absolutely everything.

“The law establishes a mechanism to protect against the collection, processing and use of personal data without a person’s consent. Yet there is no link with protection of the right of respect for private life, of which personal data is a component part. Under such circumstance the provisions of the law may be used for other purposes than to protect human rights.  A new controlling body appears entitled to make implementation by all parties mandatory, while on the other hand the law enforcement agencies receive yet another pretext for checking and initiating criminal investigations”. The author points out that criminal liability for intrusion in the private life has been established in Article 182 of the Criminal Code, and that this can apply since the circulation of such information can be treated as unlawful.

Among other extraordinary innovations he mentions the definition of a database, according to which even a case with business cards could be deemed such, and should therefore have State registration. “According to Article 1 the law does not apply to creation of personal databases and processing of personal data in these databases by an individual, exclusively for their non-professional personal or everyday needs”. So if your collection of business cards has your hairdresser, that’s OK, if it contains those of business partners, then this is use for professional needs.

The author suggests that school textbooks will need to be written more or less as “A held talks with B”, “the flag over the Reichstag was raised by A, B and C”, since the law states that “the use of personal data for historical, statistical or academic purposes can only be in depersonalized form”.  Taken entirely literally, then you can’t even cite other colleagues in an academic work even with their written consent.

Freedom of speech

The restrictions on the right to privacy in the case of public figures is one of the guarantees of freedom of speech.

The Law states that it does not apply to the activities of a journalist in creating or processing personal databases, yet does apply if the person’s data is not in any database, or is in, for example, a State database. In practice this means that after the law comes into force on 1 January 2011, a journalist will not be able to circulate any personal data (as per the definition above) without the person’s consent, unless the person holds electoral office or is a first category public official.

The Law does not contain the concept of “public figure” which is an “axiom” of European democratic standards. In European Court of Human Rights case law, there is more scope for permissible intrusion in a person’s private life. This means that it is possible to collect and circulate information of a personal nature about such people without their consent if it is of public importance. Instead, the Law makes an exception only for people standing for or in positions of electoral office or first category public officials.

This means that the circulation of personal data of other people by a journalist can be considered an infringement of this law and result in civil or criminal liability. According to the law, simply mentioning a person will require written consent. The restriction to freedom of speech is thus entirely disproporitionate, and there could be problems for advertising, publishing, the postal services and others.

The author does not mention the clear threat to banking and related areas (see: Bank Association calls on President to veto Law on Personal Data Protection)

The author concludes that the Ukrainian law creates far more problems than it resolves, and many of its provisions actually infringe the Council of Europe Convention No. 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data and other documents.

He assumes that the law was drawn up in such a severe version so that the excessive points could be gradually removed and because the legislators expected it to be mellowed through non-enforcement.

The Law on Personal Data Protection does not meet European standards and could have an adverse effect on freedom of speech in Ukraine, and can thus not be considered implementation of its international commitments.

The author points out that the process by which the Law was passed shows how isolated the authorities are from the public, how ready they are to totally ignore public opinion.

He adds that the law comes into effect from 1 January 2011 leaving everybody a mere 6 months to bring their activities into line with the law. Given the law’s content, it is safe to assume that this is impossible. An analogous law in the Russian Federation was passed in July 2006 and only fully comes into force on 1 January 2011.

“One can only hope that the entry into force of the law will be deferred and the relevant norms brought into line with European norms.

The SBU [Security Service] have taken a written undertaking from blogger Oleh Shynkarenko to not criticize the authorities “in strong form” on his Live Journal blog. “Since no specific demands were put, I should understand that any criticism of the authorities on the Live Journal can lead to new persecution.”

Oleh explains that on 29 July some person who identified themselves as SBU officers arrived at the Cinema Club “Smoloskyp” where he is the moderator. They asked him to come for a conversation with an investigator over writing in his blog, then turned up the next day at his home with a summons.

The summons spoke of a possible threat to a State figure. Oleh says that the texts that worried the SBU were more emotional parody than anything else. Talking about the 16 second clip about how Yanukovych was going to talk with Azarov,, he wrote in the tags to it “kill the reptile”. “I was obviously not going to kill Yanukovych, I had no such plans.”

The SBU also paid attention to another note where Oleh commented on the video clip of a wreath falling on Yanukovych. “It’s interesting whether anywhere they’re such forces, like Ukrainian nationalists, who could kill Yanukovych, Anna Herman and the whole group of them.” He says that this was clearly a joke.

Oleh says that the investigator gave him two options: either they arrest him for a long time or I write an explanation that I didn’t plan to make a threat, that I apologize and that I won’t do anything like it again”.
Oleh wrote it, but stresses that he doesn’t know whether he’s not supposed to make critical statements about Yanukovych at all, or specific ones. He says that the investigator expressed dissatisfaction with other statements about Yanukovych but didn’t specify which.

He considers such behaviour to be an intrusion into his private life. He says that the SBU must be looking for people who are unhappy with the regime and seeking ways to put pressure on them. He reports on his blog http://singing-foot.livejournal.com/246399.html that the material disappeared from his blog, although he himself did not remove it.

Telekritika Lawyer, Oleksandr Zarutsky stresses that you can only investigate or initiate criminal proceedings over Live Journal postings if the threats expressed are deemed by the person against whom they’re directed to be real. He says that the President would have had to made an official complaint, otherwise there was no element of a crime since the blogger did not do anything else.

On the other hand the Head of t he Press Service of the SBU Marina Ostapenko stated that the Service was in the first instance carrying out work on preventing crimes. She said that notes on Live Journal cannot be considered a personal diary, and that the Internet is a means of mass communication.
From a report at http://telekritika.ua/news/2010-07-30/54735

One of the most important points which journalists focused on in their meeting on Monday with the delegation from Reporters without Borders was that the system for establishing censorship was taking place at the level of legislation. They mentioned the adoption of the law on personal data (which effectively prevents divulgence of any information without a person’s consent, even their name – translator), the failure of the draft law on reducing the time frame for answer information requstions and the drawing up of a fictitious draft law on “public broadcasting” (see: khpg.org/index.php?id=1278359988) The journalists also expressed concern over the new draft law from the Prime Minister on registration of all Internet publications as information agencies.

Despite the fact that the meeting with the authorities and RWB did not take place, Ukrainian journalists were able to give their colleagues time. During the meeting which lasted more than an hour, the Secretary General of Reporters without Borders, Jean-Francois Jouard and his colleague, the Head of the Europe Section Elsa Vidal, spoke with Ukrainian journalists. The message from all was that strict control is  swiftly being imposed on all types of media.

Viktoria Syumar, from the Institute for Mass Information, told them that the situation since President Yanukovych came to power has changed radically and that they were seeing attempts to establish systematic control on the information sphere. She said that the President had authorized one man to be involved in all policy in the media realm. This was Valery Khoroshkovsky, Head of the Security Service [SBU] and owner of 9 television channels including the most popular in Ukraine – Inter. Journalists had told them she added, of news stories being agreed, when one and the same news item, one and the same script were shown on different television channels. In addition, she stressed, Khoroshkovsky has influence on the State Television and Radio Broadcasting Channel which issues and removes licences. The majority of the present members are his former employees.

She believes that journalists have not fully appreciated the problem with the new laws and draft laws which when they come into force will have journalists simply held to answer for carrying out their professional duty to circulate information.

Two journalists from “Ukrainska Pravda” – Serhiy Leshchenko and Mustafa Naiem – said that the President’s Administration is very fussy in choosing journalists working in the President’s pool of journalists during international meetings. Journalists who are critical of the new authorities are not allowed in. Leshchenko stressed that these events take place on taxpayers’ money and must be transparent.

They noted also that on Journalists’ Day the President made State awards to certain loyal journalists.

They also reported the worrying cases of attacks on journalists, including that on Serhiy Andrushko (cf. khpg.org/index.php?id=1279105392 and the links below) and Serhiy Kutrakov from Novy Channel (khpg.org/index.php?id=1278982428) the removal of licences from TVi and Channel 5 (see: khpg.org/index.php?id=1276215555 and below).

Serhiy Leshchenko said that members of the new regime far more often refuse to provide information. Formal information requests over the situation with Niko Lange (cf. khpg.org/index.php?id=1277927174) have not been answered.

The journalists said that on some television channels, even the representatives of top management were taking part in putting together and editing especially important items concerning the President and members of the new regime.

The endless talk about public broadcasting multiplied by total lack of political will has resulted in a dangerous situation where people no longer believe that it will be introduced, and don’t especially understand why they need it, and the government apparently believes it can foist any imitation and people will not notice the difference.

On 2 July, the President’s site posted in Ukrainian and English an open letter “Herman to Kramer: ‘Ukraine will not step away from its democratic way’.  It is a real mental challenge to imagine how this “response”, or standard stock of selective facts and carefully presented assertions from Hanna Herman, Deputy Head of the President’s Administration could assuage the concerns expressed by David Kramer in his article “Clinton to Kyiv: Speaking Truth to Power”  He is supposed to believe, for example, that the regime has learned “to rectify their mistakes” because a month and a half after the visit by a Security Service [SBU] officer to the Rector of the Ukrainian Catholic University and the effective claim by the Head of the SBU that such activities are justified, that same Head, Valery Khoroshkovsk visited Father Boris Gudzyak . Yet the President has not simply failed to respond swiftly to the understandable bemusement both in Ukraine and abroad over his appointment of Khoroshkovsky, who is not even a lawyer, to the High Council of Justice. He has failed to respond at all.  While even without the SBU approach to the National Broadcasting Council regarding the tender for frequencies from 27 January (which Khoroshkovsky’s media holding appealed against and won in court) and TV channel TVi, the clear conflict of interests when the Head of the Security Service has major stakes in the media is not just of concern to David Kramer.

 I will not list all the cases of pressure, including from the SBU, censorship and dispersal of peaceful gatherings which Mr Kramer is supposed to believe are nothing to worry about. He can read and there are more than enough of such reports.

It would, incidentally, be wise for Ms Herman to bear in mind that carefully edited versions of facts are of limited force when you can’t at the same time restrict access to information. However galling this may be, restrict it you cannot. Mr Kramer has clearly heard of “criminal proceedings over corruption”. Of the criminal investigations, for example, against the former Prime Minister Yulia Tymoshenko and other people linked with the opposition, whereas the criminal proceedings against former Minister of Transport M. Rudkovsky, as well as two figures who left the country after the Orange Revolution, have been terminated. If he doesn’t know of those, he will of others since he himself calls for real reform, not simply settling old scores.

            Assurances that they’re on the “right track” are even less convincing when the words are so at variance with actions. When you learn that during Hillary Clinton’s meeting with students, members of a picket against censorship peacefully standing with placards reading “This country has censorship” were detained.

Let’s consider the first of what Ms Herman calls the “crucial arguments which testify that President Yanukovych will not allow the rollback of democracy in Ukraine”  “Independent Public Television is becoming a reality – from once being an illusion”.  She is referring to the “adoption of the Public Television Concept prepared by the Public Humanitarian Council”.

Clearly any such achievement could only be welcomed however it’s difficult to feel great optimism. Firstly, because on that same day, 29 June, what became a reality, and in the very near future, was an even greater level of politicization of the media. This came with the election in parliament of its quota of proposed candidates to the National Broadcasting Council. Despite strong and professional candidates from civic organizations, the four were elected on the basis of the political makeup of the ruling coalition.

A week before the meeting of the Public Humanitarian Council, the civic movement “Stop Censorship!” asked the President to involve members of the movement in discussion of public broadcasting “since there are no representatives of the journalist community among the members of the Council”. They also made public their draft law on the creation of public broadcasting.

Both the request and the draft law were ignored. Ms Herman stated that the members of the movement had not been invited since they weren’t members of the Council, yet in her letter to Mr Kramer she boasts of the participation of “a well-known European expert who works with the European Commission and «Reporters without Borders», Mr. Jean Martin”. Work for them he may, however “Reporters without Borders” felt compelled to state publicly that they had not sent Jean Martin to Ukraine nor had they empowered him to give an assessment of freedom of speech.

It is not know why Mr Martin decided to take part in the meeting and what role he played in drawing up the Concept Framework. Neither journalists, nor civic society in general, know what guided the President and his Administration in choosing members of this Public Humanitarian Council.

In a matter of weeks (if not within one week) a draft Concept was drawn up and passed with lightening pace.  Ms Herman told members of “Stop Censorship!”, “this is our vision of the creation of public television in Ukraine, and you have the possibility of taking part in this process, you have the possibility of presenting your proposals”.

Who are we to understand when she talks of “our vision” and what “we” will do? In her letter, Ms Herman assures Kramer that “in September this year, the Public Television draft will be submitted to the Verkhovna Rada and will be supported by our coalition”.  One has the impression that the Public Humanitarian Council’s role was to pass “our vision” while the public have the opportunity to put their suggestions regarding “our vision”, although they might just as well enjoy the warm summer days since it won’t make a scrap of difference and “our” draft law will be passed in September.

            We have two documents – a draft law proposed by the civic movement “Stop Censorship!” which doubtless requires revision, yet is more or less in line with the generally accepted understanding of public broadcasting and clearly deserves attention.

            This draft law and its authors were ignored, and it was decided to begin from scratch with a Concept Framework. Like most such theoretical documents, it can be difficult to know what exactly to discuss. It is considerably harder to understand what any of it has in common with real public broadcasting. Specialists are probably already preparing a comprehensive analysis, so I will confine myself to what stands out a mile to anybody wishing to receive objective and independent information, and understanding the difference between proper public broadcasting and Russia’s first TV channel, ORT.

            It is totally unclear how independence is to be guaranteed, and by no means certain that this was the aim. This may be unfair, and all the hiccups will be resolved in the draft law. At the moment we read that:

            “Supervision over the activities of the National Public Television and Radio Broadcasting Corporation (the Broadcasting Corporation] is carried out by the Supervisory Council, made up of one representative each from: the President; each faction in the Verkhovna Rada; the Cabinet of Ministers; and national civic organizations: educational; scientific; religious, sport, media, human rights, creative, business, youth, women and for those with special needs, etc”.

            All is clear with regard to politically partisan members of the Council. How many representatives of civic organizations is not so, nor how the civic organizations will reach agreement. This is hardly a mere detail, since if they cannot agree, then the choice is made for them by other politicians -  the profile committee of the Verkhovna Rada. 

            Do we need to add that all heads of this specific phenomenon entitled “National Public Television and Radio Broadcasting” are selected by precisely the Supervisory Council?

This then is the achievement which Ms Herman speaks of in her letter, claiming that “it took us only a couple of months to create what previous Ukrainian authorities failed to do throughout its Independence”

Journalists, human rights activists, representatives of democratic countries and European structures are already sounding alarm bells over “achievements of the present regime”. With regard to the creation of public broadcasting, there are people more than willing to help further public broadcasting. Mistakes they will have to learn to correct themselves – for the sake of the country and its citizens, just as swiftly as they can.

The Kharkiv Regional Prosecutor’s Office has stated in their response to the Ukrainian Helsinki Human Rights Union that they found no infringements over the situation in Kharkiv’s Gorky Park

The letter, signed by the Deputy Prosecutor O. Kuchar, asserts that neither the police who beat and/or unlawfully detained defenders of the Park nor the unidentified individuals in black with badges saying “Municipal Security” who also used force against peaceful protesters committed any offence.

The Prosecutor’s Office consider the facts cited in the UHHRU open appeal to be of a non-specific nature.  This is rather perplexing given the ample testimony and extremely graphic video footage confirming:

-        the use of violence by police officers against people trying to prevent the trees from being felled;

-        cases where the athletic young men in black and / or with “Municipal Security” badges beat up demonstrators, and the excavator injured several people by lowering its scoop on them, with the police doing nothing. 

The video clip here http://youtube.com/watch?v=S_gk4KGWfKI&feature=youtube_gdata has been viewed by 16 thousand people, and is one of a number published in articles in the media (including English-language) and sent to the Council of Europe Human Rights Commissioner, Amnesty International, UEFA and others.

In response to the accusation that the Kharkiv authorities had ignored the public’s interest and opinion, the Prosecutor mentioned the “public hearings” orchestrated on19 June 2010.  Details and a very telling video clip of these hearings can be found at: http://kyivpost.com/news/opinion/op_ed/detail/70370/  however it also says a lot that the Prosecutor should be citing public hearings from 19 June when the tree felling began a full month earlier, on 20 May.

The Prosecutor claims that public opinion was taken into account when the General Plan for the city was approved in June 2004, yet this does not envisage the actions and road construction plans of the Kharkiv city authorities.  As reported, in 2008 the Ministry for Environmental Protection order the Kharkiv Regional Department for the Environment to revoke agreement of a plan for the disputed land which was done.

There was no – mandatory – State environmental impact assessment for the Park construction plans. Nor are the central authorities aware of any public hearings having been held regarding this construction. Yet despite this, the Kharkiv City Council on 19 May passed an unlawful decision to remove trees from Gorky Park and sent men in to carry out the work the very next day.  The figure of 503 trees has long been exceeded (a week ago the figure of 2,000 was given), and the unlawful nature of the authorities’ actions has been confirmed, among others, by a parliamentary committee, yet the work is continuing.

And in a number of such responses to official complaints, the Prosecutor and the Ministry of Internal Affairs simply deny what people can see with their own eyes.

See the appeal to the CE Human Rights Commissioner (which cites other videoclips) and list of organizations and individuals who signed it herekhpg.org/index.php?id=1275908780

On 7 July 2010 3 the Dzherzhynsky District Court in Kharkiv issued three rulings over members of “Zeleny Front” [“Green Front”]  detained on 5 and 6 July in Gorky Park where they were endeavouring to stop the entirely illegal felling of trees.  This work is continuing despite the parliamentary committee’s conclusions, the lack of permits and strong public protest.

All three activists were detained, as were the two whom Amnesty International has already declared prisoners of conscience, under Article 185 of the Code of Administrative Offences – disobeying a police officer.

According to their lawyer, Tatyana Vishnevetskaya, Yevgeny Kotlyar, detained on 5 July, was fined 136 UAH (Judge Tatyana Shtykh).

Alexander Shepel was fined 255 UAH (Judge Sergei Lazyuk).

According to Andrei Tsukanov from “Green Front”, Ihor Yasinsky, detained on 6 July, was sentenced by Judge Nikolai Zadorozhny to 10 days administrative arrest.

Ihor’s lawyer Maxim Korniyenko says that the court hearing into the case of Alexander Gapon, also detained on 6 July, is scheduled.

New information at: http://glavnoe.ua/news/n53949

Ukraine has turned into a feudal state, believes Volodymyr Yavorsky, Executive Director of the Ukrainian Helsinki Human Rights Union [UHHRU], with reference to the situation with human rights abuse under the new regime. He said in an interview to Radio Svoboda that in various regions of Ukraine they are receiving information of arbitrary rule by local officialdom and politicians, with the same trend existing at national level. Among neo-feudal offenders are those who should be protecting the law – prosecutors, mayors, tax officials, police heads.

Together they create some kind of Mafioso clans which hold all of them. Or it can be other wealthy people who buy everything up – businesses, large areas of land and dictate to the villages what to do. People in the provinces feel totally lack of rights because it’s clear that the police are not performing their functions. They never protect ordinary people, they do only what the authorities above say. My colleagues and I have also noticed that all the authorities are so closed that there is no response to complaints regardless who complains, whether human rights organizations or ordinary individuals – they’re hitting their heads against the wall. Only if there’s a call from above do the authorities begin to do something.

He was asked whether international human rights organizations are quicker to react to violations of human rights than Ukrainian institutions which should be dealing with these issues.

They – our politicians and officials live autonomously full stop. The central authorities do not pay attention to any events. That is, they have some kind of plan, they carry it out, regardless of anything. Whatever else that happens is in their view failings, or organized by the opposition. When we see in the media the reaction of the authorities, it’s always that everything is organized provocation by the opposition. When the Security Service [SBU] comes to check civic activists, that’s some kind of opposition things. When the local administrations collect information about the political convictions of officials, or how they voted at the last presidential elections, keeping databases about all officials in the district, that also the opposition!

How do you assess in this context the law on peaceful assembly proposed by the new parliamentary coalition?

It’s not the worst draft law, and if you change 5 or 6 norms it will be better than the situation at present. The Law on Personal Data Protection is much worse, as is the Labour Code which is being considered in parliament. This regime listens to only two things: ratings (that is, if their rating falls, there will be some change in their behaviour). People need to know and understand what is happening in the country, that’s our key function at the present. And the second thing is  the reaction of the international community to all these things.  Our country depends on export, all our business is built on selling metals or other things to the European Union, the USA, other countries and therefore Ukraine cannot be isolated.

Volodymyr Yavorsky says that it is not out of the question that under the pressure of western economic partners Ukrainian politicians closely linked with big business will be forced to reduce pressure on society. He stresses that society must become hardened to counter pressure from the present regime for their own sakes and that of the country.

An extraordinary interview given by the Minister of Internal Affairs, Anatoly Mohylyov, has prompted a number of prominent human rights campaigners to put some hard-hitting questions to the leadership of the country. Their letter, open for endorsement, is addressed to the President, the Prosecutor General, the Minister of Internal Affairs and the Heads of the Parliamentary Committees on Legislative Provisions for Law Enforcement and on Human Rights, National Minorities and Inter-ethnic Relations.

We write with regard to words spoken by the Minister of Internal Affairs, Anatoly Mohylyov on the TV Channel Inter on 9 July 2010 during the television show “Big Politics”. His words arouse concern in the human rights community for several reasons.

Firstly, in his comments, Mr Mohylyov offered his own view of a new criterion for assessment of the work of the police, this being the number of people facing criminal prosecution. Yet the protection of citizens’ rights and freedoms can be measured in terms of the percentage of solved crimes, and even less so by the number of people charged with offences. For example, in the human rights report “100 Days of the New MIA Management”, it is quite clearly demonstrated that at least 60-70% of the confiscations of weapons at present are falsified by police officers or carried out through unlawful entry of citizens’ homes. This is one of the consequences of chasing after figures for crimes solved which the MIA had supposedly rejected. Another result of this policy, baffling for Ukrainian citizens, of chasing statistics is the demand that those accused confess to some other crimes which they did not commit purely so that they can be added to the list and improve reporting.

We can only imagine how dreadful the results will be when the measuring stick for police work becomes not only crimes solved “on paper”, but live people who will, in large numbers, be prosecuted in order to comply with the figures of the new MIA reporting. We would state our emphatic protest over Mr Mohylyov’s unprofessional approach to State policy on countering crime. We should remind him that Ukraine, along with European countries, is consciously taking steps towards reducing measures of criminal repression in favour of social measures for reacting to crimes. Quantitative figures leave out of the picture the quality of crime solving, when the organizers and those who ordered a crime remain at large, yet the figures rise, for example, via trivial thefts. Yes, you need to fight them however somebody who took a bribe in the thousands, or millions, or who runs drug sales or an organized criminal gang are more dangerous to society than small-time individuals who carry out crimes, and who are used to improve statistics for police work.

The country does not have the right to risk positive achievements through the ignorance of one public official.

Secondly, the manner in which Mr Mohylyov is trying to establish order among law enforcement officers is unacceptable from the point of view of the law. The Minister’s admission that he has telephoned regional prosecutors in order that the latter apply harsher measures against police offenders (!) gives grounds for a special check since with such calls, Mr Mohylyov is endeavouring to influence the actions of the Prosecutor’s office at the level of pre-trial investigation. Such actions are unacceptable in a law-based state and we therefore demand an adequate response to the Minister’s actions.

We are thirdly disturbed by the fact that such high-publicity statements by the Minister of Internal Affairs do not elicit any response from the government. If Mr Mohylyov is thus expressing the position of the leaders of the country regarding ways of maintaining order, then we would like to know as much as possible about this position. If Mr Mohylyov was expressing only his personal view, then we would like the government to openly indicate the lack of professionalism and flaws of such actions.

Fourthly, concern is aroused also by the policy of the MIA management aimed at deliberate deception and misinformation of the public regarding MIA activities. An example Is found in the circulation of untruthful information about the supposed retention of the Department for the Monitoring of Human Rights in the police which was dissolved back in spring, and whose employees were made redundant, with this being confirmed by the relevantt notes in their work books.

Expressing confidence that our appeal will be examined, we demand that an assessment of Mr Mohylyov’s statements as a public official, and discuss these issues at a special session of the Government. We are also confident that the leaders of the country will in the near future made all necessary efforts to safeguard transparent accountable position of the MIA. 

Oleksandr Bukalov, Head of the Board of Donetsk Memorial, member of the MIA Public Council on Human Rights (on ensuring observance of human rights in the work of the police)

Arkady Bushchenko

Head of the Board of the Ukrainian Helsinki Human Rights Union

Maxim Butkevych

Member of the Social Action Centre

Volodymyr Chemerys

Former National Deputy, member of the Board of the Respublica Institute, member of the MIA Public Council on Human Rights

Olha Kalashnyk

Vice President of the International Women’s Human Rights Centre La Strada – Ukraine

Kateryna Levchenko

former National Deputy (MP), President of the International Women’s Human Rights Centre La Strada – Ukraine, Member of the MIA Public Council on Human Rights

Oleh Levytsky

Secretary of the MIA Public Council on Human Rights, bar lawyer

Volodymyr Yavorsky

Executive Director of the Ukrainian Helsinki Human Rights Union

Yevhen Zakharov

Co-Chair of the Kharkiv Human Rights Group, Co-Chair of the MIA Public Council on Human Rights, Member of the Board of the International Memorial Society

15 July 2010

Having received neither explanation, nor apology from the Russian Federation Ambassador in Ukraine, Mikhail Zurabov, as to why he was not allowed into Russia, human rights defender Vasyl Ovsienko addressed this statement to the Ministry of Foreign Affairs of the Russian Federation.

Dear Minister,

At midnight from 22 to 23 July, 2010, in Bryansk, Russian border guards removed me from Train No. 42 heading for Moscow, and sent me back to Ukraine. My name turned out to be on a list of people banned from entering the RF.

I was travelling to the village of Kuchyno in the Perm region, where I was imprisoned in the special regime labour camp VS-389/36. There is now a world-known Museum of the History of Political Repression and Totalitarianism “Perm-36”. The Director of the Museum had invited me to take part in an International Civic Forum “Pilorama-2010” [the word refers to a power saw bench  – translator). I was hoping to meet with former Soviet political prisoners, to light a candle at the place where they buried Yury Lytvyn, Ishkhan Mkrtchyan, Vasyl Stus and others who died there.

The media have reported that Ukraine’s Ministry of Foreign Affairs approached their Russian counterpart seeking an explanation for why I was refused entry. There was a telephone call on this matter between the Head of Ukraine’s MFA Konstantin Hryshchenko and the Acting Head of Russia’s MFA Andrei Denisov. It is reported that this issue was discussed at a meeting between Ukraine’s Ambassador to Russia and the leadership of the Russian foreign policy department. And that the Russian side at a high level expressed regret over the matter. Ukraine’s MFA Press Secretary, Oleksandr Dikusarov, added “We consider the unfortunate incident closed”.

I do not consider the incident closed and would ask you, Minister, to explain who, when and on what grounds put my main on your blacklist?

After all this occurred a mere two weeks after the Department for information processing and press of the Russian Federation Ministry of Foreign Affairs stated that the Russian President Dmitry Medvedev had taken the decision on a bilateral basis to abandon the practice of so called blacklists, this reflecting the new nature of relations between Moscow and Kyiv.

In my view, the “innovation” lies purely in the fact that previously they took me into Russia under convoy, and now they don’t let me visit my own prison.

And the “mutual” nature is clearly in the fact that before this Ukraine allowed entry of Deputy of the Russian State Duma Konstantin Zatulin and the Mayor of Moscow Yury Luzhkov who are calling for the city of Sevastopol and the entire Crimea to be handed over to Russia, and Russian citizen Gundyaev – Patriarch Kyril – openly preaches in Ukraine the “unity of the Russian world”. That is, they call for a violation of Ukraine’s territorial integrity, and nobody expels them from Ukraine.

I am not a politician. I work in the Kharkiv Human Rights Group, collect and publish material about Soviet political prisoners. And also about those responsible for punitive measures. All that I write can be read here: http://khpg.org/archive/index.php

Perhaps my writings were the reason for this ban? After all there have never been any incidents in Russia. In 2005 I went to the Perm-36 Museum, as well as to Solovky and to the Sandarmokh Clearing in Karelia, where many political prisoners were shot. Then in 2006 I was in Moscow for the celebration of the 30th anniversary of the founding of the Moscow Helsinki Group, now again persecuted in Russia.

Minister, I would ask you to explain what I have done wrong before Russia which I worked for over 10 years of captivity.

Please relieve me of my doubts, regarding whether President Medvedev spoke the truth when he said that blacklists had been abolished, if after my incident a Danish citizen, Ms Mari Bastaszewski, a photographer, who works on disappearances in the Caucuses, was on 28 July also refused entry to Russia.

So that citizens of other countries don’t check in the Russian MFA to find out if they’re on the blacklist, and don’t waste time and money on preparing for trips to Russia, perhaps it would be a good idea to publish these blacklists?

Last night Vasyl Ovsiyenko, member of the Kharkiv Human Rights Group and former political prisoner who spent more than 13 years in Soviet labour camps and prisonS, was removed by Russian border guards from a train from Moscow to Bryansk. The border guards sent him back to Ukraine having found his name on a list of people refused entry to the Russian Federation.

Vasyl Ovsienko was travelling to the village of Kuchyno in the Perm region, to the Museum of the History of Political Repression and Totalitarianism open since 1996 in part of Perm-36, the especially harsh regime labour camp. Mr Ovsiyenko was himself a prisoner in that camp from 1981-1987. It is the camp in which the poet Vasyl Stus died, which played a major part in the deaths of Oleksa Tykyhy, Yury Lytvyn and Valery Marchenko.  Other Ukrainian human rights defenders imprisoned there included Levko Lukyanenko, Mykhailo Horyn, Ivan Kandyba, Ivan Sokulsky and Ivan Hel.

Mr Ovsiyenko has been at the Perm-36 Museum several times, the last time being in 2005, and he is a member of its Council. He had been invited by the Director of the Museum to take part in an International Civic Forum.

It can be assumed that the Russian Security Services have been following Vasyl Ovsiyenko’s publications.

It would also seem that they have little concern for the principles enshrined in their own Constitution, especially those of freedom of expression.