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European Parliament Draft Resolution on Ukraine finally agreed

A draft resolution on Ukraine has finally been posted on the official website.  It follows considerable lobbying by members of the present Ukrainian regime, including expensive wining and dining, and lobbying by different political forces.  Two parties have taken very pronounced states with the Socialists and Democrats having openly signed an accord with Yanukovych’s Party of the Region, while the centre-right European People’s Party (EPP) group in its early version voiced concern about "the rise of attempts at intimidation [and] growing undemocratic and authoritarian tendencies in Ukraine".

The resolution is to be voted on today, 25 November. As can be seen, it makes fairly hard-hitting statements regarding concerns over the elections, the role of the Security Services, freedom of speech and others.

Elmar Brok, José Ignacio Salafranca Sánchez-Neyra, Michael Gahler, Ioannis Kasoulides, Gunnar Hökmark, Inese Vaidere, Paweł Zalewski, Cristian Dan Preda, Lena Kolarska-Bobińska, Joachim Zeller, Traian Ungureanu, Jan Kozłowski, Jacek Protasiewicz, Mário David on behalf of the PPE Group
Adrian Severin, Hannes Swoboda, Marek Siwiec, Kristian Vigenin, Vilija Blinkevičiūtė on behalf of the S&D Group
Adina-Ioana Vălean, Siiri Oviir, Johannes Cornelis van Baalen, Jelko Kacin, Marielle De Sarnez on behalf of the ALDE Group
Rebecca Harms, Werner Schulz, Indrek Tarand on behalf of the Verts/ALE Group
Charles Tannock, Paweł Robert Kowal, Adam Bielan, Ryszard Antoni Legutko, Ryszard Czarnecki, Tomasz Piotr Poręba, Konrad Szymański on behalf of the ECR Group
Jaromír Kohlíček on behalf of the GUE/NGL Group

European Parliament resolution on Ukraine                                                                                   

The European Parliament,

–    having regard to its previous resolutions on Ukraine,

–   having regard to the Joint Statement adopted at the EU-Ukraine Summit held in Brussels on 22 November 2010,

- having regard to the Final Statement and Recommendations issued following the 15th meeting of the EU-Ukraine Parliamentary Cooperation Committee, which took place on 4-5 November 2010 in Kyiv and Odessa,

- having regard to the EU-Ukraine Parliamentary Cooperation Committee delegation which observed the local and regional elections held in Ukraine on 31 October 2010,

- having regard to the Partnership and Cooperation Agreement (PCA) between the European Union and Ukraine, which entered into force on 1 March 1998, and to the ongoing negotiations on the association agreement designed to replace the PCA,

- having regard to the 14th meeting of the EU-Ukraine Cooperation Council held in Luxembourg on 15 June 2010,

- having regard to the Joint Declaration on the Eastern Partnership launched in Prague on 7 May 2009,

- having regard to the Conclusions on the Eastern Partnership adopted by the Foreign Affairs Council on 25 October 2010,

- having regard to Resolution 1755 of the Parliamentary Assembly of the Council of Europe, adopted on 5 October 2010, on the functioning of democratic institutions in Ukraine,

–   having regard to the European Council conclusions on Ukraine of 16 September 2010,

- having regard to the EU-Ukraine Association Agenda, which replaces the Action Plan and was endorsed by the EU-Ukraine Cooperation Council in June 2009,

- having regard to the agreement between the European Community and Ukraine on visa facilitation, which was signed on 18 June 2007 and entered into force on 1 January 2008, and to the EU-Ukraine visa dialogue launched in October 2008,

- having regard to the Joint Report of the EU-Ukraine Parliamentary Cooperation Committee Working Group on Visa Policy Between the EU and Ukraine, of 4 November 2010,

- having regard to the last-minute changes to the Ukrainian electoral law passed by the Ukrainian Parliament (Verkhovna Rada) in June 2010, shortly before the local elections were held,

- having regard to the National Indicative Programme 2011-2013 for Ukraine,

- having regard to Rule 110(4) of its Rules of Procedure,

A.  whereas Ukraine is a European country of strategic importance to the EU; whereas its size, resources, population and geographical location give Ukraine a distinctive position in Europe and make it a key regional actor,

B.   whereas Ukraine’s newly-elected President Viktor Yanukovych, and the Verkhovna Rada, have confirmed Ukraine’s determination to join the European Union,

C.  whereas allegations have been made that democratic freedoms, such as freedom of assembly, freedom of expression and freedom of the media, have come under threat in recent months,

D.  whereas the Ukrainian Constitutional Court’s ruling of 1 October 2010 re-establishes a presidential system of governance; whereas the establishment of a democratic, effective and durable system of checks and balances should remain a priority and the process for achieving this should be open, inclusive and accessible to all political parties and actors in Ukraine,

E.   whereas local and regional elections took place in Ukraine on 31 October 2010 in a calm atmosphere and without incident; whereas criticism has been expressed about some aspects of the organization of these elections, in particular with regard to the electoral law, the procedures for its adoption and some specific aspects of its substance,

F.   whereas following the presidential elections held in January 2010 there are increasingly worrying signs of the erosion of democracy and pluralism, as evidenced, in particular, by the treatment of some NGOs and individual complaints by journalists about pressure from their editors or the owners of their media outlets to cover or not cover certain events, as well as increased and politically motivated activity by the Ukrainian Security Service (SBU) and the misuse of administrative and judicial resources for political purposes,

G.  whereas on 13 October 2010 the OSCE Representative on Freedom of the Media stated that Ukraine has achieved a great level of media freedom, but that it must take urgent steps to safeguard it, and called on the Ukrainian Government to refrain from any attempt to influence or censor media content and to comply with its international media freedom standards and OSCE media freedom commitments,

H.  whereas the Eastern Partnership can offer Ukraine an additional means of integrating with the European Union, but can be successful only if it is based on practical and credible projects and is sufficiently funded,

1.   Emphasizes that, pursuant to Article 49 of the Treaty on European Union, Ukraine may apply for membership of the EU like any European state that adheres to the principles of freedom, democracy, respect for human rights and fundamental freedoms and the rule of law;

2.   Stresses that Ukraine has a European perspective and strong historical, cultural and economic links to the European Union and that it is one of the Union’s key partners in its Eastern neighbourhood, exerting a significant influence on the security, stability and prosperity of the whole continent;

3.   Welcomes the consensus statements by the Ukrainian Government and political opposition on Ukraine’s aspirations with regard to its path towards European integration and its long-term ambition to become an EU Member State; notes that this aim continues to be supported by a consensus of all actors on the Ukrainian political stage; calls on the Ukrainian authorities to establish a common forum to coordinate Ukraine’s political position vis-à-vis the European Union, that forum to consist of politicians from both the ruling coalition and the opposition;

4.   Points out that the 31 October 2010 local and regional elections, although conducted technically in an orderly manner, did not set a new, positive standard; deplores the fact that Ukraine changed its electoral law a few months before holding local and regional elections, leaving too little time to improve the law and prepare to conduct elections in a sound, democratic manner;

5.   Deplores the fact that because registration requests from the opposition parties were not accepted by electoral commissions before the submission of the Party of Regions’ list, the ruling party in effect gained first place on the lists in approximately 85% of the constituencies; notes that owing to the anomalies in the electoral law, which failed to provide sufficient safeguards to protect the established political parties’ right to compete, some parties, such as Batkivshchyna, were unable to register their candidates in several districts and participate in the elections;

6.   Deplores the fact that election rules remain an ongoing subject of discussion; endorses the need to improve the electoral framework and is encouraged by the work done in cooperation with EU and OSCE experts in developing a draft new Electoral Code; notes that a draft for a Unified Electoral Code has now been tabled for adoption in the Verkhovna Rada; emphasises that the transparency of the electoral process is contingent on the clarity of the legal framework; calls on the Ukrainian authorities to ensure that the legislation is finalised in good time, well ahead of the parliamentary elections in 2012;

7.   Is concerned at recent developments that could undermine media freedom and pluralism; calls on the authorities to take all necessary measures to protect these essential aspects of a democratic society and to refrain from any attempt to control, directly or indirectly, the content of reporting in the national media; stresses the urgent need for a reform of the laws governing the media sector and therefore welcomes a recent proposal to introduce Public Service Broadcasting in Ukraine; also welcomes the public assurances given by the Ukrainian authorities that the legal framework needed to establish a public service broadcaster will be concluded by the end of the year; deplores the fact that two independent TV stations, TVi and TV5, have been deprived of some of their broadcasting frequencies; calls on the authorities to ensure that legal proceedings do not result in the selective revocation of broadcasting frequencies and to review any decision or appointment that could lead to a conflict of interest;

8.   Calls on the Ukrainian Government to bring the legislation on media freedom into line with OSCE standards; decisive action in this regard would strengthen Ukraine’s candidature for the OSCE Chairmanship-in-Office for 2013;

9.   Calls on the Ukrainian authorities thoroughly to investigate the disappearance of Vasyl Klymentyev, the editor-in-chief of a newspaper that focuses on corruption in the Kharkiv region;

10. Emphasises the need to strengthen the credibility, stability, independence and effectiveness of institutions, thereby guaranteeing democracy and the rule of law and promoting a consensual constitutional reform process based on the clear separation of powers and effective checks and balances between state institutions; stresses that cooperation with the European Commission for Democracy through Law (Venice Commission) is crucial to ensure that the legislative reform packages that are currently being developed are fully consistent with European standards and values; calls on all the relevant political stakeholders, including the government and opposition, to take part in this process, calls on the Ukrainian authorities to ask the Venice Commission for an opinion on the final versions of draft laws;

11. Calls on all the parties in the Verkhovna Rada to support and promote a system of effective checks and balances in connection with the legitimate working of government;

12. Calls on the authorities fully to investigate all reports of infringements of rights and freedoms, to remedy any violations identified and to investigate the role of the SBU with regard to interference in the democratic process;

13. Highlights Ukraine’s pivotal role in the European Union’s energy security; emphasises the importance of stepping up cooperation between Ukraine and the EU in the field of energy; calls on Ukraine to implement its commitments arising out of the Joint Declaration of the EU-Ukraine International Investment Conference on the Modernisation of Ukraine’s Gas Transit System; calls for further agreements to be concluded between the EU and Ukraine aimed at securing energy supplies for both sides, including a reliable and diversified transit system for oil and gas; emphasises that if Ukraine is to have a modern gas transit system, it requires transparent, efficient and high-quality transit services through a modernised gas transportation network; calls on the Commission to provide the necessary technical assistance in order to improve radically the energy efficiency of Ukraine’s electricity grid and to step up cooperation as regards reform of the gas sector, in order to bring it into line with EU standards;

14. Is encouraged by the progress in the negotiations on the EU-Ukraine Association Agreement, in particular its deep and comprehensive Free Trade Area (DCFTA) aspects; notes that the conclusion of the negotiations on the agreement depend on the ability and willingness of the Ukrainian side to approximate its laws and regulations with those of the European Union; calls on the Commission to negotiate the DCFTA with Ukraine in such a way that its provisions not only open up EU and Ukrainian markets for mutual beneficial trade, but also support the modernisation of the Ukrainian economy; stresses that the DCFTA should make for Ukraine’s gradual integration into the EU internal market, including the extension of the four freedoms to the country; urges the Commission and Ukraine to make rapid progress in this field, on the basis of Ukraine’s achievements as a member of the WTO; urges both parties to do everything needed to achieve final agreement in the first half of next year;

15. Calls on the Ukrainian authorities to step up efforts to fight corruption; expects, in this regard, that positive political statements will be matched by decisive action in combating corruption at all levels, on the basis of political impartiality; calls for the establishment of a level playing field for business and for application of the same rules to domestic and foreign investors; in that connection, deplores the over-involvement of big business in political life;

16. Urges the Ukrainian Parliament to enact the draft law ‘on access to public information’ in keeping with European and international standards;

17. Welcomes the Action Plan towards visa liberalisation for Ukraine as agreed at the 14th EU-Ukraine Summit on 22 November 2010; considers the Action Plan to be a practical tool to drive forward essential reforms in the relevant areas; points out, in particular, that consolidation of the rule of law and respect for fundamental freedoms will be crucial in order to meet the benchmarks for visa liberalisation; calls on the Commission to assist the Ukrainian authorities in their efforts to advance towards visa liberalisation;

18. Urges the Member States to abolish fees for processing national and Schengen visa applications for Ukrainian citizens as an intermediate objective;

19. Asks the Commission to work with the Member States and Ukraine to prepare special measures to be taken in relation to the 2012 European Football Championship, with a view to facilitating travel by ticket-holders, and to use this special occasion as a testing period for a final visa-free regime;

20. Welcomes Ukraine’s active support for the Eastern Partnership and the Euronest Parliamentary Assembly; urges the Council and Commission to further step up cooperation with Ukraine in the context of developments in the neighbourhood area, in particular the development of policies for the Black Sea region;

21. Stresses the importance of stepping up cooperation on youth and student exchanges and the development of scholarship programmes which will enable Ukrainians to become acquainted with the European Union and its Member States; believes that the Erasmus higher-education exchange programme should be extended to students from the six Eastern Partnership countries;

22. Instructs its President to forward this resolution to the Council, the Commission, the governments of the Member States, the President, Government and Parliament of Ukraine and the Parliamentary Assemblies of the Council Europe and the OSCE.

Questionable Efforts

When there’s nothing worth praising, you soften the criticism by saying the person tried hard.  This was presumably the motivation behind welcoming “the increase in legislative activity” in the Parliamentary Assembly of the Council of Europe’s October report on Ukraine.

In the wake of the 31 October Local Elections, run according to one piece of “legislative activity”  the words seem grotesque mockery. You can’t deny that the new regime tried hard. Nor that they got the result sought. This seems to finally have penetrated with US and EU observers who have issued the according statements. Obviously diplomatic niceties cannot be entirely ignored. However in a situation where television channels say only nice things about the government, if the EU Representative really must “welcomes the readiness expressed by President Yanukovych to draw lessons from the local elections”, it would seem expedient to ask immediately what lessons and when.

The time has passed for politely nodding our heads when the Deputy Head of the President’s Administration writes “letters in defence of democracy”, while not saying a word when a law is passed which stacks the odds in favour of the ruling party. After all, warnings about inevitable electoral violations and imbalance were voiced by Ukrainian and international experts from the outset.

And what kind of “defence” does Ms Herman have in mind when the President’s Administration is collecting information about the political preferences and “influence” of all figures in leading positions in the regions?  This is manifestly aimed at establishing anything but democratic control over society.

Only scepticism can be felt at the creation on 5 November by the President of a “Commission for the Strengthening of Democracy and Affirmation of the Rule of Law.”  The aim sounds noble, of course, which is presumably what is counted on, as well as he fact that the newly appointed Head, Serhiy Holovaty, is well-known in Strasbourg and Brussels.

European bodies, including the Venice Commission, were also well aware of the work achieved by the body with almost the same name abolished back in April by President Yanukovych. The National Commission for the Strengthening of Democracy and Affirmation of the Rule of Law had received positive assessments for its work on judicial reform.  Yanukovych however decided he could do better alone and first got rid of the Commission, and then signed his changes into law without – as promised – awaiting the Venice Commission’s assessment of the Law on the Judiciary and Status of Judges. The assessment received in October is negative, with most comments applying to the new changes which further weaken judicial independence.

The new regime is just as lavish with assurances about conclusions which will be drawn from the Venice Commission’s assessment.  Only one conclusion seems evident – that Serhiy Holovaty has more chance of hypnotizing European officials with a moving refrain about commitment to democracy. They don’t have to be convinced, after all, as long as the fine words keep flowing.

When the words are used for propaganda purposes and the aim of such “legislative activity” fairly hits one in the eye, the danger of welcoming empty assurances becomes palpable.

Ukraine has obligations before the Council of Europe and these are being flagrantly ignored, both in laws passed and those stalled.

In March the President’s “legislative activity” was confined to the creation of a “National Anti-Corruption Committee” and delaying the entry into force of fundamental anti-corruption legislation. In theory the laws will come into effect from 1 January 2011, but as they say, don’t hold your breath. After all, those same parliamentarians who in July were in such a rush to pass the President’s version of “judicial reform”,  on 2 November rejected a draft law proposing mandatory declaration by high-ranking officials and their families of expenditure, as well as one aimed at clearly defining conflict of interests to prevent officials using their position for their own ends.

The parliamentarians clearly saw these laws as conflicting with their interests, while the Party of the Regions went one step further, with an alternative draft law on access to public information.  Parliament’s failure to adopt the law drawn up by civic organizations and approved by European experts was largely due to lack of support from the Party of the Regions.  This is in such overt breach of the Party’s promises that a new tactic has been adopted. The draft bill tabled by Olena Bondarenko and Volodymyr Landys, is full of fine words, little access and seems aimed at stalling the adoption of any law.

It is absolutely clear how vital a contemporary law on access to public information is for Ukraine. It is a fundamental obligation before Europe, and any diplomatic phrases, if it is stalled again, can only jeopardize still further Ukraine’s democratic development.

Given the uncertain fate of the law on access to public information, as well as hardly unfounded pessimism regarding the regime’s plans to fight corruption, not the opposition, we would be unwise to forget yet another piece of “legislative activity” passed without hesitation by the ruling coalition. Passed seemingly with only noble aims since who would deny the need for personal data protection?

The question is, of course, rhetorical however the specific Law “On Personal Data Protection” was condemned by human rights, media and business groups, including the Association of Ukrainian Banks. Their calls on the President to veto the law were ignored and it is due to come into force on 1 January 2011.

The difficulties experienced by Ukraine’s legislators in providing clear and unequivocal definitions are notorious, yet this law is in a class of its own. Virtually everything which can serve to identify a person is defined as “personal data” and therefore protected by law. It will shortly be illegal to circulate any information, including a person’s surname, without the person’s written consent, unless s/he is a first category public servant. The President seemed unbothered even by the clear warning from the Association of Ukrainian Banks of the dangers posed “for the restoration and development of Ukraine’s economy”.

Perhaps the reader believes that commonsense can be expected to prevail, that you won’t seriously need to obtain written permission to name any other public official, bank client, witness of an accident, etc. No optimism is called for. What will prevail, as is becoming increasingly common in Ukraine, is an absolutely selective application of the law. When “needed”, it will most certainly be dragged out to prosecute a journalist, civic activist or business person.  It is this possibility that places freedom of speech in grave danger.

All this and other examples of legislative activity also jeopardize Ukraine’s economic prosperity.  A government which conceals information about its expenditure and activities; which doctors laws and uses enforcement and regulatory bodies, the courts, etc, to serve its own ends, will not balk at using similar methods against foreign investors.

Ukraine needs investors and western support. These are levers and should be applied – in defence of democracy.

KHPG: On the Outcome of the Mayoral Elections in Kharkiv (updated)

The Kharkiv Human Rights Group considers the announcement of the results of the elections for Kharkiv Mayor to be hasty and premature. This is in view of how the results of the vote count by territorial electoral commissions [TEC] is taking place in a situation where two candidates – Arsen Avakov and Hennady Kernes – have gained a similar number of votes and where even small mistakes in the counting could influence the final outcome. This is demonstrated by the following facts.

During the examination by the TEC of protocols and other electoral documents from the precinct electoral commissions [PEC] it transpired that at some polling stations there had been delay in stamping as withdrawn the name of a person (A. Denysenko) who had opted out of the mayoral race five days before the elections. At some polling stations the commissions did not even know that Denysenko was not standing and did not stamp him as withdrawn, counted the votes and handed the protocols to the TEC. At some polling stations all ballot papers without the stamp “withdrawn” were declared void. For example, at polling station No. 30054 there were 654 such papers, and at No. 30070 – 418.  There were more than 9000 spoiled ballot papers at all polling stations, and one can say with certainty that it was the TEC that were to blame for those votes declared void because they didn’t have the withdrawn stamp on them. Four days was entirely sufficiently to inform all PEC about this. In our opinion the people who came to the polling station and used these ballot papers were quite unfairly and unlawfully deprived of their right to vote, and we are convinced that the TEC was obliged to apply the law in the same way everywhere and examine invalidated ballot papers at all polling stations.

Packets with electoral documentation being transported from some PEC to the TEC were damaged. The fact that some of the packages were not intact aroused suspicion and an application for a recount at 56 polling stations. The TEC did not, however, adopt the necessary decision.  

The TEC did not accept protocols from a number of polling stations and returned them for clarification, at some polling stations – for a recount. In general drawing up corrected protocols because of minor errors during the vote count is normal. However in the given instance one is disturbed by the secrecy of the process with the corrected protocols not even being given to members of the TEC. The results from them were not announced, observers from political parties and journalists did not have access to the stage where the commission was seated, and the examination of the final 11 protocols on 4 November took place entirely behind closed doors. The TEC passed a decision to remove everybody from the hall. There were cases where the TEC called the head of a commission who rewrote the protocol right in the TEC premises and put the stamp on it.

In breach of the law, the TEC decided that the results of the election should be counted by technical staff of the city executive committee and members of the TEC were simply not allowed to take part in this process. They were not even permitted to look at the results on the computer. It is unclear what computer programmes were used. The members of the TEC thus approved a protocol on the results of the voting, effectively not knowing how the information they voted for had been formulated.  5 members of the TEC were in any case absent.

The TEC has still not managed to examine 190 complaints alleging electoral infringements, and from 10 PEC where the TEC had previously ordered a recount, only one has provided the results of this recount. Nonetheless, the TEC has turned the page on an as yet incomplete process.

We have presented only some of the cases we are aware of which influence the outcome, and have not touched on numerous violations of the Law on the Local Elections where it is not possible to draw conclusions about their direct influence on the results of the voting. There were a huge number of such violations detected by observers and representatives of political parties in the very process of voting at polling stations; during the vote count at polling stations, the transporting of the ballot papers to the TEC, during the work of the TEC. Superfluous protocols were found, there were cases where members of the PEC signed blank protocols; electoral documents from electoral precincts were packed in the premises of the TEC without the participation of members of the PEC; the mandatory details on the packages with electoral documentation handed to the TEC were missing; the votes were counted and protocols drawn up by members of a PEC from one political party only; there was no substantive examination of fairly numerous complaints regarding violations of the electoral law.  

Taking into account these facts, the results of the elections in Kharkiv cannot be recognized.  There must, at very least, be a detailed analysis of the spoiled ballot papers at all polling stations and a recount at polling stations where corrected protocols were drawn up. However given the excessive number of infringements, the best solution, in our view, would be to hold a rerun of the Kharkiv Mayor Election.


Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group

The 31 October Elections did not meet international standards

At a press conference on Friday the civic organizations which monitored the October 31 Local Elections gave their overall – and very negative - assessment.  Olha Aivazovska, Head of the Civic Network OPORA said that the 2010 local elections could not be considered honest, transparent and democratic. She stressed that OPORA’s conclusions were based on the results of short- and long-term monitoring and that they applied the criteria set out in documents from the Venice Commission, the Copenhagen Conference and the OSCE.

The Secretary of the Civic Assembly of Ukraine, Andriy Kohut stated that “the organization and course of the 2010 Local Elections demonstrated a clear move by the regime backwards, towards disregard for democratic standards and freedoms. Civic Assembly of Ukraine representatives in the regions consider these elections to have been the worst in the last five years. An overall assessment of the elections (from the adoption of the Law which significantly reduced rights, established particular preferences and restricted public control, to the process for determining the outcome) gives grounds for asserting that the 2010 Local Elections did not comply with the standards for free, honest, fair and transparent elections.”

Head of the Laboratory of Legislative Initiatives, Ihor Kohut said that Ukrainian democracy had proven to be limping. While the elections could be called free, there were well-founded doubts as to their honesty and fairness. He also spoke of a movement backwards.

Participants in the press conference reported that key problems in the legislation on the local elections had already become evident or would in the next few days. They said that the electoral system, the quality of electoral commissions, of the procedure for the vote count and appeals by those taking part in the elections needed detailed analysis. This would only take place in the Ukrainian public demonstrated the will for high-quality political change and the intention to learn from mistakes.

According to Natalia Lynnyk from the Committee of Voters of Ukraine [CVU], “many articles of the law on the local elections do not meet universally accepted democratic norms and standards. There is an urgent need for an Electoral Code which standardizes electoral procedure and promotes honest and democratic elections. Stable rules for holding elections would have significantly improved their organization and running since members of the precinct electoral commissions could once and for all master electoral procedure and properly improve their skills from election to election.”

Ms Aivazovska said that OPORA had carried out an analysis of how the local elections complied with international standards.  She pointed out that in breach of accepted standards electoral legislation had been changed less than a year before the elections. Unbiased work of electoral commissions had not been ensured via their formation on a professional and politically balanced based.  This meant that some political parties received a majority sufficient for them to adopt any decision.

The territorial electoral commissions [TEC] had created obstructions for registration of certain candidates or parties. Most of the potential electoral candidates had managed to appeal against the actions of the TEC in the courts, yet the TEC had selectively implemented the court rulings or dragged out the process.

The authorities and law enforcement bodies were not sufficiently active in responding to reports of the use of administrative resources, threats and pressure on candidates, physical or psychological violence against particular participants in the elections.

The problem of quality preparation and the lack of strict control over the printing of ballot papers had deepened distrust in the elections as a whole. The Copenhagen document clearly stipulates that procedure must ensure reliable protection of ballot papers and other documentation.

On Election Day a number of organizational procedures were violated, with the principle of individual and secret voting not being observed.

The issue of the vote counting is particularly acute in the light of fierce and at times unhealthy competition, the lack of balance in representation of political forces in the commissions at various levels. OPORA was witness to by no means isolated cases where stamps were taken out of the precinct electoral commission premises, this being directly prohibited by law and members of the precinct level commissions themselves correcting protocols in the TEC premises.

Andriy Kohut pointed out that “the public had the possibility of observing but everything was done to prevent fully-fledged public control. It is important to understand that even if Election Day passed reasonably peacefully, the elections began with the passing of a Law which considerably reduced rights, established particular preferences and restricted public control.”

All members of the Civic Assembly pointed to a considerable use of administrative resources which had not been noticeable over the last five years. They stressed also that the election results had still not been fully established, and that there had been noticeable attempts at manipulating the results and officially restricting public control.  The Civic Assembly could report numerous cases where observers had been illegitimately removed, even with the words that “they were looking too carefully” (in Odessa), while the Kharkiv Electoral Commission will finish the vote count effectively without any possibility of ensuring that it is observed.

OPORA highly critical of October 31 Elections

The civic network OPORA has published its Interim Report on the October 31 Local Elections. It is considerably more damning than the report from the Committee of Voters of Ukraine and than the fairly cautious remarks made by European observers.

OPORA: Infringements made elections ’undemocratic’  (translation by Kyiv Post)

Editor’s Note:The following is a preliminary report on the October 31 local election produced by OPORA, a US-funded observer mission. OPORA came out on Nov. 1 with the sharpest criticism of Ukraine’s Oct. 31 regional election calling it "nondemocratic, nontransparent and not open." With nearly 1,500 of several thousand observers following the election, OPORA, together with the Committee of Voters of Ukraine, was the largest group monitoring the election, before and after. Its assessment of the election differs greatly from that of Russian observers, who praised the election as democratic, and a small group of European observers, who were cautious in their preliminary judgment. Supported by the United States Agency for International Development and the National Democratic Institute, OPORA is a civic network, a nonpartisan nongovernmental organization. It had 177 long-term observers during pre-election environment beginning Sept. 11 across 24 oblasts and the Autonomous Region Crimea. On October 31, OPORA deployed 1428 short-term observers to join the LTOs. Among the STOs, 1,003 were deployed to precinct election commissions (PECs) and 425 to territorial election commissions (TECs). OPORA will conclude its election observation after the official results are publicized.
In general, the Ukrainian local elections were held in an atmosphere of mistrust. The reasons for this mistrust are:
• Many cases which an excessive number of extra ballots were printed right before election day;
• Imbalanced political party representation on electoral commissions at different levels; and
• Fear among candidates of being deregistered right before election day.
Civic Network OPORA states that election day took place with numerous procedural violations and organizational problems. The election day of October 31 is an integral part of the electoral process. However, the honesty, transparency and democratic nature of the electoral process should be assessed based on the conclusions of the long-term observation.
Below are the main election day findings:
1. Many problems reported by OPORA observers during the election may form the basis for appealing the voting results in some precincts:
• Incorrect ballots for single-mandate constituency races were delivered to wrong polling stations, which resulted in no voting at all on those races in polling stations in two constituencies. Because of this, political parties and candidates have grounds to appeal the results in these polling stations.
• PECs stamped out certain political parties and candidates on the ballots that were in reality not deregistered. Political parties and candidates that were stamped out may appeal the voting results in court and demand the nullification of results in these precincts.
• The number of ballots received by PECs from TECs was incorrect in many cases. Ballots were received by PECs during the night from the 30th to the 31st of October, so commission members did not have sufficient time to count the ballots. Some PECs could not explain why they had either too many or two few ballots.
• Ivano-Frankivsk city TEC deregistered candidates and did not notify the PECs on time about the need to stamp out those candidates on the ballots.
• Ballots were printed with mistakes on candidates’ and parties’ names or parties, and candidates were printed in different font sizes.
2. A lack of capacity and knowledge among commission members resulted in violations of the law and poor organization of conduct on election day. Commission members were not well prepared.
• 13% of PECs started their morning meeting before 7am. Thus, candidates, observers, and journalists could not ensure that the safe was locked and sealed before PEC members began the meeting, and that election documentation was properly secured.
• Not all citizens in hospitals were included on the voters’ lists, because employees of medical hospitals and commission members did not fulfill their responsibility to check whether these citizens were on the voters’ lists.
• An insufficient number of voting booths combined with the large number of ballots for each voter led to violations of the secrecy of voting, because voters voted in the presence of third parties. This also led to the formation of long lines. This also caused voters to decide not to vote in some cases.
• Observers and journalists were prevented from observing because of groundless refusals to allow observers into polling stations.
3. There were violations on election day that were intentional offenses. These included taking ballots from polling stations, bribing voters, illegally transporting voters to polling stations, third parties instructing voters who to vote for, taking pictures of ballots, etc.
4. As of 10am, November 1, the vote counting is continuing because of the following reasons:
Zaporizhzhia city TECs have made a decision to take a break until 2pm on Monday, which has prevented from PECs from continuing their work.
PEC members of Obukhiv rayon of Kyiv oblast lack knowledge about the procedures for voting. For example, during the day, some threw away the tear-off vouchers from the ballots that were issued to voters, and they are still trying to find them.
The large number of ballots and many names of the candidates and parties does not allow for a quick ballot counting process.

The full translation can be found here

The original report can be found in Ukrainian at:

Politics and human rights

Brussels informed of human rights violations in Ukraine

Human rights violations in Ukraine and pressure on independent media outlets were the main topics of a press conference held on Monday in Brussels by the Ukrainian Helsinki Human Rights Union, the Vinnytsa Human Rights Group and the independent television channel TVi.

The EU – Ukraine Summit begins a new page in Ukraine’s European integration. While entirely welcoming possible acceleration of the movement towards a visa-free regime and supporting development of bilateral and sectoral partnership, Ukrainian human rights organizations and independent media outlets must point to serious human rights problems which are direct impediments to our country’s European development.

Recognition and respect for democracy and human rights are fundamental European values and effective safeguards for their observance hinge on an effective and fair system of justice, public control over the activities of the authorities, the functioning of an independent press, transparency and openness of State institutions; as well as honest electoral systems free from manipulation and rigging.

Unfortunately the 10 months of Viktor Yanukovych’s presidency have been marked not only by retention of Ukraine’s commitment to European integration and an increase in the number of assurances from officials of their commitment to human rights and democracy.

The press conference addressed cases involving serious human rights violations in various spheres.

For the first time since independence, Ukraine’s corrupt prosecutor’s office and the state medical institutions dependent on it have tried to forcibly hospitalize an absolutely healthy person, human rights activist from Vinnytsa, Andriy Bondarenko.

The authorities under Viktor Yanukovych are continuing the practice of flagrant infringements of freedom of peaceful assembly. The police and other law enforcement agencies are making wide use of intimidation and threats in order to stop people taking part or promoting various protest actions. Activists from the Lviv civic organization “Guards of the Law” have been sentenced to terms of administrative arrest for peaceful protest.  Protesters in Kharkiv have also had their right of peaceful assembly flagrantly infringed, and have had administrative charges fabricated and been threatened with criminal proceedings. Even today, on 22 November, the police prevented 140 coaches with demonstrators wanting to protest against the new Tax Code, getting to Kyiv.

Yanukovych’s team have carried out a campaign of harassment and pressure on civic and human rights activists. Under the pretext of a pornography investigation, involving a clip publicly available on Youtube, the police have virtually blocked the work of the Vinnytsa Human Rights Group, having carried out an unauthorized search of its office and removed all computer technology, confidential files on refugees and asylum seekers, correspondence with the European Court of Human Rights on specific cases. The practice has been revived of putting pressure on activists through so-called prophylactic talks with them, their relatives and the heads of academic institutions. We are also aware of cases where the latter have been forced to exert influence on students’ civic activity.

The Crimean authorities have been harassing human rights activist Andriy Fedosov, whose organization USER defends the rights of the disabled and monitors human rights in psychiatric institutions.

The Ukrainian authorities have not taken any effective steps towards putting an end to the shameful practice over many years of torture and ill-treatment by law enforcement officers. Penal institutions and special places of confinement (illegal migrant centres, psychiatric institutions or homes for adults and children, etc) function virtually without public control or effective legal assistance to those living there who are at great risk of treatment prohibited by international law.

The situation with freedom of expression has worsened sharply. The authorities have not been able to prove that they are taking all measures to uncover the disappearance and probable murder of Kharkiv journalist Vasyl Klymentyev. The stripping of frequencies from TV Channels 5 and TVi were part of a procedure staggering for its lack of logic and arousing numerous questions regarding the lawfulness and proportionality of interference in the activities as well as equal treatment of all television channels.

The press conference was given by: Arkadiy Bushchenko – bar lawyer, human rights defender and Head of the Board of the Ukrainian Helsinki Human Rights Union. Arkadiy has successfully represented applicants in dozens of cases against Ukraine in the European Court of Human Rights;

Dmytro Groisman – lawyer, human rights defender; Coordinator of the Vinnytsa Human Rights Group which focuses on fighting torture, as well as on refugee and patients’ rights.

Mykola Knyazhytskyy is a well-known Ukrainian journalist and the Director of TVi which recently lost the broadcasting rights and most of previously allocated frequencies. Mykola Knyazhytskyy has accused the Ukrainian Security Service [SBU] of unlawful surveillance and intrusion in his private life in 2010.

They stressed that Europeans have the right to the truth about the human rights situation in Ukraine and observance of human rights if a fundamental element of dialogue between Ukraine and the EU.

At present they are convinced the Council of Europe must not stop its monitoring of Ukraine’s implementation of its commitments made when joining the Council of Europe.  They believe that the EU could ensure that all types of sectoral partnership, especially between law enforcement bodies, are linked with adequate fulfilment by Ukraine of its international human rights commitments.

Against torture and ill-treatment

Lesson on Torture from the Kharkiv Police

43-year-old Yakov Strogan from Kharkiv is married and has a stable job.  He became a father several months ago. No reason to believe that suddenly, on 15 August, 2010, his life would turn into hell.

It all began near the entrance to his apartment block. Witnesses say that a neighbour didn’t share something with Yakov and started a fight. The short skirmish resulted in the neighbour falling on broken bottles (which he and his friends had smashed) and cutting his back.  That might have been the end of the incident, but proved not to be.

At night Yakov Strogan was visited by some people who called themselves police officers and demanded that he open the door. He refused and the police officers broke the electricity box, leaving the flat in darkness. They then tried to break the lock and bash down the door. The people involved in this kept changing. Yakov called the police, but was told by the operator that the police had already gone there. 

At 6 a.m. the next morning, he opened the door to two men in plain clothes who identified themselves by their first names, as Oleksandr and Anton. They burst into the flat and took Yakov to the Kyivsky Police Station where it transpired that they had not only arrested him, but had also removed his wife’s telephone.

Then far worse things happened. The police officers first asked Yakov to write a statement confessing to having tried to murder his neighbour and having inflicted knife wounds. When he refused, they decided to “persuade” him in the forest. The Head of the department agreed to his subordinates’ initiative and even instructed them to drop into his place, pick up a “transformer”.

They took Yakov to the forest, when one of the men put on complete camouflage clothes and almost all wore masks. They took out a case with knives and asked Yakov to either sign the statement, or choose the knife that he had supposedly used to wound his neighbour. They said they’d release him after that. He refused.

They then took off his outside clothing, put red ribbons on his wrists and over them handcuffs. They were first chained in front, then from behind. He was put on the ground, one officer sat on his back, and another began twisting his arms and pressing down on his neck. He lost consciousness several times. They revived him with water each other, continuing to demand that he sign the confession. He refused.

They then dragged a device out which they called a transformer, but that basically gave him electric shocks. He lost consciousness four or five times.  The last time, they poured spirits down his throat seriously scalding his throat, oesophagus and stomach lining.

Yakov kept warning them that he has a heart condition and only one kidney.  He thinks this finally stopped them from anything further.

They then took him to a flat where they held him for four days. During that time they rang his wife and demanded that she pay 10 thousand dollars. They told her to bring the money to a lawyer who would meet her near the police station. She promised to find the money. On 19 August the meeting took place between Ms Strogan and a police officer, but the latter was disappointed, since she hadn’t been able to find the money.

The police released Yakov so that he could look for money for them, but he decided to find. The couple approached the Internal Security Department of the Police and then the Prosecutor’s Office asking for a criminal investigation to be initiated. He had a medical examination where they suggesting hospitalizing him. He refused, fearing for his life and health in the district hospital, suspecting that they have an unspoken arrangement with the police.

On 29 October the Prosecutor of the Kyivsky District refused to initiate a criminal investigation, though he has still to receive a document confirming this.

Yakov Strogan turned to the Kharkiv Human Rights Group which called a press conference at which lawyer, Aigul Mukhanova stated that they were taking on the case, and warned that if anything happened to Yakov or his family, it would be clear who to look for.

She says that they are first looking into whether this is part of a pattern for extortion, and notes that many of the details Yakov has given would be impossible to make up. One such example is the use of ribbons to hide bruising under the handcuffs.

She stresses to members of the public that if such a hideous thing happens to them, they should get in touch with KHPG immediately.  They might have been able to do something if Ms Strogan had contacted them straight away.

The prospects, she believes, in Ukraine are not good with it very unlikely that the prosecutor will initiate a criminal investigation and that the case will get to caught. There will be attempts over a couple of years and then the case will go to the European Court of Human Rights.

She hopes, of course, that the Prosecutor will take up the case and that those responsible will be punished.

From reports at KHPG and the Ukrainian Helsinki Human Rights Union

Access to information

Access to information the Party of the Regions way

Taras Shevchenko, Director of the Media Law Institute has provided this legal analysis of the draft Law “On  amendments to some legal acts on ensuring access to public information” No. 7321  tabled in parliament by National Deputies Olena Bondarenko and Volodymyr Landyk.

The draft law is presented as the Party of the Regions alternative to Andriy Shevchenko’s draft Law on Access to Public Information, therefore some of the positions are presented with comparison.

On 2 November National Deputies from the Party of the Regions, Olena Bondarenko and Volodymyr Landyk formally registered their law on access to public information, this meaning that the Party of the Regions will not be supporting the draft law from civic society and tabled by Andriy Shevchenko which has already been passed in its first reading.

Time frame for answering information requests

Announcing their draft at a meeting of the Committee on Freedom of Speech and Information, and giving grounds for their refusal to support the draft law already awaiting its second reading, Olena Bondarenko stated that her draft law contains very many democratic provisions. These included providing an answer within 5 working days.

It transpires that Ms Bondarenko failed to carefully read the draft law she was asked to table. Article 45 of this draft law states: “The time frame for studying whether it is possible to answer an information request must not exceed five working days”. However study of this question and provision of the information are different matters.

Another sentence reads: “The overall period for studying and answering an information request may not exceed twenty working days”.

20 working days is virtually the same as the 30 calendar days in the current Law on Information. This is despite the fact that even President Yanukovych spoke out in favour of a considerably shorter time frame.

The logic is also not clear behind the establishing of a time frame for studying and one for providing information which the Shevchenko draft bill rejects. The current law stipulates 10 days for studying and 30 for providing access only because it was passed in 1992.

It was envisaged that the authority does not send a copy of the document, but invites the person to come to them in order to see the document. It was therefore stated that 10 days were given for notification and 30 days for everything. Retaining this now is senseless. It would appear that the authors of the initiative are not experts in the subject they have been working on.

The three-tier test

Olena Bondarenko’s draft law does not contain one of the most fundamental guarantees regarding access to information known as the three-tier test. The point of this test is that even if a document is not on open access, the official having received an information request should assess the document according to 3 criteria:

1)       Is a legitimate interest served in restricting access?

2)       Would its divulgence cause considerable damage to the interest?

3)       Is the damage from making it public more important than the interest to society in receiving it?

If there is even one negative answer, then the document should be provided in response to the request. This formulation is applied for court analyses of refusals to provide access to information. The current law does not contain such rules however they are present in Shevchenko’s draft bill.

The definition of false information is a threat to journalists

At the committee meeting, Olena Bondarenko also boasted that they had worked well on terminology and that this was a strong point of their draft law.

How far this differs from the real situation can be demonstrated by one example, the definition of false information.

“False information is information which for one reason or another inadequately represents the state, qualities or features, characteristics of subjects and objects (things, processes, technologies, resources, etc), facts, events, phenomena etc”.

This definition may be OK for a dissertation on mass communication however the legal term “false information” is in the first instance used in courts in defamation suits against journalists.

From the point of view, therefore, of the Party of the Regions, if a journalist “inadequately represents the qualities or features of subjects”, this means that s/he circulates false information. Although in actual fact a description of qualities is a value judgment for which a person cannot be held liable.

The authorities can again harm the media

Bondarenko’s draft law reinstates the right of the authorities and bodies of local self-government to take journalists, the media and members of the public to court and demand moral compensation for information circulated.

That is, the version of the law on information from the Party of the Regions does not contain the article which was one of our major achievements back in 2003,  The law now in force states that an authority may demand only that the information be retracted, not money.

This is a highly democratic norm of which we are proud. It makes it possible to freely criticize the authorities and to circulate information about corruption.

Having carried over some other positive innovations from 2003 – on value judgments, information of public significance, the draft law’s authors removed the restriction on the authorities. I do not think that this was by chance.

The access regime

Having copied a number of positive norms regulating the procedure for access to information from the civic organizations’ draft law tabled by Shevchenko, the authors made a huge number of blunders. For examples, the grounds have now appeared for turning down a request because “the telephone number or email address of the person asking is not given”. This is despite the fact that neither the telephone number, nor the email address even according to this draft law are not mandatory, and do not in fact have to be there at all.

There is worse to come in the requirements regarding the content of the refusal. In contrast even to the current law on information, the Party of the Regions have decided to get rid of the State’s duty to explain the grounds for a refusal.

Instead they need to simply name a reason, and the reasons proposed by the draft law are extremely vague and can be interpreted as they like

Unlawful secrecy stamps

Unfortunately, Bondarenko’s draft law does not remove the issue of unlawful stamps “not to be printed”, “not to be published”. There is a very badly written article on official secrecy which leaves all the existing “holes” intact while providing extremely broad possibilities for closing access to very many documents.

For example, the draft law states that “official secrecy includes information the divulgence of which could violate the constitutional rights and freedoms of individuals and legal entities, information in the sphere of … territorial integrity or public security, for the purpose of preventing disturbances.”  

I find it hard to imagine what “information in the sphere of territorial integrity is”. The working group which drew up Shevchenko’s draft law worked on these norms in detail in order to prevent unending possibilities for the use of the stamp “For official use only”.

Fine-sounding abstractions

A considerable amount of the text is made up of fine-sounding abstractions.

For example, I quote: “Information which is in the possession of those in authority is published in the printed press”. It sounds good but has no legal meaning. All information is printed in the press? Which in particular? When? On what conditions?

With respect to conditions

According to the draft law, “the procedure and timeframes for publication of information of those in authority is stipulated by agreements made between the relevant authorities and editorial offices of printed media outlets”.

The text repeats the problem of current legislation being written so that it is unclear whether a media outlet can publish information without an agreement. It is just as unclear whether by this agreement the authority pays the media outlet for coverage or whether the media outlet pays for receiving information.

Among other things, such lack of clarity in practice leads to abuse by the authorities which refuse to give access to information since no agreement has been formulated.

The right of ownership of information

The draft law retains the concept of the right of ownership of information and State ownership of information. Already now the authorities often refuse to provide information claiming that it is their property.

The Constitutional Court, for example, refused to provide the Media Law Institute with expert opinions from law institutes undertaken at the request of the Constitutional Court and acted to the case file. The Court claimed that these were the private property of the institutes (State-owned, incidentally),

That is not the main thing, however. The formulation “the right of ownership of information” may sound absolutely fine to the person on the street however this is not the case in the legal sphere. When somebody has had a piece of text stolen, their authors’ rights have been violated, not their property rights.

The use of the right of ownership would lead to distortions, as with the example of the Constitutional Court, and it is therefore not applied either in Europe or in the USA. This is a Ukrainian invention which, incidentally, they wanted to repeat in the law on personal data protection, this serving on a number of occasions as the grounds for vetoing that law.

Narrowing of the realm of open information

Bondarenko’s draft law is considerably narrower than that tabled by Shevchenko and indicates the circle of people who can be sent information requests.

Having followed the logic of the Shevchenko draft, the authors removed:

1)       people / entities funded by the State budget with regard to expenditure of public funding – for example, State-owned universities, State-owned media outlets;

2)       people / entities carrying out delegated powers, as well as

3)       people / entities, regardless of their form of property, in possession of information of public importance.

Instead the draft law states that those asking for information may, according to this law, also be public authorities. That is incorrect – the right of the authorities to ask for this or that information is defined by separate laws, with the specific features of the body taken into account.

Other forgotten guarantees of access

Many positive norms over which experts worked for several years have found mention in Bondarenko’s draft law.

For example, there is no defence envisaged for public officials who disclose information of public importance about corruption, misappropriations, etc.

We should recall SBU [Security Service of Ukraine] General Kravchenko who disclosed information about SBU surveillance of opposition leaders abroad.  Criminal proceedings were initiated against him for divulgence of State secrets. Such an article in the law should provide protection in similar cases.

There is also no norm which stipulates the number of papers provided in response to an information request free of charge. Such a guarantee prevents abuse by an authority which can charge even for copying one page.

Shevchenko’s draft law stipulates that up to 50 pages are provided free of charge. This number was, however, reduced to 10 at the last meeting of the committee.

Good norms in Bondarenko’s draft law include the articles which oblige all authorities to place information about themselves on official websites. This includes all their decisions. Only the amount of information has been significantly reduced – for example, they don’t have to write about “budgetary funds, the procedure and mechanisms for spending them”.

Bondarenko’s draft law also fails to include a clear time scale for making information public. In the draft law drawn up by civic organizations this is 5 days.

Olena Bondarenko’s draft law is thus extremely weak. In many cases it does not improve, but worsens the situation both as regards access to information, and with regard to freedom of speech as a whole.

To now reject a draft law which has already passed through many rounds of discussion, international expert assessments, and was supported by deputies in its first reading in order to begin again, almost from scratch, makes no sense.

Is this highly flawed draft law an indication that the Party of the Regions does not take it seriously?  And this is merely a delaying tactic, as well as an inept explanation to the voters for why they are not voting for a draft law put forward by civic society.

If the Verkhovna Rada rejects Shevchenko’s draft law, this will mean that the entire campaign for access to information has been aborted through the fault of the Party of the Regions.

Aborted consciously and cynically, and the President’s problems will be hollow noise.

Taras Shevchenko, Director of the Media Law Institute

Freedom of peaceful assembly

After imprisonment on an administrative charge, no administrative offence detected

According to Lidia Topolevska, Head of the Sim Centre for Legal and Political Research, the Court of Appeal failed to find any administrative offence in the actions of Ihor Tanichkevcyh, who, together with human rights activist Oleksiy Verentsov, was sentenced in October to 3 days administrative arrest for “holding an unlawful protest outside the Lviv Regional Prosecutor’s Office” They in fact spent four days in custody.

Lidia Topolevska reports that the Lviv Regional Court of Appeal has cancelled the ruling to bring administrative proceedings against Ihor Tanichkevcyh, however it instructed the Prosecutor to check whether he had not committed a criminal offence.

If the Prosecutor fails to come up with any such offence, then Ihor Tanichkevcyh will be entitled to seek compensation for unlawful arrest.

As reported, on 12 October the civic organization “Guards of the Law” held a picket outside the Lviv Regional Prosecutor’s Office demanding investigation of housing services irregularities and under the banner “Down with Prosecutor’s Office corruption!”. This was one of a series of pickets held each Tuesday. 

Oleksiy Verentsov, the Head of “Guards of the Law” had submitted notification about the pickets twice – general notification several months before the series of pickets began, and 2 days before the picket on 12 October. Pensioner Ihor Tanichkevcyh was also taken to the station. He had taken part in the picket to protest against the prosecutor’s dragging out examination of his case for years.

The City Council had turned to the court to try to get the picket banned on 11 October, however the court had merely opened proceedings into the case, but had issued no court order. On 13 October the court did impose a ban on the weekly pickets, however obviously only from the next picket scheduled for 19 October (not the one the day before! )

The civic organization, considering the court order to be unwarranted and unlawful, lodged an appeal.

There was thus, at the time of the picket on 12 October, no court order banning the picket. Nor was there any disruption of public order, as can be seen from the videos.

The police nonetheless demanded that the picket be stopped and tried to take the organizers to the police station. They claimed that there was no permit, and this “justification” even appeared in the court ruling despite the fact that Article 39 of the Constitution requires only notification of a planned event, not a permit. For this reason, the demonstrators refused to stop the picket. It should be noted that the Deputy Head of the District Police Department appeared personally to stop the peaceful gathering.

On 14 October Oleksiy Verentsov and Ihor Tanichkevych were sentenced by the Halytsky Court in Lviv to 3 days administrative arrest for disobeying a police officer’s legitimate order and infringing the procedure for organizing a peaceful gathering (Articles 185 and 185-1 of the Code of Administrative Offences).  Due to the court failing to take the day under arrest into account, the men spent 4 days in custody.

Social and economic rights

Tax Code passed despite mass protests

After days of mass protests throughout the country, fights and bitter recriminations in parliament, the Tax Code was passed on Thursday evening.  Analysts criticize the haste with which measures have been taken without consideration of the likely consequences, including a considerable increase in unemployment.

The BBC Ukrainian Service reports that earlier Prime Minister Azarov had asserted that only those who hadn’t read it could criticize it.  After demonstrations gathered many thousands outside the Verkhovna Rada, as well as on the main squares of other cities, Azarov claimed that the protests were testimony to democracy in Ukraine. “We have a free country, therefore those who saw the minuses in the Code came out onto the street and expressed their opposition. The government treated these citizens, their legitimate interests with respect, however, I stress, we are taking the decision in the interests of the overwhelming majority of our society”.

In an interview to Deutsche Welle , Vasyl Yurchyshyn from the authoritative Razumkov Centre, criticized the government for “pushing through” the Tax Code at such speed, without having analyzed the social consequences of major changes for small business, especially the level of unemployment. “No analysis was made of the likely drop in the level of employment. We are talking not only about the trade sector, but the service industry, construction and transport. Nobody assessed what types of work can be provided for those who reject private enterprise. If the state pursues such policy, it should set out such kind of programme for stimulating employment, the programme for retraining people who lose their work or business. I have heard nothing of such programmes.

He believes that a significant increase in unemployment will be only an added strain on public funding. This will mean that the aim of better supplementing the Pension Fund, declared by the government, will not be achieved. He also expects that a fair number of businesspeople will move into the shadow economy. “In a country where the system of tax administration is near the worst in the world, one cannot expect that small businesses will agree to work on “general conditions”, when these are simply too bad.


Proposed Tax Code kills Freedom

The authors of the draft Tax Code claim that their aim is to prevent minimization of taxes and establish optimum levels. Yet the methods proposed for achieving this end are simply devastating and will deprive millions of Ukrainians of the opportunity of working.

We can take the proposals regarding small businesses which have a simplified system for taxing their accounts. The draft code proposes a considerable reduction in the types of activity where the simplified system can be applied.

For those that remain on this list, the single tax rate would be several times higher, while double again for those carrying out business or providing services not only at the place they are registered.

This means that millions of people in Ukraine – programmers and other IT specialists, designers, artists, musicians, accountants, auditors, translators, lawyers, engineers, academics, small-scale producers and others will be deprived, through this Tax Code, of working freelance according to their wish and preference.

Yet it is those people engaging in diverse forms of small-scale business etc who make up the rich tapestry of the world. This means discriminating against people who are capable of acting independently, using their intelligence, their abilities and skills to earn a living. 

Their choice will be seriously narrowed: either to join the grey economy (which is repugnant and, in fact, impossible) or become hired employees, and this when in Ukraine the relations between owners and employees are often similar to feudal relations (and for a free person there is nothing more terrible than to depend on the will of another person), or to emigrate.

We can forget about a market for free professions in Ukraine. Can the government seriously want people who independently earn a living for themselves and their family to leave the country?

The government constantly repeats statements about its wish to reform the economy; create new jobs’ foster the development of modern technologies and intellectual production. Yet with its draft Tax Code the government will achieve the opposite effect.

Furthermore the basis for taxation will collapse, and this is when the budget deficit now stands at 15%, and the government’s debt on social payments is a third of the budget.

What is the government counting on? What does it want?  New serfdom? Is it really not clear that such attempts are today doomed?

If these norms are passed by the Verkhovna Rada, it will be a death sentence to free enterprise and economic independence in Ukraine. The proposed changes flagrantly violate the right of millions to work. People engaged in enterprise will lose freedom of choice of type of work and conditions and will effectively not be able to freely choose their way of life. A person’s right to choose his or her own fate which covers the entire range of human rights and freedoms will be significantly violated.

“Prava Ludiny” (human rights) monthly bulletin, 2010, #11