war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

Politics and human rights

Boris Gudziak: University Rectors should stop being afraid

The Ministry of Education headed by Dmytro Tabachnyk has in a year undertaken an assault on the autonomy of universities and stopped movement towards the Bologna system. This was the view expressed in an interview given to Radio Svoboda by Rector of the Ukrainian Catholic University, Father Boris Gudziak.  He stresses that university rectors, like everybody, need to overcome their fear and trust one another more, upholding their stand.

How do you assess the changes being brought in by the Ministry of Education under the leadership of Dmytro Tabachnyk? To what extent will they affect the Catholic University?

A year of the new leadership has demonstrated a tendency which from the point of view of the needs and interests of higher education is absolutely incomprehensible. Our university, together in fact with seven others – the Kyiv Mohyla Academy, the Kharkiv, Donetsk, Dnipropetrovsk, Chernivtsi, and Lviv State Universities, as well as the “Krok” University of Economics and Law, have been fighting for autonomy since 2005.  However “fighting” is not the word, it’s more that we worked autonomously and that autonomy is based on the calm conviction that university lecturers and administrators, and, of course, the students, are representatives of the elite of society, endowed with critical thinking. After all man is created in God’s image and therefore has free will. This human freedom, this potential and talents need university autonomy. Our group, a kind of consortium of autonomies prepared various directions, from administration to what went in the curriculum. After all each university must have its own features, its own “character”.  Yet now it’s all returning to the principle of “Macdonald in education” where, so to speak, all the fast-food outlets produce the same hamburgers and universities the same students. In a system like that human uniqueness and potential are simply negated.

Over 20 years of independence Ukraine has done very little for establishing autonomy for higher educational institutions. The necessary decisions have not been taken, but discussion has been animated. And the main thing is that general consensus was reached that it was only in giving universities autonomy that a more profound reform in higher education could take place with this, at the end of the day, being a prerequisite for reform in society. Education is not only a system of certain norms for receiving knowledge, and is a certain consciousness, spirit, conviction that thinking cannot be freedom under the pressure of a huge number of restrictions and obstructions. And in fact Ukraine has committed itself to move towards the Bologna system, that is, the European system of higher education which is based on university autonomy.

What in your opinion does the Ministry of Education want?

Control and submissive higher education which will not raise too critical issues, those that “go beyond the test tube”.

What can you say if they have pushed out even Volodymyr Shevchenko, member of the Academy of Sciences and Rector of the Donetsk University for 20 years?  He’s no revolutionary, simply a reputable figure who has great support and respect from his staff and merely defended the property and interests of his university. Maybe he paid for the fact that he was one of the first who brought Lviv and Donetsk closer? It was at his university that the World Congress of Specialists in Ukrainian Studies took place in 2005. That was a landmark event. And such a person with such regalia was pushed out!  And I won’t mention what happened later.

If this is an assault on the autonomy of universities, why do members of your group – rectors of higher educational institutions not counter such actions by the government?

Our consortium has died. I wouldn’t say that it’s time to bury it, but people have got tired of fighting since, I reiterate, the previous government also failed to take clear steps towards establishing university autonomy. Most rectors are in an unenviable position. As has become clear, rectors are dependent, they are psychological dependent and thus are not independent. Each of us has many factors determining our behaviour however the main question is what we are prepared to sacrifice to retain our integrity.

At the present time the Ministry is directly threatening individual universities and rectors, saying it has to be like this, not that, or we will reduce your budget. That has already happened with the Lviv University. Here you could say that this is the crisis, but then you need to reduce all budgets, where it happens selectively like with prosecution of those accused of corruption. There is presently fear with people afraid, the rectors afraid. It would be good to encourage one another but for the moment there is no success with this. Our university has also had a difficult year however the Lord is good, and we see how certain daring steps or steps of sacrifice are nonetheless rewarded.

A fair number of your colleagues say that Boris Gudziak is already – he had a visit from the SBU, they asked for what they had no right to, and he complained to the international community and the Catholic world supported him.

The Catholic world reacted least of all. Europe, Canada and the academic community reacted. And to tell the truth, at that moment I was not expected any great response, but I simply didn’t feel in myself any such fear. I’m without doubt in a different position, I don’t have a family, I don’t have children and grandchildren whom I have to look after, and our university does not receive any State funding. For us in the university our model on which we build our educational programme are the martyrs of the twentieth century – faithful Christians who were not prepared to betray their convictions, their faith, even when this cost them their lives.

However not everyone can be a hero, nor do I consider myself one. I have various weaknesses and feel that I was unprepared for that interference in the university’s matters. That was God’s assistance and blessing, and not only in refusing to cooperate with the SBU officer, but in writing the letter. We had an international delegation and there was no time to edit it. However the text (a very important matter) came out balanced, factual and calm.

There were also people who said: listen, if you have any problems you can count on me. I’m very grateful for such an approach!  I believe it is vital that we all support each other like that. And not only rectors of universities whose autonomy is under attack. We are all dispersed entities.

The Soviet system worked so as to corrode people’s trust in one another. We find it hard to look one another in the eye. We follow every word or gesture, trying to work out what it may mean. When there’s no trust, then there’s no business, no education, not to mention politics – they can’t develop normally.

I therefore think that in situations where a lot of people feel helpless, saying “what can I do to change parliament, the law, the behaviour of the traffic people?!”, the main question is: can I take a step towards trust?

Everything has to begin with small things. If I make some kind of input into our block, maybe my neighbour will come forth too?  After all dirt and neglect are rife in those buildings where each person thinks that even if I do something – tidy, paint, put some flowers, nobody will join in and support the initiative. If we change our thinking, if we try to trust others, people will definitely come forward to support us in a good cause. Definitely.

We undoubtedly have a problem with responsibility. However it turns out that over these years the systems of control which should have controlled these processes have not worked. The more controlling systems amass, the more corrupt mechanisms are found to bypass them. If you constantly besiege a person with various preventive measures, they become irresponsible since their freedom and dignity are denigrated and they say “So what? I’m dirt and will look, behave and smell like dirt!”

We need to raise one another up and that is not a simple process. There is no magic wand which you can wave and everything changes.

Definition of categories pertaining to political persecution

Following the 2010 presidential elections, the new administration steadily moved towards political harassment of their opponents and critics. A lot has been reported about this by the media, Ukrainian and foreign specialists. Therefore the legal and human rights communities need to establish a definition for the categories “prisoner of conscience”, “political prisoner”, “politically motivated persecution” in today’s Ukraine/’   We will be guided in this by the experience of Amnesty International and the Soviet human rights movement of the 1960s to 1980s which defined the above-mentioned concepts and which received further development in numerous documents of the Council of Europe, OSCE and other international organizations.

Generalizing international legal practice while taking into account Ukrainian social and political reality and the experience of the Soviet and in particular Ukrainian human rights movement, Ukrainian history, and taking as a premise the categorical rejection of violence as a means for upholding ones rights and interests, for political or social protest, we propose the following definitions.

Persecution can be based on the law when criminal proceedings are initiated against a person (or their rights are restricted in connection with the initiating of a criminal investigation over a crime), or coercive measures of a medical nature, including psychiatric, are used against a person without grounds; or when a person is accused of committing an administrative offence; or a person becomes the object of civil or economic legal proceedings. The persecution can be entirely unlawful.  This can involve, for example, intimidation via prophylactic talks; threats of dismissal from ones job or expulsion from an academic institution; being deprived of ones work and legal income; unlawful actions by the law enforcement agencies (beating, unlawful gathering of information about a person, unlawful surveillance, detentions, searches, etc); obstruction in circulating information; being forced to join a certain political party; being forced to take part in measures of a particular political party, and so forth. These actions may be carried out both by public officials, or by private groups or individuals with the authorities tolerating such actions.

The persecution is politically motivated if the actions of the State bodies and their officials are based on a) illegitimate considerations of a socio-political nature or b) by actions of the individual persecuted in defending citizens’ rights, freedoms and legitimate interests.

We propose using the definition first presented by Sergei Kovalev, well-known human rights defender and first Human Rights Ombudsperson of the Russian Federation, himself a former political prisoner. According to this we deem a political prisoner any person imprisoned where a considerable and reliably assessed role in their criminal or administrative proceedings can be attributed to the regime’s political motives – and only such a prisoner.  It is of no significance whether it is specifically political causes that prompted the actions which the person is accused of as a crime or offence; what is important is only the presence of political interest of the regime in the result of the case. Since in the application of the law assessments and judgements beyond the framework of the law are unacceptable on principle, political motivation in court proceedings may result in procedural or material infringements such as:

elements of falsification in the charge;

unwarrantedly severe preventive measures or punishment;

 unlawful sentences or rulings regarding administrative offences;

 bias of the court in evaluating the evidence presented by the defence and the prosecution;

 various restrictions regarding the possibility of defending oneself, including with the help of defence counsel;

arbitrariness in choice of evidence, ignoring obvious facts;

use of norms of the law irrelevant to the deed committed;

 selective (discriminatory) nature of court prosecution compared to analogous cases involving others.

We consider it to be without question that full removal must be demanded of any political motivation in the sphere of justice, regardless of the gravity and consequences of the crimes.

It should be noted that besides politically motivated discrimination against those whom the regime deems to be their opponents, it sometimes resorts to persecution of its supporters or those who implement its repressive decisions. This is as a result of internal conflict or in order to mask selective repression. Such persecution is also politically motivated and just as unacceptable.

We propose considering as prisoners of conscience those who are deprived of their liberty on consciously unlawful, from the point of view of international standards, grounds or on unwarranted charges in connection with:

their convictions or public expression, civic or political activity of a non-violent nature which does not demand discrimination against any others;

looking for, retaining or circulating open or publicly important information;

refusing to wear a military uniform or take part in acts of violence due to religious or other convictions.

People who resort to violence or propagate violence and enmity are not considered prisoners of conscience.

For comparison, the Amnesty International definition states that a prisoner of conscience is a person deprived of his or her liberty solely for peacefully expressing their political, religious or scientific views.

The author cites analogous definitions from Council of Europe experts.

Burden of proof

The assumption that a person is a “political prisoner” should be confirmed prima facie by evidence, following which the State depriving a person of liberty should prove that the imprisonment is fully in compliance with the requirements of the European Convention on Human Rights as interpreted by the European Court of Human Rights according to the merits of the case; that the requirements of proportionality and non-discrimination have been observed and that deprivation of liberty was the result of a just procedural review.

Based on the above definitions, one can draw the following conclusions:

There are at present no prisoners of conscience in Ukraine. There are however a fairly large number of people who have been persecuted for political motives. These are participants in protests who are being intimidated in various ways, sometimes connected with violence – business entrepreneurs, students, members of civic organizations, political parties, trade unions, etc; journalists and civic activists with whom the MoI or SBU [Security Service] have held prophylactic talks, or in relation to whom there has been demonstrative surveillance; staff of public sector institutions who, under threat of dismissal, have been forced to join parties, take part in rallies, etc.

In our opinion, the criminal cases initiated against the participants of the Tax Code Protest, the members of the organizations Tryzub and VO Svoboda, as well as former high-ranking officials – Yury Lutsenko and Yevhen Korniychuk – should be considered political persecution.  All of the accused in these criminal cases who have been deprived of their liberty are political prisoners. This conclusion follows from an analysis of the rulings regarding choice of preventive measure and the circumstances of their arrest and remand in custody. The former Economy Minister Bohdan Danylyshyn who has received political asylum in the Czech Republic was a political prisoner. One can say with a great degree of certainty that political persecution is involved in the cases of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the criminal investigation.

The criminal cases against the Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman and the Vinnytsa trade union activist Andriy Bondarenko must also be considered politically motivated. The political grounds are indisputable for the reinstatement of the old criminal cases against members of the national organization UNA-UNSO regarding the events of 9 March 201 (all the accused have already served sentences except the National Deputy Andriy Shkil) and the Head of the Secretariat of the Mejlis of the Crimean Tatar People Zayir Smerdlyaev (he is charged with taking part in mass riots and resisting the police during a rally of the Crimean Tatars on 22 June 2006).

Political persecution was also involved in the court rulings in Kharkiv regarding administrative arrest and fines against those protesting against the felling of trees in Gorky Park in May and June 2010 under Article 185 of the Code of Administrative Offences, supposedly for flagrantly disobeying the lawful instructions of the police. Two young people from Kharkiv, imprisoned for 15 days, were declared prisoners of conscience by Amnesty International, the first time in 6 years (the only such case prior to that in 20 years of independence had been in 2004).  Virtually all civic activists who received administrative punishments under Articles 185 and or 185-1 of the Code of Administrative Offences (infringing the procedure for organizing a peaceful gathering) after holding a peaceful event can a priori be considered victims of political persecution. To be certain each such case should be viewed in isolation.

The list here of political persecution in no way claims to be comprehensive. It should be noted that a technique is often applied whereby the authorities persecute people who are not opponents of the regime as such but whom they consider aligned with their opponents (for example, people who from the point of view of the authorities can provide, provide or have provided, financial, organizational or technical support to their opponents).  People are sometimes also persecuted in order to receive information or grounds for persecuted the “necessary” person. Then the scale of persecution becomes wider and it is difficult to define the specifically political grounds for such persecution since there may be no link whatsoever between the persecution and political views of the victim, however this is indirectly linked with the political views of the “necessary” person and the aim of persecuting the latter. Examples can be seen in the course of events around the former Prime Minister Yulia Tymoshenko and the current Head of the Supreme Court, Vasyl Onopenko.

Stop the political persecution!

January 2011 saw a wave of detentions, searches, interrogations of members of the organizations VO Svoboda [the Freedom Party], V.O. Tryzub and other similar organizations. At first the talk was of suspicion of having carried out the explosion of the bust of Stalin in Zaporizhya late in the evening of 31 December, however later these suspicions were discarded and there have been no reports of those responsible for the explosion being found. At the end of January 9 members of the “Tryzub” were in custody over the beheading of the same bust of Stalin on 28 December: Vasyl Labaichuk; Andriy Zanuda; Edward Andryushchenko; Roman Khmara; Pylyp Taran; Yury Ponomarenko; Vitaly Vyshnyuk; Anatoly Onufriychuk and Vasyl Abramiv.  All of them were detained between 8 and 19 January and charged under Article 296 § 2 of the Criminal Code (hooliganism carried out by a group of people). It was reported that the detainees had all their things removed and were issued instead light clothing, that they were given virtually nothing to eat and that some of them were beaten, and that the police had put obstructions in the way of them seeing lawyers. The question of a preventive measure was reviewed considerably longer than the three days set down by law. All 9 accused were remanded in custody.

On 10 January a member of the Zaporizhya branch of V.O. Svoboda, Yury Hudymenko, was detained over a criminal case reinstated by the Regional Prosecutor under the same Article 296 § 2 of the Criminal Code.  The case had been initiated in May 2010 over the daubing with paint of the monument to Felix Dzherzhynsky however was then terminated due to the lack of elements of a crime in Hudymenko’s actions. The investigator applied to the court to have Hudymenko remanded in custody, but the court did not initially agree, only extending the term of detention by 10 days. However on 20 January a ruling was nonetheless passed to remand him in the SIZO [pre-trial detention unit] for two months. Artyom Matviyenko who is also charged with daubing paint over the monument, together with Hudymenko, is under a signed undertaking not to abscond.

Several members of Tryzub have been detained and released. Another four are being held in custody. Andriy Stempytsky and Stepan Bychek are accused of unlawful possession of weapons. Ihor Zahrebelny and Artyom Tsyhanyok of setting fire to the office of the Communist Party in Zaporizhya back in 2009.

It is difficult to speak with certainly about the criminal cases mentioned at the present stage since the investigation is not completed and some of the charges are unknown. However some things can, a priori, already be considered.

In the 2001 version of Article 296 of the Criminal Code, hooliganism is “flagrant violation of public order motivated by overt disrespect for society, accompanied by particular impudence or exceptional cynicism.” Yet the accused had no intention of insulting society, expressing disrespect since the overwhelming majority of society have a negative attitude to Stalin and Dzherzhynsky as the organizers of mass murder and protested against the erection of the bust of Stalin by the Zaporizhya communists. In both cases, the motive was entirely clear – to express their attitude to Stalin and Dzherzhynsky.

Thus, these acts were merely expressions of their views. It is interesting to draw a parallel between these forms of expressing ones views to the considerably more audacious form, that of burning the national flag in protest against the politics of the regime. According to Article 65 of Ukraine’s Constitution respect for State symbols is a duty of Ukrainian citizens, while Article 338 of the Criminal Code carries a punishment for public dishonouring of the state symbols of either Ukraine or other countries. The situation in the USA is different with the standards of freedom of expression of views being considerably higher.

It became common to burn the State flag in the USA during the period of mass protests against the Vietnam War at the end of the 1960s. In 1968 a federal law was passed on respect for the American flag. Analogous laws were passed in the majority of states. These laws qualified the public burning of the national flag as dishonour and a criminal offence.

After the application of these laws, the case reached the US Supreme Court. In 1989 the Supreme Court in the case of Texas vs. Johnson judged that the burning of the flag as a form of protest is guaranteed by the First Amendment and therefore all laws which ban such actions are unconstitutional. President George Bush, who held the opposite view, suggested that the Congress pass a special federal law establishing criminal liability for disrespect of the flag. The law was passed, however the Supreme Court immediately declared it unconstitutional since it violated the right of Americans to express their views. Since that time defenders of the flag have been trying to bypass the judgment of the Supreme Court by passing new amendments to the Constitution especially devoted to defence of the flag. Over recent years at least 12 such attempts have been made, yet no amendment has been adopted.

We can also apply the European mechanisms for protecting human rights: freedom of expression is defended by Article 10 of the European Convention. The actions of those accused of hooliganism fall under that Article.  The actions of the agents of the State in response constitutes interference in exercising freedom of expression and, in accordance with Article 10, must be based on the law “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” and “be necessary in a democratic society”

We would note that the reaction of the communists and their supporters to the daubing of part on the monument to Dzherzhynsky; the erection of a bust of Stalin; the reaction to the beheading of the bust of Stalin are also ways of expressing their views. That is, in these cases, we are dealing with political discussion and actions linked with this. In accordance with European Court of Human Rights case law in the area of political discussions, “Article 10 leaves no room for restriction of freedom of expression”. The

European Court has confirmed this in connection with numerous cases involving Kurds vs. Turkey (1994-1994) – applicants Aslan, Polat, Syurek, Karatash, Bashkai, Ibrahim Aksoi, Okutan, Kyurchyu, Varhii, and many others.

In order to establish whether there has been a violation of Article 10 one needs to determine whether the interference was well-founded. That is, firstly, whether it pursued a legitimate aim. If so, then, secondly, whether the interference was proportionate to the aim pursued. And thirdly, if so, whether the interference was necessary in a democratic country (for example, whether it was an adequate reaction to an urgent public need).

In considering this, we can draw an analogy with the well-known case of Salov vs. Ukraine. Donetsk lawyer Serhiy Salov was the authorized representative of presidential candidate Oleksandr Moroz at the 1999 elections. On 30 and 32 October he distributed 8 copies of a special issue of the newspaper Holos Ukrainy [Voice of Ukraine} from 29 October which asserted that the current Presdent, Leonid Kuchma had died on 24 October. The issue was a fake. On 31 October 1999 the Kyiv District Prosecutor in Donetsk initiated a criminal investigation against Salov on a charge of obstructing the electoral rights of citizens (Article 127 § 2 of the Criminal Code). On 1 November 1999 Salov was arrested for circulating false information.  He was held in a SIZO during the investigation and court proceedings from November right up to 1 June 2000, when the preventive measure was changed from remand in custody to a signed undertaking not to abscond. On 6 July 2000 a district court found him guilty of obstructing the exercise by citizens of their electoral rights by means of deception, in order to influence the results of the presidential elections. He received a five year suspended sentence with a two-year trial period in view of the fact that Salov’s actions “did not cause actual serious consequences”. The Regional and Supreme Courts upheld this ruling. Salov applied to the European Court alleging a violation of Article 5 § 3, Article 6 § 1 and Article 10 of the European Convention. The European Court found that these violations had taken place.

In considering whether Article 10 had been violated, the Court agreed that the newspaper which Salov had circulated contained false information and found that the interference of the State had pursued a legitimate aim, that of ensuring the right of voters to truthful information during the 1999 presidential campaign. However in view of the insignificant influence which the circulation of 8 copies of the newspaper and the seriousness of the punishment imposed, the Court found the interference to have been disproportionate pursuance of the legitimate aim.  There was no consideration of whether such interference was necessary in a democratic society.

In the cases over the daubing with paint of the monument to Dzherzhynsky and beheading of the bust of Stalin, the proportionality of interference and need in a democratic society have clearly not been observed. Furthermore, the interference of the State was not based on the law since the legal qualification of the offence as hooliganism is incorrect and used in order to apply the most severe punishment possible.

We can thus confidently predict that if the members of Tryzub and VO Svoboda accused of hooliganism apply to the European Court of Human Rights, in both cases the Court will find violations by the State of Article 10. It is clear that Article 5 of the Convention which defends the right to freedom and personal security has also been violated. There are no lawful grounds for deprivation of liberty during the investigation which, according to European Court case law, would be deemed well-founded, in these cases.

However it is apparent that the daubing with paint and beheading of the bust cause damage. If the law enforcement bodies had raised the issue of compensation for the damage caused, this would have been an adequate reaction.

From this analysis it follows that the ten people accused of hooliganism over the beheading of the bust of Stalin and the daubing with paint of the monument to Dzherzhynsky are political prisoners in accordance to the definition given. Political persecution must stop! The charges of hooliganism must be dropped and those involved released from custody.

Head of Supreme Court complains of pressure

Vasyl Onopenko has said in the last few days on Ukrainian television that he has no grounds for resigning since the Constitution clearly envisages when he can tender his resignation.  He said that the situation was difficult for him due to psychological pressure.  “The Venice Commission directly stated … and the PACE Resolution that the powers of the Supreme Court should be reinstated. Clearly those who are afraid of the renewal of the Supreme Court’s powers are frightened of this provision in the future”.

Mr Onopenko said that he cannot accept that the criminal investigation initiated against his daughter is lawful.

“How could I find that the criminal case had been initiated lawfully? Over the fact that she borrowed 252 thousand UAH two years ago in connection with her business, and did not return it, although she should have returned this debt. I did not know that. On 31 January a law suit appeared from the interested party against my daughter. I learned of that and with my wife was ready to return the money”, he said.  “However, on 1 February a criminal investigation was initiated and a search undertaken.”

The Prosecutor General’s Office has stated that the Head of the Supreme Court is not a suspect, nor is he the accused in any of the criminal investigations. This statement was prompted by the numerous publications in the press about what was described as pressure from the regime on the impetus of the Party of the Regions.

The leader of the Batkivshchyna Party, Yulia Tymoshenko, has asserted that the purpose of the pressure is to remove Vasyl Onopenko from his position and to appoint a person from President Yanukovych’s team.

Vasyl Onopenko said in an interview to the newspaper Komersant – Ukraine that he believes the case against his son-in-law, Yevhen Korniychuk may be linked with his bad relations with high-ranking public officials.  He was asked about conflict between Korniychuk while the latter was First Deputy Minister of Justice and the current First Deputy to the Prosecutor General Renat Kuzmin and Deputy Head of the President’s Administration, Andriy Portnov. He acknowledges that a lot was written about the difficult relations between his son-in-law and Kuzmin and Portnov and notes that the Prosecutor General’s Office, when Kuzmin was in charge of the investigation unit, initiated criminal charges and carried out searches back in 2009. “I can assume that to a large degree the reason for Korniychuk’s problems lies in his personal relations with certain public officials who have, in view of everything, decided to establish their relations with the help of the power given them”, he said. .

Slightly abridged from the original at the BBC Ukrainian Service

Against torture and ill-treatment

KHPG Open Letter to the President

There have recently been a number of causes for public criticism of the management of the Ministry of Internal Affairs {MIA}. 

We hope that you are aware of the incomprehensible and inadequate instances involving harassment of writer Maria Matios, journalist Olena Bilozerska, writers Marina Bratsylo and Yury V. Nohy by police bodies, since the Deputy Head of the President’s Administration, H. Herman has already expressed displeasure over these police actions. The actions of the MIA leadership in a politically context are so generally damaging to Ukraine’s image that they have become the focus of constant attention from the world community and human rights organizations.

We wish, however, to bring to your attention yet another acute problem in the activities of the MIA, this being the death of people in police units.  During 2010 and the beginning of 2011, more than 50 people have died in police stations with this creating a bleak record over recent years.

It is in the Kharkiv region, at the Loziv Police Station, that events have taken place requiring proper assessment at national level, yet none of this is happening!

It is impossible not to react to a situation where over ten days (!) there have been two incidents in the Loziv Police Station with two people throwing themselves out of windows.

The first case involved a man from the Roma community who was accused of possessing and circulating drugs. He was summoned on Sunday to the police station, together with his wife and 8-year-old daughter. After a lengthy period with the investigator, the man threw himself out the window of the fourth floor of the police station, was taken to the Loziv Central Hospital where he died a few days later.

The police have put forward the strange explanation that he was high on drugs, in an excited state and therefore committed suicide.

Yet this version in no way absolves responsibility from the police since they should not have interrogated a person in a psychologically disturbed state, but needed on the contrary to take measures to preserve his life and health.

The mother of the deceased man alleges that her son was tortured in the police station and pushed from the window by the police officers.  We are also seeing strange behaviour from the Prosecutor who has initiated a criminal investigation over actions exceeding official powers by unidentified individuals.  It thus follows that some unidentified individuals somehow got into the police station and exceeded official powers (whose powers if they are unidentified?) causing a person’s death? The eight-year-old daughter of the deceased man, who was witness to his presence in the police station, has not since spoken at all.

The story in general is reminiscent of a horror film.

The Lozivsk Police Station is clearly in fear of nobody, neither the Prosecutor, nor its own management, since despite the criminal investigation initiated, such strange “falls” from the police station have continued.

Not even 10 days had passed when this time a woman fell from the third floor. She had spent more than five hours in the investigator’s office, confessed to stealing a sack of potatoes then asked to go to the toilet and jumped from the third floor window. She received serious injuries, fractured ribs and a lung injury.  She was taken to the Lozib Central Hospital where she was operated on.

These leaps from the windows of a police station reflect the total decline of the system. In 20 years since Ukraine’s independence we are perhaps for the first time encountering such flagrant disregard for the law, and not in the last months alone.

The previous case in Kharkiv was the beating of Yakov Strogan in the Kyivsky District Police Station in Kharkiv.  After the case received coverage in the press, he was arrested and again beaten, being brought to the Kyivsky District Court in such a state. Moreover the officers from the Kyivsky District Police Station knew that there would be journalists in the court which was to consider whether to remand Yakov Strogan in custody.

As a result the case has gained wide publicity not only in Ukraine, but abroad.

At the present time the MIA has become a factor threatening State security. How can one build a country with a law-abiding population respecting the law enforcement bodies, when the law enforcement officers themselves respect neither the law, nor ordinary citizens, nor their own profession?

While we were writing this letter, the young woman who jumped from the third floor of the Loziv Police Station also died.

Her mother also suspects, as in the first case, that this was not suicide.

We demand a swift, law-based and just investigation into this bestial actions by MIA officers and call on you, as guarantor of citizens’ constitutional rights, to take the investigation into these cases under your control.

We believe that human rights violations will stop if those who flagrantly violate them receive the punishment they deserve.

This needs to be done publicly so that both the police and the public know that in Ukraine one must not violate human rights.

What’s the point of a Prosecutor who doesn’t want to defend us from torturers?

The Prosecutor sees no grounds for initiating criminal proceedings against the police officer who allegedly tortured Yakov Strogan. 

The Kharkiv man who publicly alleged that after being accused of inflicting injuries on his neighbour he was tortured by the police who demanded money from him, was then arrested by the police and appeared in court the next day with numerous bruises.  He is charged with attempted murder with the accusation first emerging 2 months after the initial dispute between two neighbours and just over a week after Mr Strogan repeated his allegations during parliamentary hearings.

Since Mr Strogan’s injuries were visible to all those present in the court on 10 December, the police chose to claim that these were self-inflicted.

The numerous hematomas, the pouring of liquid ammonia down his nose and mouth, testimony of witnesses and doctors were not deemed grounds by the Prosecutor for initiating a criminal investigation. 

By failing to defend Strogan, the Prosecutor is effectively giving a carte blanche to police officers to continue their actions. The refusal to initiate criminal proceedings can be viewed as encouraging the increased use of torture in Kharkiv and throughout the country. As well as a warning to all those victims of torture that they should keep their heads low and not dare to complain.

The failure to act by the Prosecutor’s Office is fostering impunity and encouraging police torturers to commit new crimes.

It should be noted that the European Court of Human Rights has issued a number of judgments finding Ukraine guilty of torure (Davidov vs. Ukraine, Afanasyev vs. Ukraine and others). In all those cases the Prosecutor failed to carry out a proper investigation and did not acknowledge the torture. The compensation to the victims for the inaction or lack of professionalism of the Prosecutor’s Office was paid for out of our taxes.

From a report at

Freedom of expression

Ukrainian writers call for boycott of the Minsk Book Fair

A number of Ukrainian writers have signed an open letter calling on the State Committee for Television and Radio Broadcasting to boycott the Minsk International Book Fair scheduled for 9-14 February. A representative delegation from Ukraine is due to attend.

The letter states that the literary community in Ukraine is outraged by information about persecution of creative artists in Belarus. It mentions the Belarusian poet Vladimir Nyaklyayev who was first detained and is now being held at home without being allowed to use the Internet, or even stand at the window of his flat.

Another writer, a Ukrainian by origin, Natalka Babna, has had her computer confiscated by the Belarusian KGB. This had preparations for the second publication of her novel “Rybyn horad”.  The writers point out that former Ukrainian Ambassador to Belarus, Ihor Likhovy, was at the presentation of the first issue of the novel and highly praised the author’s truthful presentation of the situation in Belarus.

“Ukrainians cannot remain indifferent in the face of pressure and direct persecution of writers and poets by the Lukashenko regime”

As well as the above-mentioned call for a boycott of the Book Fair, they also enjoin publishers to show solidarity with artists in Belarus suffering repression, and to withdraw their participation in the Ukrainian exposition.

“If we do not support one another in a political situation dangerous for any intelligent person, tomorrow repressions against artists will begin in Ukraine. The case of Maria Matios is a clear indicator of this”.

The letter is signed by 26 prominent writers and journalists.

Access to information

SBU: 5 Hour interrogation of historian Ruslan Zabily

According to the Liberation Movement Research Centre, on 16 February the SBU [Security Service] summoned historian and Director of the National Memorial Museum of Victims of the Occupation Regimes “Tyurma na Lonskoho” in Lviv, Ruslan Zabily for questioning.

The report states that Zabily was questioned for 5 hours and points out that the computer and hard disks removed many months ago have still not been returned.

“This was the first time since the events of September 2010 when the SBU unlawfully detained the historian, carried out unauthorized searches in the National Memorial Museum “Tyurma na Lonskoho”, unwarrantedly confiscated the researchers’ computers and initiated a criminal investigation”.

According to the Centre, the “State secrets” which the SBU was interested in from Zabily’s computer concerned KGB training material and information about the activities of the Soviet security services in the Baltic Republics. “Zabily downloaded the KGB documents from the European website, as he informed the Ukrainian Security Service officer yesterday”.

Zabily says that the SBU are still taking an active interest in various aspects of his research and the work of the Museum. The investigator asked about Zabily’s contacts with other historians, wanting even to be given dates of when he first met them and places of meeting.

He says that he went to the questioning although he had to pay for his own journey from Lviv in the hope of getting his computer and academic works back, but that this had not happened.

The Liberation Movement Research Centre reports that following the outrageous pressure from the SBU and attempts by the Minister of Education Dmytro Tabachnyk to censor history, the number of visitors to the Museum from all over Ukraine has increased. It states that the National Memorial Museum “Tyurma na Lonskoho”, will still be holding its exhibition on the fight of the Soviet regime against dissidents.

“History in Ukraine will not be secret however much some may want this – the law prohibits the concealment of historical documents, especially those which contain information about human rights violations”, 36-year-old Ruslan Zabily stresses. “It is my task as a historian to ensure that future generations have the right to historical truth, and it is immaterial whether this truth is positive or negative. I will therefore no stop my work regardless of all interrogations and confiscations”.

The National Memorial Museum “Tyurma na Lonskoho”, has still not been transferred to the Ukrainian Institute for National Remembrance, despite President Yanukovych’s instruction and the Museum has also not received the State funding for this year promised by high-ranking officials.

From a report issued by the Liberation Movement Research Centre Press Service   

Analysis of the new laws on information

On 3 February 2011 Viktor Yanukovych signed the Laws on Information and on Access to Information passed by parliament on 13 January. The final versions of the texts have not yet been made public - at present we have only the texts that were considered at the parliamentary session.

The laws will come into effect from three months after their publication. What should we expect and will the conditions for exercising the right to information really improve?  We will examine the laws passed with regard, firstly, to removal of the significant flaws in the Law on Information, and secondly, with how they meet international standards.  For convenience, we will refer to them as the Law on Information and the Law on Access.

First a few comments on terminology. The legislators have finally understood that “information about an individual” and “personal data” are the same thing. This would seem a minor point, yet it is extremely important since it will make it possible to link norms of domestic and international legislation, rulings of domestic and international courts. Yet another such highly significant “trifle” is the appearance among types of information as per content (Article 10 of the Law on Information) of information about the state of the environment (environmental information).  Once again, the merging of the terms “information about the state of the environment” and “environmental information” will make it possible to consider that the constitutional norm on openness of information about the state of the environment and the norms of the Law on the Protection of the Environment which uses the term “environmental information”, are talking about one and the same thing.

The definition of environmental information in Article 16 entirely complies with the Aarhus Convention: this information cannot be classified as information on restricted access, aside from information about the location of military objects. One can only welcome this norm.

A negative feature of the laws is the narrowing of the circle of those seeking information - they are called enquirers, while a positive feature is that the circle of those whom the law obliges to provide information, those  administrating information, has been broadened.

According to Article 12 of the Law on Access, those seeking information are individuals, legal entities or civic associations without the status of a legal entity. The list does not include media outlets (including foreign outlets) since such outlets may not have legal entity status and therefore do not find a place in the list of those seeking information. We would also note that the list of those seeking information (Article 4 of the Law on Information) does not include civic associations without legal entity status and this discrepancy between the two laws needs to be removed. The list also leaves out State players as a whole, other States and international organizations which are engaged in information relations according to the current Law on Information. For example, the UN, Council of Europe, EU and OSCE according to the current law can request information in Ukraine, whereas according to the new laws, they cannot.

Holders of information, pursuant to Article 13 of the Law on Access, are those in power, legal entities financed from State or local budgets or the budget of the Autonomous Republic of the Crimea (regarding information about the use of public funding); individuals or bodies delegated the power of figures of authority according to the law or an agreement, including provision of educational, health, social or other State services (with respect of information linked with the fulfilment of their duties); economic subjects occupying a dominant position on the market or with special or exceptional rights, or natural monopolies (regarding information about conditions for delivery of goods or services, and prices for these).

In comparison with the current Law on Information, where only bodies of legislative, court or executive power can be the recipients of information requests, this is potentially a significant improvement in access to information. According to Yelizaveta Alekseyeva from the leading environmental organization Environment, People, Law, “with the entry into force of this law material assessing impact on the environment, reports itemizing emissions of pollutants, the results of monitoring of impact on the environment and any other environmental information produced by economic subjects will become public information and therefore open to the public. From the point of view of ensuring access to environmental information, these laws are a huge step forward”.

However the formulation of the right to information and its restrictions (Articles 5 and 6 of the Law on Information and Article 6 of the Law on Access) do not meet international standards, in particular, Article 10 of the European Convention.  Article 10 § 1 states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

Nowhere in the new laws do we find mention of the right to information being exercised regardless of frontiers although in the age of the Internet this is axiomatic. Then, according to Article 5 § 2 of the Law on Information “The exercise of the right to information must not infringe the civil, political, economic, social, spiritual, environmental or other rights, freedoms and legitimate interests of other citizens, the rights and interests of legal entities”. This norm is impossible to implement: the exercise of the right to information, as a rule, infringes somebody’s interests. This norm effectively jeopardizes the exercising of the right to information and makes It possible for officials, when the wish arises, to refuse to meet the majority of information requests.

Article 10 § 2 of the European Convention states that: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. 

Compare this with Article 6 § 2 of the Law on Information which firstly restricts the very right to information, and not its exercise, and secondly, contains no presumption that the restrictions must be those needed in a democratic society. The question arises: who prevented the legislators from simply repeating in the law the provisions of Article 10 of the Convention, as was done in draft law № 4485.

The norms of Article 10 needed to be fixed in the new version of the Law on Information since the judgments of the European Court are a source of law in the domestic legal system in accordance with Article 17 of the Law on Implementation of the Judgments and Application of the Practice of the European Court of Human Rights.

An important issue is whether the three-tier test is used. This helps to balance the damage from the divulgence of publicly important information which serves a legitimate purpose and the damage from keeping this information secret. In Article 6 § 2 of the Law on Access, this test is set out quite correctly. However in the Law on Information (Articles 29 and 30 § 3) this is not the case. If one takes Article 30 § 3 literally, then any publicly needed information with restricted access can be divulged regardless of the damage which it will cause.

There is another discrepancy between the two new laws. Furthermore the definition of publicly needed information in Article 29 § 2 is too narrow. It states: “An object of public interest shall be deemed information which indicates a danger to Ukraine’s sovereignty and territorial integrity; ensures the exercise of constitutional rights, freedoms and duties; indicates the possibility of human rights abuse, of the public’s being misled; which indicates harmful environmental and other adverse consequences from the actions (inaction) of individuals or legal entities etc”. 

Compare this with the definition in  draft law № 4485: “Information of public interest is information which indicates a danger to Ukraine’s sovereignty and territorial integrity; infringement of the rights of territorial communities and the property rights of the Ukrainian people; makes it possible to make a well-founded political choice; guarantees being informed about events and facts which directly impact upon the state and nature of human life; ensures the exercise of constitutional rights, fundamental freedoms and duties; prevents violations; the public’s being misled, as well as harmful environmental and other adverse consequences from the actions (inaction) of economic subjects, etc”.

We would note that the definition of publicly needed information in the Law on Access was taken out.

Confidential, secret and official information are classified as information on restricted access. An undoubtedly positive feature of the new laws is the removal of the ambiguous construction “confidential information which is owned by the State” of the current Law on Information and its replacement by the category of official information with indication of what particular types of information can belong to this category (Article 9 § 1 of the Law on Access). Now documents containing official information are stamped “For official use only” [DSK] and access to the lists of items of information constituting official information may not be restricted (Article 9 § 3).  This means that the authorities which concealed information using the stamp “For official use only” must divulge and publish these lists (and this is the Cabinet of Ministers  and other bodies (see for more information).  The norms of the Law on Access regarding official information will begin working when a new law on this is passed. It would be desirable to draw this up and pass it as soon as possible. For the moment all authorities, bodies of local self-government , ministries, etc should review previously drawn up lists of confidential information which is owned by the State, in accordance with Article 9 of the Law on Access, and reveal that part of the documents stamped “For official use only”. The situation where the number of items in lists drawn up by regional State administrations has ranged from 18 (the Ivano-Frankivsk and Kyiv Regional State Administrations) to 136 (Kirovohrad RSA) is absolutely unacceptable.

Unfortunately the norm was removed from the final version of the Law on Access which had stated that official information contained in documents of those in authority and constituting internal official correspondence, reporting notes, recommendations were open from the day the decision was passed where they were linked with the drawing up of directions of activities of the institution, the process of decision-making and preceding public discussion and / or passing; or if the information was gathered in the course of the exercising of the authorities’ controlling or supervisory functions. According to Oksana Nesterenko, specialist on information law for KHPG, this norm would have had a revolutionary effect on information openness in Ukraine. It would have meant that almost all official information after the passing of a decision was on open access to the public.

Article 6 § 7 of the Law on Access states that it is the information, not the document, that is on restricted access. If a document contains information on restricted access, then the information where access is not restricted should be provided. This well-known principle of freedom of information should have been implemented in Ukraine a long time ago. However unclear formulations in the Law could render this norm meaningless. For example, Article 9 § 3 of the Law envisages that documents containing information which constitutes official information, are stamped DSK (“For official use only”), and that already means that it is impossible to provide even part of the information from this document. What prevented the legislators from adding the proviso that access to documents with restricted access is provided in accordance with Article 6 § 2 of this Law?

Furthermore, in order to apply Article 6 § 7 of the Law on Access, they needed in the Final Provisions to revoke amendments to the Law on the Press passed by the Verkhovna Rada on 11 May 2004. Article 2 § 1 of that Law, “Freedom of activities of the printed press” declares “the right of each citizen to freely and independently look for, receive, record, retain, use and circulate any information on open access with the help of the printed press”.  The fundamental right of a journalist – to information – was similarly reduced with the journalist now having “the right to freely receive, use, circulate (publish) and retain information on open access” (Article 26 § 2.1 of the Law on the Press). These restrictions – the possibility of working only with information which is on open access (literally: open according to the regime of access) which were added in May 2004 should have been revoked. Unfortunately, however, there is no such norm in the Final Provisions of the Law on Access.  

In Article 3 of the Law on Information, one of the main directions of State information policy is called “ensuring Ukraine’s information security”. However the term information security is not defined, although the basic information law should contain a definition of this important concept which is used in the Constitution. It is not clear why the legislators did not use the well-worded norm from draft law № 4485:

1. Information activities of subjects of information relations in Ukraine take place within a regime of information security;

2. Ukraine’s information security consists of ensuring (guaranteeing) freedom access by all to open information and of protecting and guarding State secrets and others envisaged by law;

3. Ensuring Ukraine’s information security is one of the most important functions of the State and the matter of the entire Ukrainian people.

We would also note that the norm in the current Law on Information banning censorship, both direct and indirect, is seriously spoiled in the new version of the Law. For example, Article 24 § 2 of the Law in the new version declares that the prohibition of censorship “does not cover cases where the prior agreeing of information is carried out on the basis of the law”.  At present there are no such laws, yet this time bomb could become a problem in the future. Especially if we consider the adoption as a base on 22 December 2010 of a draft Concept of State Information Policy” where one of the priority tasks is to “ensure Ukraine’s information sovereignty”  This concept does not have any legal sense, the relevant article was removed from the old version of the Law on Information, yet it has again become relevant.

The Law on Access thoroughly sets out the duties of those holding information regarding its publication, determining the structural sections or those responsible for information requests and the procedure for reviewing these requests. Only 5 working days is given for a response, and not a month as previously. Furthermore, the Law establishes types of information which must be provided even quicker, within 48 hours. This is information needed to protect the life or freedom of a person; regarding the state of the environment, the quality of food products and everyday items; accidents, catastrophes, dangerous natural phenomena and other emergencies which have taken place or could happen and which endanger people’s safety.

However according to Article 20 § 4 of the Law on Access, the time period for review of a request can be extended to 20 working days if the request pertains to a large amount of information or needs to be looked for in a considerable amount of data. Knowing the kind of responses received to requests at present, one can confidently predict that responses will at best come within 20 working days, and not five.

The well-known principle of freedom of information regarding protection of whistleblowers has not been implemented in the best way. Article 11 of the Law on Access states that “Public officials and civil servants shall not face legal liability, regardless of infringement of their duties, for divulging information about offences or information which pertains to a serious risk to citizens’ health or safety, to the environment, if the individuals were prompted by good intentions and had well-founded belief that the information was accurate, and also contains proof of an offence or concerns a significant threat to citizens’ health or safety or to the environment”.  This effectively means that the burden of proving the offence or significant threat to citizens’ health or safety or to the environment falls on the public official who revealed the information.

It would have been better to use the analogous norm in draft law № 4485 which, unlike Article 11, implements this principle: “Public officials and civil servants and those in authority who, infringing their duty regarding non-divulgence of information on restricted access, reveal facts of unlawful behaviour, corrupt activities committed by public officials or civil servants, State bodies, bodies of the Autonomous Republic or other bodies of local self-government,  shall be free of legal liability if they were prompted by good intentions and were convinced that the disclosure of such information was in accord with the public interest”.

 that the information was accurate, and also contains proof of an offence or concerns a significant threat to citizens’ health or safety or to the environment”

Unfortunately, Articles were removed from the Law on Access which specified the procedure for appealing to the Human Rights Ombudsperson against unlawful refusals to provide information.  This is claimed to have been done at the request of the Ombudsperson herself. Thus, unfortunately, parliamentary control over exercise of the right to information implemented in all European laws on freedom of information is not in the Ukrainian law.

The definition of information about an individual and regulation of access to such information needs to be reviewed together with the Law on Personal Data Protection passed by parliament on 1 June 2010 which came into effect on 1 January 2011.

None of the three laws provides even a minimum list of items constituting personal data. In Article15 § 2 of the Law on Information, the constitutional norm is given on the prohibition of gathering, keeping, using and circulation of confidential information about a person without their consent, yet such confidential information about a person is seen as being information about their nationality, education, family position, religious beliefs, state of health, as well as address, date and place of birth.

In the Law on Personal Data Protection the list of personal data also appears in a prohibiting context. Article 7 § 1 prohibits the processing of personal data about racial or ethnic origin; political, religious or worldview believes; membership in political parties and professional unions, as well as data concerning health or sexual life. Both these lists are clearly incomplete and do not coincide. Furthermore, address, data and place of birth cannot be treated as confidential information, with this running counter to generally accepted practice.

Unfortunately the legislators did not make use of the definition of personal data in draft law № 4485 which does comply with European standards. There personal data is divided into data of a general nature ( (first name, patronymic, last name, data and place of birth, citizenship, place of residence) and sensitive personal data (information about state of health, medical history, diagnosis, etc, ethnic origin, attitude to religion, identification codes or numbers, personal symbols, signature, fingerprints, voice print, photographs, data about pay or other legal income, about bank deposits and accounts, property, tax status, credit history, information about any criminal record or other forms of criminal, administrative or disciplinary liability,  exam results, or results of professional or other tests, etc). Laws on information, access and personal data protection should prohibit collecting, retaining, using and circulating specifically sensitive personal data without the person’s consent.

The lack of differentiation between personal data of a general nature and that which is sensitive leads to anecdotal consequences. For example, the circulation of any personal data, including even the surname and first name of person, can only be carried out with their written consent. Article 6 § 9 of the Law on Personal Data Protection states that “the use of personal data for historical, statistical and scientific purposes can only be made in depersonalized form”. This means that one cannot give any personal data even first and last name in textbooks or any scientific works!

None of the three laws contains the concept of “public official” where the limits, in accordance with the position of the European Court of Human Rights, are broader than for the average person.  One can, therefore, circulate more personal information about such a person without their consent if this is of public importance.  The Law on Access makes an exception to the overall ban on circulation of personal data without the person’s consent only with regard to people standing for or occupying electoral office in bodies of power, or holding the post of civil servant, official of a body of local self-government of the first or second category (Article 6 § 6).  This exception moreover only concerns data on income declarations for the people and members of their families (the previous version had had, among other things, biographical details, but this was removed).

Article 5 § 4 of the Law on Personal Data Protection does not include as information on restricted access any personal data about a person standing for or holding an electoral position (in representative bodies) or first category public officials. These exceptions clearly do not coincide, and both are considerably narrower than the concept of “public official”. The Law on Personal Data Protection in general does not allow for the possibility of circulating personal data where there is a public need, and in this clashes with the Laws on Information and on Access.

There are other discrepancies as well between the Law on Access and Law on Personal Data Protection. Article 6 § 5 of the Law on Access does not allow restriction of “access to information about the use of public funding, the use or distribution of State or communal problem, including to copies of the relevant documents, the conditions for receiving this funding or property, the first and last names of individuals and names of legal entities which received that funding or property.”

According to the Law on Personal Data Protection, generally speaking access is not allowed to the given individuals on conditions for their receiving funding and property without their consent (Article 6 § 6; Article 11 § 1; Article 14 § 1).

In order to remove this clash, the legislators should have added the relevant provisos to the Law on Access which was reviewed later than the Law on Personal Data Protection.

In conclusion, change is needed to all three laws – on information, access to information and on personal data protection, in order to agree them among themselves and bring them into line with international human rights agreements to which Ukraine is a signatory. The new laws will work if the public and journalists are active in looking for and circulating information.

[1] We would add at least a note that in listing in Article 10 the types of information, the legislators once again forgot to mention archival information.

Interethnic relations

Court orders Simferopol Authorities to grant permit for Soborna Mosque

The Spiritual Directorate of Crimean Muslims reports that Ukraine’s High Economic Court has upheld the right of Crimean Muslims to build a Soborna, or Assembly, Mosque in Simferopol.  The Crimean Muslims are again planning to demand official permission for the construction of the Mosque.

This conflict has continued since 2004 and despite court rulings, the Crimean Prosecutor has so far not reacted.

There was some reaction when, at the end of last year, the Crimean Prosecutor appealed against the decision of the Sevastopol Economic Court of Appeal from 3 November 2010. The latter court had rejected the City Council’s appeal against a ruling from another court which ordered the city authorities in Simferopol to conclude a lease agreement  with the Spiritual Directorate of Crimean Muslims for land to build the Soborna Mosque. In the event that the city authorities did not conclude an agreement, this would be considered made.

A statement from the Spiritual Directorate says that the High Economic Court rejected the Crimean Prosecutor’s cassation appeal. According to the Mufti of the Crimean Tatars, Khadzha Emirati Ablayev, this means that the disputed land at 22 Yaltinska St is now under lease to the Spiritual Directorate of Muslims and the construction of the Soborna Mosque can begin.

The Spiritual Directorate of Muslims had originally planned to build the Soborna Mosque in the Simferopol park where in 1944 the camp for those being deported was located and where many died. However under pressure from the authorities, the Muslims agreed to an alternative proposal, this being to build the Mosque on Yaltinska St.

In 2004 the Simferopol City Council agreed this with the Spiritual Directorate and issued the relevant permits. However two years later, when all the documents had been collected and the technical plan drawn up, the Council unexpectedly refused to provide the land.  It claimed that this was because the land was in the reservoir’s protection zone. The Muslims began a protest action and brought around 250 thousand bricks for the building, one from each Muslim. They held services in the open air in that place each Friday. They say that they have no intention of moving from this location, although the Simferopol and Crimean authorities have suggesting allocating a place somewhere else.

Human rights protection

Ukrainian human rights organizations present Human Rights in Ukraine 2009 – 2010

The human rights organizations’ report on the human rights situation in the country during 2009 and 2010 was presented at a press conference on 24 February. Over 40 human rights organizations from all regions of Ukraine took part in preparing the report which contains 26 sections.

Problems inherited from the previous regime have become worse

Following the 2010 presidential elections, the President and government inherited systemic problems regarding human rights: wide-scale flagrant violations of the right to a fair trial; to protection from torture and other forms of unlawful violence; wrongful detentions; the poverty of a significant percentage of the population; discrimination against vulnerable groups in society and much more.

The actions of the authorities during 2010 not only failed to address these problems, but actually curtailed the few positive processes which had begun and demonstrated new trends with respect to human rights abuse and disregard for such rights and freedoms.

The human rights organizations point out that there is virtually no response from the authorities and bodies of local self-government to appeals from the public, protests against unlawful actions or reports of human rights violations. These are simply ignored.

At the same time, protest is on the increase. During the first 6 months of 2010 the number of peaceful gatherings was around 30% higher than that for all of 2009. During the second half of 2010 there was a clear increase again. The leaders of the country should therefore understand that using force to put pressure on society will only exacerbate conflict. Unfortunately, however, the regime instead resorted in the second half of 2010 to overtly political prosecutions.

Among politically motivated criminal prosecutions the human rights activists name the criminal proceedings against protesters who took part in the mass protest against the new Tax Code in Kyiv; members of the organizations “Tryzub” and VO “Svoboda”, as well as former high-ranking officials in Yulia Tymoshenko’s government, such as former Minister of Internal Affairs, Yury Lutsenko and former Deputy Minister of Justice, Yevhen Korniychuk.

Virtually all the civic activists who received administrative sentences under Articles 185 or 185-1 of the Code of Administrative Offences (infringement of the rules for organizing peaceful gatherings) can a priori be considered victims of political persecution!

Freedom of Peaceful Assembly  (all the following are addressed in detailed in the report)

There were far more infringements of freedom of peaceful assembly in 2010 than during the entire period from 2005 to 2009. The Minister of Internal Affairs even stated that for peaceful gatherings there needed to be “some big field on the outskirts of Kyiv where nobody will disturb anyone else”. Traffic Police officers obstructed people from many regions of the country trying to reach Kyiv for an opposition rally on 11 May (as well as believers from the Orthodox Church under the Kyiv Patriarchate in late July – translator). Transport companies were warned that they would lose their licence if they took people to the rally. None of the national TV channels, except STB, reported this.

Freedom of Expression

Both Ukrainian and international commentators pointed to a significant deterioration in freedom of expression. There have been a large number of cases where information of public importance was either muffed or distorted in the media. Manipulation of the news and commissioning of pro-government reporting have become common, and the opposition had less access to broadcasting time.

Political prosecutions

There has been harassment and cases of violence against journalists, trade union, civic and human rights activists. Those guilty of offences have not been held to answer.

The right to a fair trial

After the adoption of the Law on the Judicial System and Status of Judges, the public received swift, but unfair court proceedings from dependent judges. The law passed needs revision in order to ensure fair courts and real independence of the judiciary.

The Ministry of Internal Affairs and human rights

There were considerably more violations of human rights during 2010 than in 2009.  Reports of torture and other forms of unlawful violence by law enforcement officers, sometimes with lethal consequences, became more common. According to monitoring carried out by the Kharkiv Institute for Social Research and the Kharkiv Human Rights Group, the estimated number of people who had suffered from such unlawful violence from the police during 2010 stood at 780-790 thousand, against 604 thousand in 2009.

There are also infringements of the rights of police officers themselves who are totally dependent on the management and often forced to work 10-14 hours without paid overtime, and earn little. In many district police departments there aren’t even toilets.

The reports Human Rights in Ukraine have been published annually since 2004. Their analysis and assessment of the overall human rights situation in the country are used by Ukrainian and international organizations.

“Prava Ludiny” (human rights) monthly bulletin, 2011, #02