“Prava Ludiny” (human rights) monthly bulletin, 2011, #03
Reprisals against the Tax Code Protesters Head of the Coalition of Participants in the Orange Revolution could get 15 years Against torture and ill-treatment
Number of deaths in police custody triples Court trial for allegations of torture? Privacy
All Personal Data you provide may be taken and used against you Freedom of expression
Stop Censorship calls on Yanukovych to address grave issues with press freedom Stop Censorship expresses concern over conflict around Gazeta po-kievski “Stop Censorship!” comes out in support of Volodarsky and Groisman National Union of Journalists issues protest over pressure on the press Access to information
Secrets defended to the last Social and economic rights
Corruption in Law Children’s rights
Who stands to gain from children officially not existing? Law enforcement agencies
KHPG: calls on President to remove Minister of the Interior Petition launched for the dismissal of Mohylyov as Minister of the Interior Human rights protection
Human rights in Ukraine: assessment of the new regime’s first year Dissidents and their time
In Memoriam: Ivan Hel
Politics and human rights
Reprisals against the Tax Code Protesters
In an article for the authoritative newspaper Dzerkalo Tyzhnya, Roman Zinoviev asks whether one can believe the words of Ukraine’s Guarantor of the Constitution, the President, and answers that now the fourth President is confirming that a negative answer must be given. The entire country heard Yanukovych’s promise that there would be no persecution of the Tax Code Maidan (the mass protest on Maidan Nezalezhnosti or Independence Square. His word was not kept long: three weeks after the Tax Code Maidan the authorities began real political repression.
First four of the protesters were arrested. The Shevchenkivsky District Court in Kyiv remanded three in custody while one was released on a signed undertaking not to leave the place. They were accused of “deliberate destruction or damage to others’ property which caused large-scale damage according to prior conspiracy between a group of people”.
Then came a several wave of arrests and court hearings. In the end, by the beginning of March, the “criminal gang” of defenders of small business owners’ rights had risen to seven with two held in custody.
A week ago, on 2 March, investigator Y. Seperovych charged an organizer of the small business owners’ Maidan – the Head of the Board of the Coalition of Participants in the Orange Revolution, Serhiy Melnychenko with the offence under Articles 28 § 2 and 194 § 1 of the Criminal Code “deliberate destruction or damage to others’ property which caused large-scale damage”
According to the police resolution: “From the evening of 21 November 2010 to 3 December 2010, carrying out their criminal intentions, aimed at damaging property not belonging to them on Maidan Nezalezhnosti [Independence Square], according to prior agreement with R. Fedchuk, O. Akhtyrsky, A. Mandych, I. Garkavenko, O. Zaplatkyn and V. Hruzynov, erected for the protesters 8 military tents. In the course of erecting these, 132 metal stakes, 50-60 cm in height, were beaten into the joints between the granite slabs”.
The author quotes one of the protesters as saying with irony that from this it follows that Melnychenko, with his criminal intent of damaging the granite slab on Maidan Nezalezhnosti entered into a criminal conspiracy and then called on up to 100 thousand business owners from different regions of Ukraine. Thus the police and particularly the Minister of the Interior Anatoly Mohylyov, as well as the outstanding investigator Mr Selerovych have finally succeeded in uncovering the true intentions of the people who stood for 12 days on Maidan Nezalezhnosti demanding that the President veto the new Tax Code.
Serhiy Melnychenko recently stated on TVi that they had originally accused him of deliberately damaging the granite slab together with others. However they couldn’t prove this, and thought up a new variant – that he was the organizer of a criminal gang, the 6 others there to carry out the task. He added that he does not even know what half of them look like. Serhiy Melnychenko said that he himself had once worked in criminal investigation and he was not satisfied that the investigators were refusing to let him see the material which formed the basis of the charges. He says that he has been shown only the resolution to initiate criminal proceedings and the protocol with the statement and that the investigator is ignoring all submissions from himself and the other accused.
The author points out the absurdity of the charges since Maidan Nezalezhnosti has been the site of civil protest since 2000 and how can one calculate how many metal and other stakes have been beaten into the slabs since then? These included, he underlines, the numerous tents erected under blue and white (Party of the Regions) flags in 2007.
This demonstrates selective application of the law. Oleh Levytsky, lawyer representing Ihor Garkavenko, one of the activists, calls the criminal case against his client political persecution. He stresses that in many years of practice there has been nothing like it before. Garkavenko’s previous lawyer turned down the case after emerging from the investigator’s office. Then for almost 20 days Oleh Levytsky was not merely prevented from seeing his client, he wasn’t even given access to the file material. They’re also bringing in a new investigator supposedly due to the other’s leave. Levytsky stresses that the investigators are not questioning important witnesses who could confirm that at the time that the tents were erected Garkavenko was actually in Kharkiv. Among these witnesses are important political figures, like the ex-candidate for Mayor of Kharkiv whom it is simply impossible not to trust.
According to media reports, 36-year-old Ihor Garkavenko was driven to seek a personal audience with the Human Rights Ombudsperson at the Kyiv SIZO [pre-trial detention centre]. The latter apparently initiated proceedings, and took measures aimed at getting him released from custody.
Then, at parliamentary hearings on 16 February the Human Rights Ombudsperson stressed the need to stop persecuting participants in the Tax Code Maidan, including Ihor Garkavenko who had, she was convinced, been arrested on trumped-up charges.
At the press conference on 1 March, Oleh Levytsky explained that five of those facing charges did not take part in the small business owners’ protest at all, while two others arrived at the scene only after towards the end of the protests. He asserts that the investigators are entirely ignoring the arguments presented by the defence, and the courts have extended Garkavenko’s remand in custody “despite the facts, the law and sheer commonsense”. In his view the confidence with which the investigators are violating procedural and legal norms suggests that the case has been ordered by high-ranking officials, and is political persecution, aimed at discrediting the anti-Tax Code protests. “We are seeing some kind of actions planned from above which is supposed to prove to the entire country that there was a “criminal face” behind the “Tax Code Maidan”. This could be a purge of the civic-political field in Ukraine. I can find no other explanation”,
He adds that he will not stop defending Ihor Garkavenko who is well-known for his critical publications in the Ukrainian and Russian Internet. Asked how such “control in the criminal procedure sphere” is taking place, Oleh Levytsky replied “There are simply temnyky for investigators and police officers “ (in Kuchma’s time, “temnyky” were instructions to media outlets on what to cover, what not, and how reports should be provided.
As reported here, on 1 March Ihor Garkavenko declared an indefinite hunger strike, and, oh miracle, on 3 March already the Kyiv Court of Appeal released him from custody. The Head of the Association for the Defence of Ukrainian Citizens’ Rights got signatures from 7 National Deputies, affirming that they would stand as guarantors. A number of other civic organizations have also made submissions.
On 4 March the Central Department of the Ministry of the Interior completed the investigation into the alleged damage to a granite slab on Maidan Nezalezhnosti. Seven people are charged with six also presented with the charges, while the seventh is wanted for questioning.
The minimum punishment under Article 194 § 1 is a fine of up to 50 times the average income minus tax.
Maximum would be a term of imprisonment of up to 3 years.
The accused in yet another “unique” case is Serhiy Kostakov who has been held in custody in the Lukyanivsk SIZO No. 13 since 1 December 2010. He is accused under Article 296 of hooliganism. It is claimed that on 22 November he damaged a car driving along a street which the protesters had blocked. The bizarre thing is not even the fact that Kostakov is charged with single-handedly causing the damage. The main unique feature is the lack of any proof aside from the assertion of the car’s driver. The latter did not initially recognize Kostakov among over 200 people, but only “recalled” (or more likely invented this at the instigation of the investigator) a week later.
The point is that the witness-driver according to the angle at which the car was placed, could not have seen Kostakov.
His lawyer, Mykola Biryuk adds that fundamental norms of the European Convention on Human Rights were violated, with Kostakov’s appeals not reaching the court. On 22 February this year the Kyiv Court of Appeal rejected his claim of unlawful detention. “What awaits are more and more court hearings. And we all understand that in a country where there really is legal arbitrary rule, the release from custody of Ihor Garkavenko, getting cases in general to the court, constitute only a small victory over those who respect Stalin’s methods”
The totalitarian nature of the current regime does not allow them to make compromise and dialogue with “alien” individuals. That was how it was under Kuchma (9 March 2001 that continues to this day.
Abridged from the original by Roman Zinovyev here
Head of the Coalition of Participants in the Orange Revolution could get 15 years
The newspaper Kommersant Ukraine reports that on Wednesday the Central Department of the Kyiv Police charged the Head of the Board of the Coalition of Participants in the Orange Revolution, Serhiy Melnychenko. He is accused of creating a criminal group which during the protests by small business owners at the end of last year allegedly caused damage to the state of more than 200 thousand UAH. (roughly 18 thousand Euro). Mr Melnychenko calls the actions of the police political repression, while in the Kyiv Prosecutor’s Office where the file material has been sent, they do not discount the possibility that the decision will be revoked.
The decision to bring charges against Melnychenko states that “Melnychenko, being the Head of the Coalition of Participants in the Orange Revolution, organized group actions linked with the holding on 22 November of a freedom day and protest against the adoption by the Verkhovna Rada of the Tax Code”.
“From the evening of 21 November 2010 to 3 December 2010, carrying out their criminal intentions, aimed at damaging property not belonging to them on Maidan Nezalezhnosti [Independence Square], according to prior agreement with R. Fedchuk, O. Akhtyrsky, A. Mandych, I. Garkavenko, O. Zaplatkyn and V. Hruzynov, erected for the protesters 8 military tents. In the course of erecting these, 132 metal stakes, 50-60 cm in height, were beaten into the joints between the granite slabs”.
The investigators have thus concluded that Mr Melnychenko “caused material damage to the territorial community of the city of Kyiv and the road and exploitation department on repair and maintenance of roads and constructions on them of the Shevchenkivsky District amounting to 212, 292 UAH”.
Serhiy Melnychenko also faces the charge that under his leadership the above-mentioned figures damaged the metal fencing on Maidan, causing damage to municipal property of 2, 711 UAH.
From a report in Kommersant – Ukraine
Against torture and ill-treatment
Number of deaths in police custody triples
The Kharkiv Human Rights Group has given a press conference on the use of torture by police and the worrying increase in deaths of detainees.
According to Yevhen Zakharov, KHPG Co-Chair, just in the first three months of 2011 there have been 15 deaths in police custody, although this is far from a full list, but merely the information reaching the public. The use of unlawful violence are almost impossible to prove, largely because there is no institution for effective investigation into such cases. The police investigate the material only as part of a departmental check and as a result in the majority of cases the Prosecutor refuses to initiate a criminal investigation.
One of the appalling examples cited was that of Ruslan Sazhko who was fond hanged in the enclosure of the Svyatoshynsky Police Station in Kyiv on 7 January 2011. There were numerous marks of injury on his body. The police claim that the death was outside the police station yet the video footage inside the building shows that Ruslan was brought into the station without injuries. He did not leave alive.
Andriy Didenko, Coordinator of the KHPG Programme against Torture, explains that the use of torture is most likely during the detective and criminal investigation stage.
Yevhen Zakharov explains that violent methods are used to increase the number of officially solved cases. There are statistical indicators which need to be fulfilled, with failure to do so affecting the officer’s income. The Minister, Anatoly Mohylyov has on many occasions stated that one such indicator is the number of solved cases. How they’re solved is not of concern. Studies have found that up to 60% of the cases involving illegal possession of weapons are falsified.
Channel 5 reports that on Wednesday an extended meeting was held within the Prosecutor General’s Office regarding observance of the law during investigations into cases of torture. The Prosecutor General Viktor Pshonka stated that the problem was real of ill-treatment of those detained or remanded in custody within the Ministry of Internal Affairs. He expressed concern over the increase in the number of deaths in police custody, and demanded that Prosecutors show a principled position and efficiently use all their powers to eradicate such behaviour. He said that each such case must be brought to court and punished as it deserves.
From reports at Channel 5 and the Radio Svoboda Ukrainian Service
Court trial for allegations of torture?
The news agency ATN Kharkiv reports that Yakov Strogan’s case is presently being examined by the Kievsky District Court in Kharkiv. Not, however, a case over Strogan’s allegations of abduction and torture by police officers, made from August 2010, including in parliament in December. Instead Strogan is facing charges of attempted murder over the initial incident with these only having been laid after his allegations received considerable publicity
In court there has been no mention of torture. Only the fact that a panel of judges is examining the case, not one judge, serves as indication that this is no mere domestic offence, but a widely publicized case.
The Kharkiv Human Rights Group and other human rights organizations have expressed serious concern over this case which bears all the hallmarks of police reprisals against a person who dared report police misconduct. The likely ramifications of the message which the prosecution and a conviction will give victims of torture and other police officers are truly frightening.
On 16 August 2010, one day after an argument and fight between Yakov Strogan and a neighbour, police officers from the Kievsky District Police Station in Kharkiv arrived at Strogan’s flat. It was 1 a.m. and Strogan refused to let them in. They tried to break down the door and cut off the flat’s electricity.
He let them in only at 6 a.m. and was immediately grabbed and taken first to a police unit, and then to the forest where he was beaten and subjected to various forms of torture, including the use of electric shocks and having ammonia poured down his nose and mouth. He was then kept incarcerated for four days while the officers tried to extort 10 thousand dollars from his wife. He was only released after he promised to try to find the money after his wife’s efforts proved fruitless.
From then on and consistently up till his arrest in December, Yakov Strogan spoke publicly of his ordeal and endeavoured to get a criminal investigation initiated. He was supported by KHPG whose lawyers are adamant that some of the details he describes could not have been invented. He also underwent a forensic examination which found bodily injuries of medium severity. Despite this, the Prosecutor’s Office found no grounds for beginning a criminal investigation.
Just over a week after repeating his allegations at parliamentary hearings on 1 December, Yakov Strogan was detained by officers from the same Kievsky District Police Station. Almost four months after a dispute which Strogan says was minor, and where the neighbour only hurt himself because he fell on broken glass, Yakov Strogan was arrested and accused of attempted murder. ATN reports that the wife of the alleged victim, Tatyana Marchenko cannot remember what Strogan was wearing but is sure that he was armed with a knife which he used against her husband. Profound scepticism on this score is surely substantiated by lack of any mention of a knife or other object in the original medical documents, not to mention the fact that the knife when “found” proved to have blood on it, but no fingerprints.
Despite the prolonged time period before the murder charges were laid, the public allegations preceding them, as well as the shocking state Strogan was in when brought to court on 11 December after a night held in custody by his alleged torturers, the judge saw no need to ask questions and remanded Yakov Strogan in custody. It would seem that the judges presently examining the case are equally loath to ask pertinent questions.
These questions must be asked since others, such as what it will mean for Ukraine if the police are given a carte blanche by the Prosecutor and the courts to commit crimes, torture and distort the course of justice with impunity, are purely rhetorical.
In the first half of March human rights organizations launched a nationwide appeal calling for the removal of Anatoly Mohylyov from his post as Minister of Internal Affairs. There were a number of specific concerns, but all reflect a disturbing increase in violence by police officers and deaths in police custody, as well as an overriding and flagrant disregard for fundamental human rights. Complaints about such violations fall on deaf ears within the Ministry, and neither the Prosecutor’s office nor the courts have proved willing to breach this wall of impunity.
The cautious hope expressed by some international organizations at the apparent breakthrough last week in the Gongadze case was that a message would be received by those in high places who believe they can violate the most fundamental rights, including that to life itself, with total impunity.
This same message is increasingly heard in Ukraine at the present time. It is resulting in human rights violations and poses the gravest threat to the rule of law here and now.
All Personal Data you provide may be taken and used against you
The Law on Personal Data Protection came into force on 1 January 2011. The law is supposed to provide maximum protection for personal information, yet what do we have in practice?
Businesses and organizations understood after reading the law that all the information that they have about their staff constitutes those people’s personal data. In order to legally use this data, they needed to quickly get the staff’s consent to its use.
Very many businesses decided to get consent to use information excluding data about health, financial status, etc. Without basically explaining anything, the commercial structures demand that their staff sign this agreement, and also commit themselves to notify them of any changes in their personal data. Specific instructions are issued on forcing section heads to collect these documents.
The following can serve as an example, In one of the biggest Kyiv enterprises – Kyivenergo – an instruction was issued for the directorates and section heads to make up lists of employees with their signature giving consent to having their personal data added to a database.
This states: “In accordance with the Law on Personal Data Protection, I give consent for personal data to be gathered and input into a database, to be processed (including information concerning my state of health), to be held indefinitely, to be passed in accordance with current legislation to third parties (those running the database, the law enforcement agencies, etc) and I agree to provide documents should there be changes to my personal data”.
Why people agree to provide their personal information
People are giving their consent - some from fear of the management, others because they are scared they’ll lose their job, or because they’re not informed what the agreement entails, or for other reasons. This results in businesses and organizations effectively receiving unlimited access to personal information about their employees, including the most sensitive of information. The law is thus, instead of protecting personal information, having quite the opposite effect.
How your own company can hurt you if you give them your personal data
Nobody can provide any guarantee after giving such consent that the company will not pass information about the state of health of its employees to insurance companies providing them with medical cover with this resulting in the person’s insurance premium being increased. Or that information about a person’s financial position will be passed to debt collectors who will use the information to retrieve debts. This will have a very immediate effect on a person’s life and property. This is just a small percentage of the risks which could arise through the signing of an agreement to pass on all personal data.
There are far more dangers.
Obviously a person can refuse to give consent to have all his or her personal data input into a database, held or passed on, however the level of legal awareness in Ukraine is unfortunately not high and this makes it more likely that a person’s data will become unprotected.
You have your partners’ business cards? You’re breaking the law!
The situation is exacerbated by problems in the Law on Personal Data Protection which specialists warned of for a very long time to no avail. Throughout the world the most sensitive information about a person, that is, their financial position, religious beliefs, political views, biometric data, ID number, are particularly protected. The law passed, however, defines even such information as name, telephone number, date of birth, which should be generally available, as personal data. This means that any client database, list of phone numbers of business partners or simply a stack of business cards fall under the category of a personal database and require registration. Nor does the law envisage any transitional period for businesses to gradually implement the requirements on personal data protection.
These and other problems basically render meaningless the fundamental task of a law on personal data protection, and demonstrate that the law does not comply with international standards on protecting personal data.
Freedom of expression
Stop Censorship calls on Yanukovych to address grave issues with press freedom
The civil movement Stop Censorship! has issued a statement in which it calls on President Yanukovych to reinstate quarterly press conferences, show journalists Mezhyhirya, his controversial residence outside Kyiv, and makes a number of other demands.
It states that over the last year the situation in the information sphere has significantly deteriorated. There are, it points out, a number of facts which demonstrate that this deterioration has been caused by actions of those in power.
Particular concern is caused by the situation on television channels. As evidenced by numerous monitoring studies, the TV news does not reflect the real situation in the country and basic journalist standards are not being observed. Some figures: a study by the Ukrainian Press Association and the Institute of Sociology found that in December 2010 63% of all mention of politicians concerned representatives of the ruling coalition; 30% - the opposition; and 7% - other politicians. In February this disproportion had increased with the figures 75%; 18% and 7% respectively. The lack of balance is especially noticeable on the State-owned First Channel, with government politicians accounting for 95% of the direct speech of politicians on that channel. .
The topics most often muffled are those linked with a reduction in various elements linked with the level of prosperity of the public as a whole, or particular groups, as well as with public statements and actions by the opposition; information connected with encroachments by the government on business; with the assault by the authorities on freedom of speech and conflicts caused by the government’s actions in the humanitarian sphere (Monitoring by Telekritika).
We would note that over the last year a number of journalist teams have reported censorship regarding coverage of certain topics linked with the activities of the government; Holodomor; the Tax Code protest in Kyiv; your residence, etc. At the same time, during that period many journalists who made public statements about censorship have ended up off air or out of work, while the quality of television news has significantly worsened. There is often internal censorship in editorial offices, or economic pressure, including from owners.
The reform of the State-owned TV channel into public broadcasting which you publicly expressed willingness for is not happening. The draft law “On Public Broadcasting” has not been considered in Parliament. There has been no reform of the post-Soviet relic seen in State-owned and municipal media outlets with these having been eliminated in all other post-Soviet republics.
We would also draw your attention to the lack of investigation into numerous crimes against journalists. Despite the fact that you took the case of Vasyl Klymentyev under your personal control, there have still been no results of the investigation.
The letter mentions also the lack of punishment for the Presidential guard who used violence against STB journalist, Serhiy Andrushko and the treatment by the Prime Minister’s guards of journalists from Channel 5. There are a number of cases, they say, which demonstrate negligence by the law enforcement bodies in investigating such offences.
While welcoming the adoption of the Law on Access to Public Information however this has still not come into force whereas there are a lot of issues concerning government openness. Decision-making behind closed doors without the public and media being information can seriously damage both the government’s image and its public support, they warn.
There have also been a lot of problems with the formation and activities of the National TV and Radio Broadcasting Council. Appointment of its members was marked by a scandal since they were not suitable for the posts, with all proposals from the public being ignored. We now observe how the Broadcasting Council is taking decisions which remove licences from those TV companies which broadcast programmes of TVi and “Chornomorska” which arouses suspicions regarding political engagement from this regulating body.
All of this indicates that there is no system of independent regulation in Ukraine and no free media market, with journalists remaining unprotected from physical harassment and pressure, while pluralism has been totally reduced.
The authors conclude from the appointment as Presidential Press Secretary of a member of the movement Stop Censorship!, that the President supports the principles and values of the movement. They therefore call on him to pay attention to the situation as soon as possible and take the following steps:
- promote openness of government in Ukraine, reinstating the practice of the President’s predecessors regarding open quarterly press conferences;
- carry out rotation in the journalist pool in order that members of various media outlets can cover foreign visits, not just those loyal to the government;
- promote reform of the Ukrainian media and ensure creation of a system of public broadcasting;
- draw up and submit a draft law on openness in media ownership;
- hold a meeting with members of the enforcement bodies with them providing an open report on crimes against journalists;
- make your position public regarding the disparity in coverage by television channels of the government’s activities and those of the opposition, with this disparity favouring the government;
- give a public assessment of the situation regarding the Broadcasting Council and around the television channels TVi; Channel 5 and “Chornomorska”, as well as the delay on announcing a repeat tender for the frequencies which these channels were stripped of;
- initiate discussion of these problems within the framework of the Public Council with the involvement of members of Stop Censorship! and independent experts;
- appoint as the President’s quota candidate to the Broadcasting Council somebody put forward by the public and supported by Stop Censorship!;
- Guarantee observance of media legislation regarding the powers of editorial councils within media outlets;
- honour the promise given a year ago and show journalists your property at Mezhyhirya.
Stop Censorship expresses concern over conflict around Gazeta po-kievski
The civil movement Stop Censorship! has issued a statement in which it calls on the owner and top management of the holding Glavred Media to resolve the internal conflicts as soon as possible, pay salary arrears to journalists and renew stable publication of the newspaper Gazeta po-kievski. It states that the newspaper which has been published since January 2003 and is one of the leaders on the printed press market in Ukraine has suspended publication. While the editorial office explains this as linked with organizational reasons, there are grounds for believing that there are problems with relations within the holding.
As well as expressing support for colleagues and calling for resolution, Stop Censorship also asks the Verkhovna Rada Committee on Freedom of Speech and the Media to initiate legislative changes aimed at increasing the role and independence of editorial councils and financial and procedural transparency of the media.
“Stop Censorship!” comes out in support of Volodarsky and Groisman
The civil movement “Stop Censorship!” is concerned over the criminal prosecutions of Oleksandr Volodarsky who is accused of hooliganism and flagrant disrespect for public morality and Dmytro Groisman, the Vinnytsa human rights activist charged with circulating pornography.
As reported here, Oleksandr Volodarsky was found guilty of hooliganism carried out by a group (Article 296 § 2 of the Criminal Code). This was over his protest against the actions of the National Expert Commission for the Protection of Public Morality when he and an unidentified female simulated sexual intercourse outside the Verkhovna Rada. Oleksandr was sentenced to one year’s restriction of liberty and is presently appealing against the sentence.
Dmytro Groisman is accused under Article 338 § 1 of the Criminal Code “desecration of State symbols” for posting on his blog in Live Journal a cartoon picture depicting an erect penis on the body of the Constitution of Ukraine. This carries a fine, custodial arrest or deprivation of liberty for up to 3 years.
He is also accused under Article 301 § 1 of the Criminal Code “Circulation of objects, images or works of a pornographic nature”,
“We are convinced that in both cases we are dealing with the flaws in legislation and application of law practice of the court as well as the law enforcement agencies which are continuing the practice of a totalitarian country in forming charges and punishing with the most severe sanctions for expressing protest, albeit “in cynical form”.
Whatever the aesthetic value of the performance against the Verkhovna Rada, this is not a matter for deprivation of liberty. However obscene the content of the statements in a private blog, this cannot be grounds for criminal prosecution.
As well as liberalization of court practice, there is also an urgent issue linked with reviewing the relevant norms of the Criminal Code. We hope that among the opposition or pro-regime majority there will be
National Union of Journalists issues protest over pressure on the press
On 16 February 2011 Ukraine’s National Union of Journalists passed a declaration alleging pressure from the authorities on the media and journalists. The statement points out the assertions from the authorities regarding freedom of speech, non-interference in the work of the media and free access to information are at odds with the actual situation. It adds that the number of approaches from media outlets and journalists regarding pressure has increased over recent times.
One of the first steps which Edward Matviychuk took in 2010 after being appointed Head of the Odessa Regional State Administration was to withdraw the Administration from being one of the founders of the single regional Ukrainian-language newspapers “Chornomorski Novyn” [Black Sea Newss], this meaning the removal of financial support. The Union states that the argument that this was to save money does not withstand scrutiny since other publications received increased spending.
As an example of how the government’s statements do not match their actions, the Union mentions the situation with the eviction of two editorial offices: the journal “Tribune” and the annual publication “Science and Life”.
Other examples are cited of interference by the heads of regional councils in the work of the media in the Khmelnytsky, Cherkasy and Zaporizhya regions.
The Secretary of the National Union of Journalists, Viktor Nabrusk was dismissed with infringements of labour legislation after over 10 years of work.
“We believe that resolution of staffing issues in editorial teams should be a matter for the teams themselves and that the heads of media outlets should be elected by an open, not secret, vote of the staff of those outlets. “
Access to information
Secrets defended to the last
It was back in 2007 that the Public Committee for Fighting Corruption turned to the Ternopil City Council asking to see the decisions taken by previous Councils regarding transfer of land and other municipal property into the ownership or use of particular individuals, as well as documents linked with implementation of these decisions. There seemed no reason for the Council to be worried since even if unseemly details emerged, they implicated their predecessors, not them.
However the authorities understand that any concession can become a dangerous precedent, and who knows, maybe Ternopil residents will then want to see present decisions pertaining to land and property. The Public Committee therefore had its request turned down, on the pretext that this was information on restricted access. Our ministries and departments have indeed issued plenty of orders stamping as classified a huge amount of socially important information.
The Public Committee for Fighting Corruption did not give up, but filed a suit with the regional Economic Court asking the court to declare the inaction of the City Council be declared unlawful, and order it to release for viewing the decisions of previous councils. The Ternopil courts rejected the suits saying that since the information sought carried stamps restricting access, it was legitimate to refuse to provide it.
The city officials did not have long to bask in their victory with the Lviv Administrative Court of Appeal cancelling the first instance court’s ruling and partially allowing the claim. The inaction of the Ternopil City Council in not providing the information was declared unlawful and they were ordered to provide the claimant with previous councils’ decisions. The Court stressed that the decisions of a body of local self-government, in this case, the Ternopil City Council, on regulating land relations were public acts whether they concerned individuals or the public in general since they had a direct or indirect impact on the interests of all the city residents.
The Ternopil City Council appealed against this inconvenient court ruling to the High Administrative Court which also decided against them. Incredibly the Council still refused to put an end to the court wrangling dating back to 2007 and at the end of 2010 they applied to the Supreme Court for a review of the High Administrative Court, alleging an incorrect application by the cassation level court of the law. Here they were also unsuccessful, and there were no more avenues for them to follow.
The City Council is thus forced to provide the information, and this is a vital precedent.
Furthermore in April this year the Law on Access to Public Information comes into force. Article 6 of this states that “access may not be restricted to information about the use of public funding, the taking ownership, use or disposal of State-owned or municipal property, including access to copies of the relevant documents, the conditions under which they received this funding or property, the first name, patronymic and last name of individuals and the names of legal entities which received this funding or property”.
Social and economic rights
Corruption in Law
In his article for Ukrainsky Tyzhden, Oleksandr Mikhelson comments that according to Tao, the process of achieving ones goal can be more important than the result, and suggests that the fight against corruption in Ukraine is following this principle.
This week the Verkhovna Rada did not manage to adopt the much trumpeted draft law on fighting corruption submitted by President Yanukovych. This was despite the fact that the day before, meeting with the leaders of the party factions, Yanukovych had publicly stated that the law needed to be passed “as soon as possible”. Technically there had been the possibility of doing so the next day. Yet several of the most fundamental provisions will be considered by April and it is difficult to predict what the outcome will be.
The package of anti-corruption laws whose adoption GRECO (the Group of Council of Europe Countries against Corruption) has been actively demanding from Ukraine, was adopted the year before last. Yet it never began working, with its entry into force being postponed twice, and then in December 2010, several days before it was to come into effect, it was cancelled altogether. So clumsily at that that they removed the profile law passed back in 1995 as well. The latter deserves separate commentary.
The 21 December 2010 law which cancelled the package of anti-corruption laws came into effect only on 5 January 2011. That means that for all of four days the package of laws was in force. It had no time to make any impact on the level of corruption, but was there long enough to cancel the 1995 Law on Fighting Corruption. At least it is with such comments that the relevant State acts are placed in the Verkhovna Rada database. Thus at present there is practically no anti-corruption legislation in Ukraine at all. With the exception, of course, of the Criminal Code regarding bribe-taking and other official crimes, however that is a somewhat narrowing topic.
At the same time in December Viktor Yanukovych tabled a new anti-corruption law which according to deputies who are lawyers was largely a repeat of that cancelled. At first glance it is hard to fathom why the Guarantor of the Constitution and the obedient parliamentary majority needed to first declare null and void the existing laws subjecting Ukraine to criticism from Europe and then begin from scratch considering documents with analogous content.
It is however well-known that some points of the new draft law, taken from the acts which were cancelled, have enormously worried those in power. This concerns first and foremost the requirement to declare no only income, but also expenditure. Nor merely for those in power, but also for members of their families. The latter norm was already trimmed during the first reading of the draft law on 23 December: The wives, brothers, children and other relatives of potential corrupt dealers will not have to declare anything. Yet even in this form the document did not satisfy the legislators.
Therefore, considering the draft law in its second reading on 15 March, the parliamentarians deferred discussion of Articles 11 and 12 – those dealing specifically with financial control over expenditure of officials and representatives of local self-government. At the proposal of the Speaker, Volodymyr Lytvyn, those points were returned to the profile committee to be considered in a “repeat second reading”.
Article 1 of the draft law which contains definitions of the terms was also postponed. And, finally, the “Transitional Provisions”, which establish the timeframe for entry into force, were returned to the committee.
Now the final review of the draft law can only take place in the plenary week beginning on 4 April. Meanwhile, declarations on income are submitted by the first of that month. Thus declaration by those in power of income and expenditure according to the new rules, even if parliament does pass them, will only begin in a year. And a lot can happen in one year.
Who stands to gain from children officially not existing?
Who came up with the idea of refusing to register children not born in a maternity home? Who will save money on those mothers who have given birth or will at home? Who wants to drag young parents through the courts? The correct answer is the Ministry of Justice.
Many media outlets have reported that from now on, except in special circumstances, children not born in maternity homes will not be registered. Parents of children born at home will be forced to argue their case through the courts, with an exception being made only for those who really didn’t have time to get to a maternity ward. Others will not be able to receive the birth certificate with the customary package of documents – the certifying note from a paediatrician and statements from two witnesses.
According to Maxim Shcherbatyuk, lawyer for the Ukrainian Helsinki Human Rights Union, the amendments made by the Ministry of Justice to the Rules for State Registration of Civil Position Acts in Ukraine have restricted the rights of one group of mothers regarding registration of their children. He explains that previously women who gave birth at home could register their child on the basis of a medical certificate and statements from two witnesses present at the birth, whereas now they will have to seek registration for their children via the courts.
Since this is likely to take a long time, he points out, this will also result in violation of the child’s rights.
“Clearly the State budget will win out from this innovation since until those children are registered it will be impossible to receive any form of assistance allowed for by legislation on families with children. It will also be impossible to receive concessions as a family with many children if the said child is the third child in the family”.
Law enforcement agencies
KHPG: calls on President to remove Minister of the Interior
Appeal from the Kharkiv Human Rights Group to President Yanukovych,
The Kharkiv Human Rights Group has on a number of occasions stated, including during the presentation of the report by human rights organizations Human Rights in Ukraine - 2009-2010 that under the leadership of the Minister of the Interior, Anatoly Mohylyov, the police have turned into an instrument of repression and represent a danger to Ukraine’s national interests.
Instead of fulfilling its direct calling, that being to carry out law enforcement functions, defend the rights, freedoms and legitimate interests of its citizens, the Ministry is functioning as a repressive, punitive body, violating at every move human rights and effectively those principles which it is supposed to defend. We consider that this is due to the incompetence of the Minister of the Interior, Anatoly Mohylyov.
As soon as he was appointed Minister, Mohylyov began folding cooperation programmes between civil society and the police. the Department for Human Rights Monitoring under the MoI was effectively dissolved, the Human Rights Assistants to the Minister dismissed even despite the President’s statement with respect to these events that “one cannot economize on human rights”. The work of the mobile groups and public councils has stopped.
According to social research carried out by the Kharkiv Institute for Social Research together with the Kharkiv Human Rights Group, the number of victims of unlawful violence by the police rose from 604 thousand in 2009 to 780-790 thousand in 2010. The number of deaths in police stations increased from 23 in 2009 to 51 in 2010. This is evidence of the lack of professionalism in the management’s work.
Some of Mohylyov’s public utterances have pushed his subordinates towards an unlawful manner of behaviour, abuse of power and their official position.
On 9 July during a programme on the TV channel Inter, the Minister stated that he would assess the work of his ministry by the number of criminal investigations initiated. Such a policy is essentially even worse that figures for crimes unsolved and promotes the use of unlawful methods by the police force.
A great deal of publicity was given to the Minister’s statement: “I don’t plan to even check reports in the press or on the Internet”. Yet according to Item 4 of Article 94 of the Criminal Procedure Code, “reports published in the press” which contain signs of an offence, should be checked with a decision being taken as to whether or not to initiate a criminal investigation.”
Furthermore, commenting on the investigation into the terrorist act in Makiyivka, Mohylyov proudly announced that “more than three thousand people have had their fingerprints taken”. This is a clear acknowledgement of wide-scale violations of the Law on the Police and MoI normative actives regarding the fingerprint register since only people who have received an administrative punishment in the form of administrative arrest for a period of between 1 and 15 days, or who are the subject of a criminal investigation, are liable to such procedure.
The Minister’s instructions and public pronouncements regarding assessment of the MoI’s work when confidential information is demanded regarding people who are receiving antiretroviral and replacement therapy also infringe a whole range of legislative norms, including through coercing documents to carry out a criminal act, that foreseen by Article 145 of the Criminal Code “Unlawful divulgence of medical secrets”.
There are very many examples, and we must with regret state that Mohylyov in his professional capacity and level of legal awareness does not meet the requirements of the post of Minister of the Interior in a democratic society. He has totally discredited the MoI which did not in any case have a very good reputation and his continued presence in this position will only worsen the human rights situation in the police , help to exacerbate waves of nationwide protest and spoil Ukraine’s image at international level.
We insist on the dismissal of Mohylyov from his post as Minister of the Interior
Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group, member of the board of the International Memorial Soceity
Petition launched for the dismissal of Mohylyov as Minister of the Interior
The following is a petition to President Yanukovych calling for the dismissal of Anatoly Mohylyov, Minister of the Interior, and providing grounds for this call.
“We as Ukrainian citizens consider that during the time that the Ministry of the Interior has been headed by Anatoly Mohylyov, there has been systematic degradation of the law enforcement bodies. One can cite as examples the sharp increase over previous years in the number of unlawful actions by law enforcement officers against Ukrainian citizens and foreign guests in our country. There has been an increase in the number of unwarranted detentions by the police of Ukrainian and foreign nationals.
Prominent violations of the law, namely the beating up by police officers of media representatives, including Yury Stetsenko from Poltava, Artem Furmaniuk from Donetsk, employees of the publication “Free Odessa” have still not received the appropriate legal assessment from the leadership of the law enforcement agencies, in particular the MoI. The investigation into these cases is moving very slowly.
The improper attitude to journalists by the police has not gone unnoticed by international organizations. It is not least because of the interference of MoI employees in the activities of the media that Ukraine has fallen to 131st place in the Reporters without Borders rating, this being lower than Iraq.
Since Anatoly Mohylyov has held the post of Minister there has been an increase in the number of deaths of our citizens in police stations. Some of these cases are in their essence akin to murder, for example, the death in April 2010 in the Shevchenkivsky District Police Station in Kyiv of student Ihor Indylo. From March to October last year, according to MoI official data, 28 people died in police stations. According to unofficial data, however, there were more than 40 such deaths. Most of these deaths, especially those in the capital, have not been properly investigation, while in individual cases the investigations have been simply sabotaged by the law enforcement bodies.
The Ministry of the Interiro has turned into an instrument of repression with the help of which civic activists and opposition politicians are persecuted. Unlawful detentions, searches, “prophylactic talks” are returning the country to its totalitarian past.
Corruption and abuse of power by police officials have become widespread and an even legalized phenomenon which shames our country and kills any hope among Ukrainian citizens of just protection by the State of their safety and rights.
In view of the above, we call on you to in the very near future removed the higher management of the MoI, headed by Anatoly Mohylyov from the exercising of their duties.
The petition, together with al signatures, will be publicly handed to the President’s Administration.
Human rights protection
Human rights in Ukraine: assessment of the new regime’s first year
In Ukraine from 2005 to 2009, with certain exceptions there was no integrated and systematic policy on improving the human rights situation. The actions of virtually all bodies of power were ineffective and chaotic. The attempts to improve the situation made by human rights organizations, some sections and individual civil servants within the MIA and Ministry of Justice, the National Commission on the Strengthening of Democracy and Affirmation of the Rule of Law resulted in some progress, however the political crisis, general attitude of the political forces to human rights as to something of secondary importance and insignificant against political expediency prevented systematic improvements.
Following the elections, the new President and government inherited systemic human rights problems including: large-scale and flagrant violations of the right to fair trial, to protection from torture and other forms of unlawful violence, unwarranted detention, the poverty of a considerable percentage of the population, as well as others. The authorities during 2010 not only failed to demonstrate any intention to improve the situation, but even reduced the positive processes which had been underway and new trends in violations of human rights emerged, together with disregard for such rights. One saw a sharp assault on civil rights and political freedoms.
There were far more violations of freedom of peaceful assembly during this period then from 2005-2009 put together. On 25 March the Cabinet of Ministers issued an instruction to the Kyiv City State Administration “on using comprehensive measures for organizing work with citizens and their organizations, including preventing and stopping in future the holding of protests near the premises of the President’s Administration and the Cabinet of Ministers”. This instruction is a flagrant violation of freedom of peaceful assembly and a number of articles of the Constitution.
The Minister of Internal Affairs stated that for peaceful gatherings one should allocate “some big field on the outskirts of Kyiv where nobody will disturb anybody”. Traffic Police officers prevented people from many regions getting to Kyiv for an opposition rally on 11 May. The transport companies were warned that they could have their licenses removed if they took the people to the rally. Only one nationwide TV channel, STB, reported this. In general, the use of the police as an instrument in fighting political opponents and the public has become a regular feature. For example, in Kharkiv on 15 May police officers prevented local residents from holding a peaceful protest over the rubbish being left on the city streets. Two protesters were detained. During the events to mark President Yanukovych’s first 100 days in office on 3 June, the police obstructed opposition supporters from holding a protest near the Ukraina Palace where the President was giving his address. At the same time, activists from the Party of the Regions were able to hold a meeting in support of Yanukovych opposite the Palace without any obstruction. On 8 July the traffic police prevented buses with member of the Front for Change (led by Arseny Yatsenyuk) from Zaporizhya, Mykolaiv, Ternopil and Chernihiv from getting to a rally in Kyiv against the draft Tax Code. On 27-28 July the traffic police prevented pilgrims from the Ukrainian Orthodox Church of the Kyiv Patriarchate from getting to Kyiv for the events around the Festival of the Baptism of Kyivan Rus. The list of cases where the police have interfered in political and civic actions is getting longer and longer.
Both Ukrainian and international experts have reported a marked deterioration in the situation with freedom of expression since the end of February 2010. You can still find a lot of material critical of the new administration on the Internet and in the printed media. However on television censorship has re-emerged in various ways, including banning or simply avoidance of reports critical of the government, reduction in editorial control and the issuing of specific instructions to include or remove certain political issues and facts. In general the news on television and radio stations have again become bland and vapid, and talk more about natural and other cataclysms abroad than events in Ukraine. The reduction in freedom of expression can also be seen in the disappearance of several hard-hitting talk shows, and the cancellation of the broadcasting licenses of two independent TV stations, TVi and Channel 5.
The number of physical attacks and cases of harassment of journalists has increased in the last six months, with the reaction of the authorities being inadequate. Those responsible have not been held to account. Vasyl Klymentyev, Chief Editor of the newspaper "New Style" disappeared on 11 August in Kharkiv. Klymentyev’s disappearance is reportedly linked to his reporting on corruption in the Kharkiv region. The police initiated a homicide investigation despite his body not having been found. The investigation, in our opinion, is sluggish and inefficient.
There has been a considerable reduction in political liberty overall. The Rector of the Ukrainian Catholic University Father Boris Gudzyak reported that an SBU [Security Service] officer had tried to get him to sign a letter, without leaving him even a copy, in which the Rector would agree to warn students off taking part in any protests “not authorized by the authorities” Father Gudzyak did not even read the letter and made the visit public. It is, however, certain that many rectors of institutes signed such a letter. We are also aware of a separate Order from 22 April this year according to which in district Departments of Education in Kyiv and in each secondary school, people were appointed responsible for “providing information regarding the city authorities, enhancing the quality of information and analytical material on socio-political and highly publicized events in the city and districts, including providing swift information about what is happening in the district on a day to day basis”. The motive for the issue of this order is simple: “increasing the attention of the President’s Administration leadership to information regarding the city authorities”, and this information will be sent to the department of internal policy of the State administration.
The existence of such letters from the SBU to rectors and such orders demonstrate the wish to impose total control over civic life in educational institutions. At the same time, students across the country, particularly those protesting against the new Minister of Education, have for some time complained of being under pressure. At present this is on the level of “preventive chats” in the Dean’s office, yet these are laced with threats of expulsion if the students don’t give up protest activities. The SBU has applied the same “preventive measures” with regard to activists of NGOs in connection with their protest activities.
It is clear that we are dealing here with “prophylactic measures”, when the SBU have taken a written undertaking from blogger Oleh Shynkarenko to not criticize the authorities “in strong form” on his Live Journal blog. Everybody now knows that the SBU not only reads individual blogs but may turn up on their authors’ doorsteps. Obviously, in all democratic countries secret surveillance does take place aimed at preventing terrorist acts or real threats to the life of a public figure or to State security. Neither the blogger who wrote the words “kill the reptile” with President Yanukovych in mind, nor the members of the Kharkiv regional branch of the Union of Ukrainian Youth [SUM] who wrote a letter to President Obama, nor Nico Lange, Director of the Kyiv Office of the Konrad Adenauer Foundation, who wrote a critical article about authoritarian tendencies during Yanukovych’s first 100 days in office, presented any such danger. If they had, then the blogger and representatives of SUM would have been arrested so that their criminal behaviour could be proved by the court, and Nico Lange would not, after 10 gruelling hours at the airport, have been let back into the country (although the Prosecutor General’s Office, as well as the SBU, have still officially called his actions "interference in Ukraine’s internal affairs).
In a democratic country such intimidation and pressure on citizens and guests to the country are not merely prohibited by law, but absolutely unthinkable, and there is simply no place for so called “prophylactic measures”.
The policy on memory has changed radically. Material on the history of political repression has been removed from the websites of the President and regional administrations. New attempts to foist a Soviet view of history and to rehabilitate Stalinism, with a bust of the dictator being erected in Zaporizhya on 5 May elicited outrage. Only 141 Verkhovna Rada Deputies supported a draft resolution condemning the erection of the monument. While declaring the wish to unite the country, the Party of the Regions, together with their coalition partner – the Lytvyn Bloc and the Communist Party – are effectively dividing it, since nothing could be more divisive than such steps.
The same can be said about the “revision” of history textbooks. This year already the Ministry of Education has updated textbooks for the fifth grade. In the next school year a revised textbook on most recent history is scheduled for issue for the 11th grade.
The Ministry of Education has adjusted the history syllabus for the 9th grade and proposed the relevant changes to the textbook: “Introduction to Ukrainian History”: reference has been removed to the artificial nature of the Famine of 1932-1933, the repressions in Western Ukraine in 1939 after the Soviet Union occupied it; fragments of a text about the Heroes of Kruty (students who died defending Kyiv in 1918); the actions of the Ukrainian Resistance Army [UPA] during the Second World War, and the Orange Revolution.
There are around 20 proposals for changes to the textbook with a significant number of these concerning the policy of the Russian Empire and USSR in Ukraine, and aimed at forming an unaggressive image of them.
There have been flagrant abuses of the right to privacy. The President’s Administration has introduced illegal collection of personal information which is in flagrant breach of the Constitution and the recently passed Law on Personal Data Protection (which, incidentally, has very seriously flaws). The Deputy Head of the President’s Administration and the Head of the Central Department of Regional and Staffing Policy , S. Skubashevsky, sent a circular to the Head of the Crimean Council of Ministers and to the Heads of regional administrations in which they propose “in order to receive information regarding the socio-political, socio-economic situation in Ukraine’s regions” by 9 July 2010 to “prepare passports of the regions as of 1 July 2010 (following a fixed format) and send them by email. These passports should be updated and sent on a quarterly basis.
There are 11 sections of the passport with these including, as well as some about the population structure, socio-economic readings, social sphere, etc, the following:
6. Political parties, civic organizations, professional societies;
9. Results of the last elections;
10 Heads of the district, enterprises, institutions, organizations, well-known and influential people (those with impact on the political situation
11. Means of communication
In Section 6 , as well as lists of professional societies, district and city branches of parties, civic organizations, they want the number of members, address, as well as full names, telephone, position and home address of their heads.
Section 9 wants the results of all elections from 2004, as well as information about factions and groups within councils, including personal data about the heads, information about their influence on the council and relations with the head of the council.
In Section 10 you need to give personal data about heads of enterprises, institutions, organizations and educational institutions of the area; heads of agricultural and farming businesses; council deputies, heads and deputy heads, and secretaries of rural councils, as well as so-called “influential individuals”. The data collected includes information about their party affiliation (political orientation) and who they supported at the presidential elections in 2010.
Section 11 wants detailed information about television and radio companies and the printed press set up in the region, including their sources of finance.
The collection of personal data is clearly being carried out to ensure control over political activity in the country and the advantage of the ruling party.
This same purpose is pursued by the “Standard agreement between co-founders of a media outlet and the editorial office regarding guarantees for the independence of editorial policy”. This contains the requirement for co-founders of the media outlet to “publicly declare their support for a political force at the elections, stating which specific political force, as well as the forms of such support”. Editors are required to provide written notification to the co-founders of membership of a party or civic organization.
The appearance of the same text for this agreement in two regional (oblast) centres – Sumy and Ternopil – give good grounds for assuming that the agreement has been introduced throughout the country.
Ukrainian and international observers and specialists who monitored the campaign for the 31 October Local Elections gave an extremely negative assessment of the elections. The organization and running of the local elections bore witness to a clear move backwards by the political regime to the disregard for democratic standards and freedoms. The campaign was the worst for five years. The overall assessment of the elections (from the adoption of the Law which significantly reduced rights, established certain privileges and restricted public control, to the process of determining the elections’ outcome) give grounds for asserting that the local elections did not meet the standards for free, honest, fair and transparent elections. Civic groups could observe the elections but everything was done to prevent fully-fledged public control.
Plans for a radical review of the direction and content of educational reform announced by the Minister of Education, Dmytro Tabachnyk, the opening of preparatory courses and the possibility of entrance exams to higher educational institutions along the old grounds mean an effective cancellation of independent external assessment, the loss of equal access to higher education and a restoration of the former scale of corruption in higher education. The President of the Kyiv Mohyla Academy, Serhiy Kvit believes that Dmytro Tabachnyk’s policy is aimed at authoritarian centralization of management and degradation of science and education in Ukraine. The Ministry of Education has drawn up a draft Law on Higher Education which is effectively aimed at stymieing the development of Ukrainian universities, depriving them of any autonomy, preventing them reaching an internationally competitive level. The draft law needs to be totally rejected with a new one drawn up on entirely different lines.
The Verkhovna Rada has passed a number of laws which seriously violate human rights (for example, the Law on the Local Elections, many articles of which do not meet generally recognized democratic norms and standards) and is concept strategies and draft laws aimed at protecting them, for example, a concept framework for the reform of the judiciary, criminal justice and the progressive Criminal Procedure Code.
The judicial reform proposed by the President despite a number of positive innovations violates the Constitution and international standards for the right to a fair trial, and runs counter to the public’s needs. . The extended powers of the High Council of Justice to appoint and dismiss the heads of courts, as well as to examine judges’ complaints against being refused indefinite tenure, are in breach of Article 131 of the Constitution. Equally in breach of the Constitution is the removal of the Supreme Court’s possibilities on standardizing court practice through its being stripped of its right to pass the final judgment in a case, the retention of the possibility of examination of court rulings in case of conflicting application of only norms of material, not procedural law, and only where such a review is allowed by the relevant high specialized court whose ruling is being appealed against.
The failure to establish objective criteria and competition when moving judges, including when electing them to higher level courts is also not in line with international standards. The same is true of the retention of an inquisitional (not adversarial) procedure for holding judges to account where a member of the High Council of Justice or the Higher Qualifying Commission of Judges is at the same time investigator, prosecutor and judge with respect to the judge.
The public’s interests are also not adhered to with: the introduction of the possibility of court examination without the participation of a party who was not informed of the hearing through, for example, the fault of the post; the significant reduction in the time frames for lodging appeals and cassation appeals; reduction in the periods for examination of a case at each level to one or two months, in some categories to 20, 15 or even 5 days; removal of the right to ask for a judge to be taken off a case if the circumstances giving grounds for this are learned about only after the examination of the case has begun.
Following the adoption of the Law on the Judicial System and Status of Judges, citizens have received swift, but unjust court proceedings from dependent judges. In order to ensure fair courts and real independence for judges, the Law needs to be returned to the Verkhovna Rada for new consideration.
It should be noted that preventive safeguards in the checking of draft laws by the Ministry of Justice to see that they comply with case law of the European Court of Human Rights are effectively not working.
There have been repressive measures and violence against trade union activists and human rights defenders. The Krasnodonvuhyllya company [coal mining – translator] is destroying the Independent Miners’ Union because it refused to give its consent to a worsening in pay conditions in breach of legislation. On 14 September journalist and human rights defender, head of the Kherson Regional Branch of the Committee of Voters of Ukraine, member of the Board of the Ukrainian Helsinki Human Rights Union, Dementiy Bily, was beaten up by the security guards of Kherson’s Mayor, Volodymyr Saldo.
Administrative pressure by the authorities has increased which is evidenced by the significant increase in complaints against arbitrary behaviour by tax and other regulatory bodies.
The list of cases involving harassment of civic and human rights activists goes on and on. There have been such cases in Kyiv, Lviv, Kharkiv, Donetsk, Vinnytsa, Kherson, Zaporizhya, the Crimea and other cities. The number of such cases during the last 6 months of 2010 far exceeded their number over the previous five years altogether. On 27 October the Ukrainian Helsinki Human Rights Union published an open appeal demanding that the authorities stop the harassment and calling on the international community, international organizations and foreign embassies to try to influence Ukraine’s policy so as to stop harassment of human rights activists for their work. The appeal European Union and EU countries to more actively apply the Guiding Principles of the EU on the protection of human rights and to draw up a plan for inculcating these in Ukraine.
Administrative pressure by the authorities has increased which is evidenced by the significant increase in complaints against arbitrary behaviour by tax and other regulatory bodies. During the second half of 2010 the relations between small business owners and the authorities turned into open confrontation due to the preparation and adoption of the Tax Code.
We would note that President Yanukovych has on a number of occasions reacted to cases of human rights abuse in his speeches, asserting that “criticism from opponents is a vital component of democratic society”, that “you mustn’t save on human rights” and so forth. However one has the impression that these statements are a ritual and nobody plans to follow such recommendations.
There is virtually no response from the authorities and bodies of local self-government to appeals from the public, to protests against unlawful actions, reports of human rights abuse with these all simply ignored. Instead the regime in the second half of 2010 resorted to open political persecution.
At the same time protests are increasing. Over the first 6 months of 2010 the number of peaceful public gatherings rose by 30%, with the number exceeding that for all of 2009. The number during the second half of the year was clearly much higher than during the first. The Administration should therefore realize that pressure by means of force on society will only exacerbate conflict. According to research carried out by the Razumkov Centre 60% of those surveyed are prepared to take part in protest, with 32 of the 60% willing to take part in unlawful protests. This is highly disturbing and should be a very serious signal to the regime that its policy is unacceptable and needs to be changed.
See Human Rights in Ukraine – 2009-2010 for more detail http://khpg.org/en/index.php?r=18.104.22.168
Dissidents and their time
In Memoriam: Ivan Hel
The death has been announced of Ivan Andriyovych Hel, publicist, human rights defender, active participant in the national liberation and Greek Catholic movements from the 1960s, and twice a political prisoner.
He was born on 17 July 1937 in the village of Klitsko in the Lviv region and died on 16 March 2011 in Lviv after a second stroke. He had long suffered from diabetes.
Hel’s father was a former fighter in the Ukrainian Resistance Army (UPA), and later the chairperson of the cultural and educational association «Prosvita» [“Enlightenment”] in his village. He was sentenced to 20 years in 1950 for helping the Organization of Ukrainian Nationalists. Ivan’s first encounter with the Soviet authorities was at the age of thirteen, when during the arrest of his father, the MGB (earlier name of the KGB) officers beat up both his mother, and then Ivan when the latter tried to protect his parents.
Hel’s first conscious act of civic disobedience was his public refusal to join the Komsomol, for which in 1952 he was expelled from school after completing the first term of his tenth (final) grade. After finishing evening school he attempted to apply for a place at Lviv University, however his application papers were not accepted, the grounds being given that he was the son of a Bandera-supporter. He found himself a job as a mechanic in a Lviv factory for loading vehicles.
In 1961, on the hundredth anniversary of the death of the great poet, Taras Shevchenko, Hel and his friend laid a crown of thorns at his monument in Kyiv. It was at that time that he met M. Horyn who was already in contact with the Kyiv Sixties activists Ivan Svitlychny, Ivan Dziuba, Yevhen Sverstyuk, Vasyl Symonenko and others.
He now began preparing and distributing samizdat material
On 24 August 1965, in his sixth year of studies, Hel was arrested together with other Ukrainian dissidents. He was sentenced on 25 March 1966 by the Lviv Regional Court under Articles 62 § 1 (“Anti-Soviet agitation and propaganda”) and 64 of the Criminal Code of the Ukrainian SSR to 3 years harsh regime labour camp for distributing Ukrainian samizdat and for “organizational activity”.
He served his sentence from 1966 – 1968 in the Mordovian political labour camps where he met many representatives of the democratic movement in the USSR.
In 1967 he wrote letters on two occasions to the Presidium of the Verkhovna Rada of the UkrSSR in defence of the Ukrainian Greek-Catholic Church and demanding the abolition of Article 62 of the Criminal Code.
Following his release, Hel was not allowed either to return to his studies at the university or to get registration in Lviv. He lived in the town of Sambir in the Lviv region.
He printed in samizdat and distributed 11 books, among them “Sered snihiv” [“Amid the snow”] by V. Moroz, which included all the latter’s publicist writing and poetry (Ivan Dziuba’s “Internationalism or Russification?” and others.
In November 1970 Hel sent a letter of protest to the Supreme Court of the UkrSSR in connection with the sentence meted out to Valentin Moroz On 7 December of that year Hel spoke at the funeral of Alla Horska, calling the murdered artist a faithful daughter of the Ukrainian renaissance of the 1960s and comparing her fate with that of her people. In retaliation he was issued with a severe reprimand for alleged unexplained absences from work.
Hel was arrested on 12 January 1972 and in August was sentenced under Article 62 § 2 of the Criminal Code of the UkrSSR to 10 years special regime labour camp and 5 years exile.
He served this sentence both in the Mordovian and the Perm political labour camps, and the period of exile in the village settlement Mylva in the Komi Autonomous Soviet Republic.
He returned from exile to Ukraine on 17 January 1987 during the period of “perestroika”. From 1988 he played an active role in public life (as leader of the Committee in defence of the Ukrainian Greek-Catholic Church, editing the journal “Khrystiyansky holos” [“Christian voice”] and was involved in the creation of the organization “Memorial” and the Narodny Rukh Ukrainy [The Popular Movement of Ukraine] (Rukh)
 Stepan Bandera was the leader of the more militant factions of the OUN and UPA [Ukrainian Resistance Army] (translator’s note)
 Also “Anti-Soviet agitation and propaganda”, but Part 2 was applied when the person was charged a second time. The sentence was much harsher, and the person was designated a “particularly dangerous repeat offender”. (translator’s note)