“Prava Ludiny” (human rights) monthly bulletin, 2011, #04
Charges against Kuchma: Is this about murder – or politics? Against torture and ill-treatment
Another death following a visit to the police station The right to a fair trial
Tax Code Protest prosecutions reminiscent of 1937 cases Freedom of expression
Joint statement by Kyiv Post journalists and owner Mohammad Zahoor Zahoor: Brian Bonner is to remain Editor of Kyiv Post Kyiv Post on strike: details Access to information
Appeal regarding proposed amendments to the Law on Access to Public Information Retreat from Access? Freedom of peaceful assembly
Court bans – restriction of freedom of peaceful assembly or interference? Social and economic rights
National Deputy of Ukraine: cost effective? Refined torment of miners Human trafficking
La Strada: The Government is destroying anti-human trafficking policy The right to health care
Real improvement n Ukraine’s Drug Police or another Show? Human rights protection
Ukrainian Helsinki Human Rights Union now has 30 member organizations
The right to life
Charges against Kuchma: Is this about murder – or politics?
Ukraine has a reputation for unresolved mysteries. Years after the crimes, it's still not certain who poisoned Viktor Yushchenko, who orchestrated the 2004 election fraud that prompted the Orange Revolution, or -- perhaps most achingly -- who gave the order to kill investigative journalist Heorhiy Gongadze.
The 31-year-old Gongadze was kidnapped and brutally slain in 2000. Since then, a popular rendition of the crime scenario has steadily emerged, starting with the ground-level hit men and traveling all the way up the political chain of command to the country's then-president, Leonid Kuchma.
But apart from a handful of police officers convicted of carrying out the actual killing, no one has been tried in the case. So it was big news when prosecutors announced on March 24 -- more than a decade after the crime -- that they were charging Kuchma in connection with Gongadze's death.
But to many observers, the move seemed less like due process and more like political game-playing -- a notion President Viktor Yanukovych tried to dismiss earlier this week.
"This is all natural. There's a rumor that this process is turning political, but that's all it is -- a rumor, " Yanukovych said on March 28. "Certainly, this is unpleasant for Leonid Danylovych [Kuchma]; no one would envy him in this situation. But it's necessary to get this over with already."
It's uncertain, however, that the Kuchma charges will bring a definitive end to the Gongadze affair. The backbone of the prosecution's case rests on hundreds of hours of digital recordings made secretly by a member of Kuchma's security staff, Mykola Melnychenko.
The Melnychenko tapes purport to capture Kuchma talking about Gongadze -- one of the former president's most dogged critics -- and ordering subordinates to "deal with him." Melnychenko went public with the recordings in late 2000; an American forensic company, Bek Tek, later concluded the tapes were authentic and that the voices included those of Kuchma.
Kuchma has denied any involvement in Gongadze's death. And the former president has so far managed to avoid a bizarre procedural request to submit to a simultaneous interrogation with Melnychenko while both men are in the same room. Melnychenko accused the former president of playing for time.
"Leonid Kuchma is using every possibility to delay a face-to-face meeting [with me], so that he can personally meet Yanukovych and blackmail him, " Melnychenko said.
"Kuchma has some knowledge that he wants to use to blackmail Yanukovych in order to get him to stop the investigation, an investigation that includes face-to-face meetings. Because of this, Kuchma ignored the warning that investigators gave him on Monday [to attend the interrogation]."
Kuchma did report for questioning today, albeit alone, and used the back entrance to the Prosecutor-General's Office to avoid journalists.
Further Fallout From Tapes
The Melnychenko tapes have stirred anxiety in many corners of Kyiv, where they have the potential to spawn a host of additional cases. Numerous officials, including current Prime Minister Mykola Azarov and parliament speaker Volodymyr Lytvyn, are allegedly implicated in the recordings, captured in conversations revealing a massive web of corruption and criminal activities.
Prosecutors have indicated they are not pursuing charges against Lytvyn, who as speaker holds immunity that Kuchma doesn't. But many observers -- including Melnychenko himself -- believe Lytvyn, who once served as Kuchma's chief of staff, played a critical role in the killing.
Political analyst Volodymyr Fesenko says prosecutors should exercise caution before introducing the tapes as evidence. "Lytvyn is the weakest link in this political and legal chain, " he says. "He knows a lot -- not only about politics a decade ago, but politics today. It would be dangerous to make the tapes the main evidence against Kuchma. And there's virtually no other evidence. Authorities here should proceed very, very carefully."
But many legal experts -- including Kuchma's high-profile American defense attorney, Alan Dershowitz -- have challenged the veracity of the recordings to begin with. In a statement circulated by Kuchma's spokesperson, Dershowitz said it was "relatively easy to change words on a digital recording to create guilty-sounding statements."
Doubts Over Evidence, Witnesses
Part of the uncertainty rests in the fact that Melnychenko has never offered a credible explanation for why he made the tapes or presented the recording devices he used to make them. Valentyna Telychenko, the lawyer for Gongadze's widow Myroslava, says she has doubts the recordings will ultimately be introduced as evidence.
"Whether the court will accept these recording as valid evidence is an open question, " Telychenko says. "They might say: 'The good prosecutors presented this invaluable evidence, but the bad court did not accept it. What else can we do?' Melnychenko still has not provided the equipment he used to make those recordings."
Telychenko and Myroslava Gongadze have also expressed disappointment that prosecutors have stopped short of charging Kuchma with murder. Instead, they have leveled the lesser charge of abuse of office in giving unlawful instructions to Interior Ministry officials, which subsequently led to Gongadze's killing.
The 10-year statute of limitations on those charges has already passed. If the court were to overrule the statute and then find Kuchma guilty, he could theoretically spend up to 12 years in prison. Such a step would make Kuchma, who ruled newly independent Ukraine from 1994-2005, one of only a few post-Soviet leaders to answer for crimes in a part of the world where corruption and government impunity are considered commonplace.
The decade-long history of the Gongadze case has left several significant bodies in its wake. In 2005, Yuriy Kravchenko, who served as interior minister at the time of the killing and was believed to have given the direct orders to kill Gongadze, died after sustaining two gunshot wounds to the head. The death was ruled a suicide.
In 2009, Interior Ministry General Eduard Fere, who was believed to have served as the intermediary between Kravchenko and Oleksiy Pukach, the police general whose three officers carried out the killing, died in a hospital after allegedly spending the previous six years in a coma. (Pukach is currently in jail awaiting trial.)
Yuriy Dagayev, a third Interior Ministry official with ties to the case, also died under suspicious circumstances. The deaths of Kravchenko, Fere, and Dagayev effectively eliminated the sole opportunity to back up Melnychenko's tapes with material witnesses who could corroborate each other's testimony.
Why Reopen The Case Now?
The sudden frisson in the long-dormant case has caused many to wonder: why now? A Ukrainian civil society group, the Democratic Initiatives Foundation, attempted to answer the question this week by presenting the results of a survey of 55 leading political scientists and lawyers.
Many of the respondents suggested the timing of the charges was an attempt to refute accusations from the West that the government is selective in its use of justice. (The charges were leveled the same day that one of the country most prominent politicians, Yulia Tymoshenko, was in Brussels delivering a speech on selective prosecutions in Ukraine.)
Others said returning to the sensational case was meant to distract ordinary Ukrainians from the country's growing economic problems. Still others suggested the Kuchma charges were a good way to intimidate his powerful son-in-law, billionaire Viktor Pinchuk, who controls several of Ukraine's most powerful television channels.
Yanukovych, who in 2002 was appointed Kuchma's prime minister, may now be looking to sever his ties with his former patron -- and yanking a few media holdings out of hostile hands while he's at it.
written by Daisy Sindelar, with reporting by Dmytro Shurkhalo and Dmytro Barkar in Kyiv
Against torture and ill-treatment
Another death following a visit to the police station
The Kharkiv Prosecutor Yevhen Popovych has reported that a Kharkiv resident has died in hospital after being at a regional police station.
“The man was summoned to the regional police department. Having left there independently, together with his friend, he ended up in the 4th Ambulance Hospital where he died. There are various versions. However that he visited a police station is a fact that nobody is denying”, Popovych stated at the briefing.
He added that there were signs indicating a violent cause of death.
He said that if that information was confirmed by the inquest, they would be initiating a criminal investigation.
All the officers involved in detaining the man are giving explanations to the Prosecutor’s Office, Popovych stated. He did not give any explanation as to why the man had been summoned to the police station.
It had previously been reported that a man had been found beaten in a park opposite the building of a Kharkiv Regional police station. In the hospital he died, according to preliminary reports, from blows.
It is not clear also when the death occurred. As reported here, on Wednesday representatives of the Kharkiv Human Rights Group reported an alarming increase in the number of deaths in police custody.
That same day Viktor Pshonka, the Prosecutor General told an extended meeting within the Prosecutor General’s Office that the problem of deaths in police custody was real, and that all such cases must be investigated.
As reported here many times, this has not been the case, with Prosecutor’s Offices regularly refusing to initiate criminal investigations even where the circumstances raise warranted concern.
The right to a fair trial
Tax Code Protest prosecutions reminiscent of 1937 cases
In a recent interview, lawyer for the Ukrainian Helsinki Human Rights Union, Oleh Levytsky spoke of the case which has taken up most of his time over the last months. This is the prosecutions brought against alleged participants in the small business owners’ protest on Maidan Nezalezhnosti [Independence Square] in Kyiv against the Tax Code in November and early December last year, some concessions were made but then the protesters’ tent camp was forcibly dismantled almost the next day. As well as one person remanded in custody for alleged damage to a car during the protest, there have also been arrests and a criminal investigation into alleged “deliberate damage to the State of more than 200 thousand UAH. (roughly 18 thousand Euro)”. The claim is that the accused drove metal pikes into the granite stone on Maidan.
Oleh Levytsky says that the case of the Tax Code Protesters’ Maidan is unique in his legal and bar lawyer practice. He notes that the regime has after 20 years of Ukraine’s existence as an independent entity ventured to concoct what is effectively a 1937-type case (1937 being the worst year of Stalin’s Terror). “For the first time in our history the regime has found a collection of down-and-outs and people who wanted to earn a few kopecks by holding a banner and has accused them of damaging granite covering. This is after the Party of the Regions itself in 2008 erected tents on Maidan, a fair number, if not the most in Maidan’s history, which can even be seen on photographs from the party’s official website.
Now they’ve collected up some innocent people and are stating to the whole world that they’ve found people who entered into a criminal conspiracy to damage the granite stone in the centre of a European capital.
I was shocked when these people were called criminals because they picketed after the Orange and Donetsk revolutions on Maidan. However somebody up there decided that they should be behind bars. The courts without a word remanded them in custody for a month or two, then extended this to 4 months. I told the first instance court that this was insane but nobody listened to me. It was only in the court of appeal that I was able to provide that they were committing a crime by keeping innocent people behind bars. I did nonetheless manage to convince the court and my clients are presently free. Overall there are 7 people charged: three involved in this case, and four who are innocent. When I decided to represent my client, I had no idea that the case was so absurd. Later I took on the defence of two others charged over it. This is probably a unique case where my client, a down-and-out, was released on an undertaking not to abscond. Something tells me that Ukrainian jurisprudence has not seen such a case before. On the one hand for the first time in Ukraine’s legal practice people are facing criminal prosecution for exercising their constitutional right to peaceful assembly. On the other, one can be please that a down-and-out is released on an undertaking not to leave when it’s not clear where. The Kyiv Court of Appeal ruling says “from the place he is staying”.
Freedom of expression
Joint statement by Kyiv Post journalists and owner Mohammad Zahoor
Kyiv Post owner Mohammad Zahoor and the editorial team have reached atentative agreement, which amicably resolves the situation surrounding the dismissal of Brian Bonner as chief editor of the Kyiv Post last Friday.
On Tuesday, Zahoor agreed to a proposal to return Bonner to the Kyiv Post as a member of a four-person editorial board, along with Katya Gorchinskaya, Roman Olearchyk, James Marson.
This temporary solution allows us to continue working as normal while we continue clarifying the details of a long-term solution and contracts.
Zahoor also agreed on a written pledge to the newsroom upholding non-interference in editorial policy by himself and his company.
The Kyiv Post newsroom and its owner remain committed to providing the hard-hitting, balanced and objective reporting that has been its most important quality over the past 16 years."
- Kyiv Post.
Zahoor said that, despite differences in opinion over this particular incident, he was impressed that the Kyiv Post staff had stood up so actively for something they believe in - freedom of the press.
Zahoor has been a consistent supporter of editorial independence since he acquired the Kyiv Post two years ago in what is a very testing environment for a media owner.
He has also proved his commitment to the development of a freer media environment by investing in the newspaper and a new Russian/Ukrainian website that aims to carry our long-standing high ethical and journalistic standards into the local languages.
The Kyiv Post newsroom and its owner remain committed to providing the hard-hitting, balanced and objective reporting that has been its most important quality over the past 16 years.
All parties are committed to improving the Kyiv Post and working toward making it profitable.
In this way, we will continue to serve the community by asking the same tough questions and searching for answers in the same way we always have, without fear of interference from outside the newsroom.
As before, we will be free from censorship, present a balanced view of events and always seek out the other side of the story. We are sure that this will help us to maintain what we have always valued above all - the trust of you, our reader.
Zahoor: Brian Bonner is to remain Editor of Kyiv Post
Brian Bonner is to be reinstated as Editor of Kyiv Post. An Editorial Board will be created made up of Bonner and three other editors. The newspaper’s owner, Mohammad Zahoor informed the press of this after meeting the newspaper’s staff.
It was Brian Bonner who brought Mr Zahoor to the meeting where the latter announced: “An Editorial Board will be created. Brian Bonner will be one of its members. This is in order to adhere to the principles of independent journalism”
The three other members of the Board will by Roman Olearchuk, Katya Gorchinskaya (presently the Deputy Chief Editor) and James Marson, Editor of the Business Section.
Mr Zahoor stated that the newspaper staff had been concerned about editorial independence without Brian Bonner. He stressed that democracy and freedom of speech had been and would remain sacred.
He called the conflict a misunderstanding and said that it was all in the past.
One of the Kyiv Post journalists, Yury Onyshkiv told Telekritika that this was a victory for both parties and that the conflict was resolved. The Editorial Board, he said, was to be created to ensure that there was no interference in editorial policy, and Mohammad Zahoor had assured the staff that there would be no interference from him.
Telekritika reports that according to their information, Mr Zahoor said during the meeting that if the team could by 1 September find the money to finance the newspaper, he would sell it to them for one dollar. This was in response to a question regarding whether he was planning to sell the newspaper.
As reported, on Friday the Chief Editor of the newspaper Kyiv Post, Brian Bonner, was dismissed by the owner of the newspaper, Mohammad Zahoor. The dismissal was apparently due to Mr Zahoor’s demand that an article be removed. “On the Hot Seat”, published in English and Ukrainian begins with the words: In Europe’s breadbasket, critics are talking about the ‘Great Grain Robbery.’ Agriculture Minister Mykola Prysyazhnyuk is under fire for state controls on grain exports that favor a controversial company, Khlib InvestBud. Speaking with the Kyiv Post, Prysyazhnyuk defended the actions.
The Chief Editor refused to remove the article and was dismissed. The editorial team announced that they were going on strike in support of the Chief Editor’s position.
Following an article in Kommersant – Ukraine claiming that the conflict had been resolved, the editorial team were forced to issue a statement stressing that this was not the case and that they were continuing to defend the Chief Editor and the newspaper’s editorial independence.
Congratulations to Brian Bonner and all the staff of Kyiv Post, and to Mohammad Zahoor for an excellent decision!
New information from Telekritika
Kyiv Post on strike: details
The Kyiv Post editorial staff is protesting interference in its tradition of independence journalism through owner Mohahammad Zahoor’s decision to fire chief editor Brian Bonner over publication of an interview with Agricultural Minister Mykola Prysyazhnyuk (vol. 16, issue 15, April 15, 2011, http://kyivpost.com/news/nation/detail/102436/).
Hereinafter, the Kyiv Post editorial staff announces a strike, demanding to reinstate Brian Bonner as Chief Editor. We will continue writing and editing our articles, but will post no news or layout the paper for print.
At the moment, the editorial staff has no access to the website.
Background, as the editorial staff knows it
On early April 15, after the newspaper had been sent to the printer, Zahoor called Bonner to say that the Kyiv Post will be liquidated if the newspaper published the interview conducted on April 11.
Zahoor asked Bonner to stop publication of the article online and in print in an hour-long telephone discussion that ended about 1:30 a.m. After considering the request, Bonner refused and notified Zahoor by SMS and email by 2:50 a.m. on April 15 that he would not participate in censorship of the Kyiv Post. He received no reply by morning.
Prysyazhnyuk granted an hour-long interview to two Kyiv Post journalists on April 11 but, according to Zahoor, immediately reconsidered and asked the Kyiv Post owner not to allow it to be published in the newspaper.
In discussions with Zahoor before the newspaper was published on the night of April 14, Zahoor discussed the article but never demanded that it should be withdrawn from publication.
Several telephone discussions took place, however, throughout the week between Zahoor and Bonner on the sensitivity of the article and its potentially harmful implications for the Kyiv Post and Zahoor’s company. Zahoor described Prysyazhnyuk as a “good friend”. Bonner assured Zahoor the article would be an accurate account of the interview conducted with the minister and the published article met those high standards.
At 11:35 p.m.on April 14, Zahoor emailed Bonner asking to see the article if it is in printing already. Bonner e-mailed the article. About 1 a.m., Zahoor telephoned Bonner and said that the article had been translated into Russian and sent to the minister, who, Zahoor said, reacted negatively. After much discussion, Zahoor then said the Kyiv Post would be liquidated by morning if the article was published in print or online.
Position of the editorial staff
Every newspaper owner has the right to define editorial policy and select the editor of his or her own choice, and everyone is certainly replaceable.
But the firing of Bonner, who has held the position for nearly three years, destroys the newspaper’s history of independent journalism, one of the founding principles of the organization in 1995.
This tradition of non-interference with what journalists write is something that Zahoor publicly pledged to uphold when he bought the newspaper nearly two years ago.
But the Kyiv Post staff is united by something more valuable: seeking a brighter future for Ukraine, one that includes respect for independent journalism, the cornerstone of any democratic society.
The action was preceded by warnings to Bonner dating back to June, from Zahoor’s representatives in the ISTIL Group, to tone down the news coverage of the Kyiv Post and to adopt a more supportive stance of President Viktor Yanukovych’s administration.
At the same time, however, ISTIL Group representatives including Zahoor have repeatedly praised the high-quality journalism of the Kyiv Post editorial team. They have also told Bonner that they agree with much of what is published in the newspaper – news and opinions. But they have said that such independent journalism potentially threatens the company’s other investments in real estate, media and other areas.
Numerous internal debates over these issues have taken place since June, with periodic attempts made to undermine editorial independence.
Zahoor even quashed preliminary talks by his subordinates last year to sell the newspaper to a high-ranking member of the Yanukovych administration. The talks were opened because of fears that independent journalism would prove to be a liability for ISTIL Group.
The issue is not about one newspaper, one chief editor, one article or any single person.
The Kyiv Post editorial team, as all independent journalists, has simply tried to do the best job possible of reporting and analyzing Ukraine’s news since its launch in 1995. All of us regret the circumstances that threaten the great tradition of journalistic excellence and independence/
Access to information
Appeal regarding proposed amendments to the Law on Access to Public Information
The Ukrainian Helsinki Human Rights Union and Kharkiv Human Rights Group have addressed an open appeal to Volodymyr Lytvyn, Speaker of the Verkhovna Rada, regarding the draft law introducing amendments to the recently adopted Law on Access to Public Information.
They call on Volodymyr Lytvyn to reject plans to introduce amendments to the Law on Access to Public Information since the changes would lead to a reduction in the scope of human rights and run counter to European standards.
“On 13 January 2011 the Verkhovna Rada passed the long-awaited Law on Access to Public Information which included most international standards pertaining to freedom of information. The Ukrainian public and the international community warmly welcomed the adoption of this law which demonstrated the commitment of the Ukrainian government to democratic values.
However without the law even having come into force, there are already proposals to consider a draft law introducing amendments which, in our view, would largely render this achievement meaningless.
The Council of Europe Convention on Access to Official Documents from 27 November 2008, the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, the Recommendations of the CE Committee of Ministers on Access to Official Documents from 21 February 2002 establish clear European standards on the public’s access to information.
The proposed amendments to the Law on Access to Public Information do not comply with these standards, at very least with regard to the following:
1. The norm would be removed guaranteeing access to public information regardless of whether the said information concerns the person asking for it. They are instead proposing to include a norm which would oblige the person requesting the information to indicate their reason for making the request. This runs counter to European standards which clearly state that a person requesting an official document does not need to explain the reason why he or she wishes access to the official document. These amendments breach the condition that all information about the authorities’ activities on open access must be provided regardless of whether it concerns the person or not.
2. The proposed amendments would remove the option of making an information request by email, fax, with the requests and responses received being allowed only in written form. This is despite the fact that in the present day sending emails is the most efficient, convenient and swiftest means for seeking and receiving information. Ensuring active access to information in this way in European countries is considered a priority in European countries.
3. Establishing the timeframe for providing a response to an information request to a month, with the possibility of this being extended to 45 days, is not in keeping with international standards and does not promote the enjoyment of the right to receive information via information requests. These timeframes are too long. Analysis of the laws in European countries shows that the average timeframe is 5-10 working days. In the given case reference to the Law on Citizens’ Appeals is untenable since the month period for responding to such appeals is determined by the fact that the relevant body must take certain action aimed at checking the information provided in the appeal and meeting it, whereas an information request requires only sending information about the activities of the authorities.
4. The exclusion is proposed of an important and generally accepted European guarantee providing people with disabilities with access to information. According to this guarantee if a person has a valid reason preventing them from filling out a written request, this can be done for them by the official responsible for answering information requests, with the official obliged to provide his or her name and contact number and give it to the person requesting the information.
Since the aim in adopting the Law on Access to Public Information was to ensure transparency and openness of those in authority and to create mechanisms enabling everybody to have access to public information, UHHRU and KHPG call on Volodymyr Lytvyn to not make the above-mentioned amendments which run counter to Ukraine’s Constitution, European standards and the interests of the Ukrainian public.
Retreat from Access?
Ukraine’s leaders call the opening up of access to public information the most important achievement in the area of freedom of speech both in dealings at international level, and during discussions at home with opponents asking questions about a worsening in the situation.
This, admittedly, is for the moment only at the level of adoption of a law which has not begun actually functioning. It is truly one of the very few successful precedents where the actions of the present regime in the information sphere have proven swift and effective compared with those of their predecessors and where they have heard and supported the initiatives of journalists, civic society and shown efficient cooperation.
The Law comes into force on 10 May. During the three months from when the document was passed, the authorities were supposed to have worked through all technical aspects linked with its implementation. During the same period members of civic organizations have prepared method guides explaining how certain norms should work.
Yet although the law has not begun working, it is already annoying a lot of people. And some have even set to correcting it.
According to information received, the Speaker of the Verkhovna Rada, Volodymyr Lytvyn has initiated work on amendments to the Law on Access to Public Information. The heads of the secretariats of parliamentary committees have worked on comments and suggestions. With the exception of the profile committee which has not been included in this work.
As a result Volodymyr Lytvy has signed and sent to the Head of the Committee on Freedom of Speech, Andriy Shevchenko all these changes asking him to read them and prepare the relevant amendments to the laws. The secretariat of one of the committees has even prepared “correct” amendments in a comparative table of “necessary amendments to the Law on Access to Public Information.
Lytyvn has not yet risked registering these amendments in his name and has suggested that the author of the law do this.
The scale of the proposed changes is staggering.
Whereas in the new Law there is a norm about a 5-day timeframe for responding to an information request, the suggestion is that the old timeframe – 30 days is retained. How adequate this is in a digital age does not need to be asked.
It is proposed that the restricted access category “Official information” encompass all information received “from others in authority, legal entities, associations of citizens”, with their list being determined by the body of power itself.
Moreover the explanation states that “it is physically, technically and legally impossible to provide the requested copy of a land plan on establishing borders which comes to 100 or more pages, around 10 cartographic materials which have been put in the brochure …” The example on how they plan not to provide information is thus provided from specifically that area where there are a fair number of corrupt schemes involving allocation of land by bodies of local self-government.
Virtually all progressive and new norms should, it is proposed, be simply excluded.
For example they would exclude the norm stating that “access to information about the use of public funding, the ownership, use or disposal of State-owned or municipal property, including to copies of documents separating parts off, the conditions for receiving funds or property, the first and last names of individuals or legal entities that received these funds or property may not be restricted”
This is explained as being that “this would paralyze the work at local level of departments of the Pension Fund, Social Protection, Justice, Land Resources, financial bodies, etc”. This is despite the fact that the law clearly envisages that specified individuals in each body are to responsible for providing information and any inundation of information requests would only affect them.
It is also proposed to remove the progressive innovation taken from European legislation of the three-tier test without which information cannot be classified, this being to compare the potential damage from the information being made public with the public interest in its circulation.
The bureaucrats are frightened that the concept of public interest is subjective and call it non-law-based. In fact the concept of safe distance between cars according to the Road Code is no less subjective, yet each day hundreds of thousands of lives depend on these legal concepts, yet the given legal concept works fine in practice.
They propose discarding the main mechanism for practical implementation of the law – the item regarding the creation of a special structural division which will organize access to public information. This means that the management mechanism will not work without specifying those who are responsible for this sector of work.
Besides exclusions, there are some curious and highly equivocal additions. For example: “decisions and actions of those seeking information aimed at complicating or discrediting the activities of those in possession of the information, the honour, dignity and business reputation of their officials and staff may be appealed against by those in possession of the information in court”.
Obviously everybody has the right to approach the court if they consider their rights to have been violated, yet what is the point of writing that into the law? In order to deflect the asker’s wish to criticize the management of the authority if the answer to the information request suddenly proves too open?
The law directly proposes referring to “preventing abuse of the right to receive and circulate public information, including with the aim of complicating or discrediting the activities of those in authority, their officials and staff”. As noted above, it is impossible to complicate the work of an institution through information requests since there is a separate section responsible for dealing with them.
The supplements also concern how the question must be put in the information request. It is proposed that information requests should indicate “the motives prompting the submission of the information request”. The lack of such an explanation can be grounds for turning down the request.
It is also proposed to defer the entry of the law until 1 January 2012.
All of the above have already been worked out and presented in a table of amendments to the Law on Access to Public Information. It cannot be excluded that some deputy or other will take it on themselves to register it and we will have a situation similar to that seen with the urgent cancellation of the anti-corruption package of laws from 2009.
Clearly the adoption of such amendments to the Law on Access to Public Information would negate any positive innovations in the document. The amendments would turn the law into an empty shell.
They could totally destroy all the positive elements which emerged in legislation thanks to a synergic fusion of journalists, civic organizations, representatives of the government and the opposition. This could destroy the trust and faith in the possibility of joint positive actions which emerged after the adoption of the Law.
These suggestions clearly demonstrate how much bureaucrats and some representatives of the regime fail to understand the principles of interaction between the government and the public in democratic countries. There is no basic understanding of how such a system can work and why the public have a full right to receive all information from the government which they elected and maintain.
Besides misunderstanding, there is also a lot of entirely clear desire to continue concealing those schemes which lie at the foundation of corruption among officials and those in power and which can be dragged out through open access to information.
If the declaration about fighting corruption from Viktor Yanukovych was not just hot air, these amendments can have no chance of finding support in the largest of the factions in power. Otherwise the level of trust in the regime will not simply fall, but could disappear altogether.
Freedom of peaceful assembly
Court bans – restriction of freedom of peaceful assembly or interference?
In their article, the authors note that last year human rights groups pointed to a serious increase in cases where the authorities interfered in the right of freedom of peaceful assembly. They analyzed court rulings in the Single State Register of Court Rulings in cases on restriction of the right to peaceful assembly over the last two years in order to establish how this constitutionally enshrined right was being protected. The results staggered them.
Number of cases
Comparison of the number of court rulings in 2010 as against previous years showed a significant increase in the number of applications from the authorities to the courts to have restrictions imposed on the right to peaceful assembly. This refers to applications to ban a rally, picket, demonstration etc or to impose certain restrictions. At the same time the percentage of rejections of such court applications fell considerably. It is interesting that in Kyiv during 2009 the Kyiv City State Administration lost more than one such case, while in 2010 the District Administrative Court allowed all such applications (according to data from the Single State Register of Court Rulings).
In banning the holding of peaceful gatherings, the courts most often perceive a threat to national security and public order in cases involving:
“untimely” or “inappropriate” notification of an event;
coincidence of time or place of peaceful gatherings;
the possibility of an adverse affect on the movement of traffic or pedestrians;
an epidemic state at the time of the planned mass event;
possible obstruction to the activities of a public body or body of local self-government;
the failure of the planned mass event to comply with local acts on the holding of mass events;
the holding in the stated place and time of official events of national or local significance;
the need to ensure the safety of high-ranking officials or foreign guests, etc.
Specific examples of typical court rulings
Failure to provide “proper” notification
According to Article 39 of the Constitution, executive bodies or bodies of local self-government should be notified in advance if a peaceful gathering is to be held.
In deciding whether to establish restrictions on exercising the right to peaceful assembly, the courts sometimes resort to an assessment of the “timeliness” or “fullness” of the notification of the authorities of a planned peaceful gathering by its organizers.
For example, the Sevastopol District Administrative Court in a ruling from 22 May 2010 No. 9650806 came to the conclusion that “the respondent informed the Leninsky District State Administration of Sevastopol of the plan to hold a picket three days before the event which deprives the claimant, as a public body, of the possibility of carrying out all necessary measures for preparing for the holding of the given picket”. The court cited the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 «On the procedure for the organization of meetings, political rallies, street events and demonstrations in the USSR” which “is in force at the present time” and envisages the submission of an application no later than 10 days before the event. The court also stated that in the notification “the timeframe, purpose, form, place of holding and number of participants in the picket are not indicated” which does not comply with the Decree of the Presidium of the Supreme Soviet of the USSR. “Infringement of the rules of procedure for organizing a picket” is deemed grounds for its ban.
The Crimean District Administrative Court had a different view when in its ruling from 2 July 2010, No. 10701594, it concluded that notification the day before an event “gives the opportunity for the public body to take measures to ensure public order”, thus finding that the respondents had notified in advance that a rally was to be held.
In some regions, the local councils have passed local legal acts (regulations) on the procedure for holding peaceful gatherings. These usually stipulate the procedure for registering a notification, the information which this should contain, and sometimes also a list of places where mass events may be held. For example, in Kherson it is in this way stated that when holding lengthy protests, the notification must state how rubbish will be taken away. Some courts use such local acts supposedly passed as part of the powers of the relevant council. For example, the Kherson District Administrative Court in its ruling of 8 October 2010 No. 11636833 banned a picket “in the interests of public order” and in order to “prevent riots and protest the rights and freedoms of citizens and others” since “in violation of the norms envisaged by Regulations No. 1140 the respondent did not stipulate in their application the methods and forms for ensuring that rubbish was cleared and other measures for avoiding infringements of the Rules for the city’s upkeep and providing bio-toilets which make it impossible to hold long-term events”.
Some courts in our view correctly indicate that these acts restrict the scope of citizens’ constitutional right to peaceful assembly by establishing artificial conditions which people need to fulfil in order to exercise this right and bans on the holding of meetings in different parts of a populated area (see, for example, the above-mentioned ruling of the Crimean District Administrative Court).
In our view, “untimely” notification or failure to provide “proper” notification, and even lack of notification of the authorities by the organizers of a peaceful gathering cannot be grounds for banning such an event at all. After all a gathering as long as it is peaceful and does not violate people’s rights cannot be considered unlawful. Notification serves to guarantee the exercising of the right to peaceful assembly and imposes on the relevant authorities the obligation to carry out “preparatory measures”, for example to ensure the unobstructed holding by members of the public of gatherings, rallies, marches or demonstrations, maintenance of public order, protection of the rights and freedoms of other people” (from a judgement of the Constitutional Court on a case regarding advance notification of peaceful gatherings from 19 April 2001).
This position is supported by the Venice Commission which considers that the authorities should ensure proper security, medical services and clearing up at mass events.
However the holding of a peaceful gathering without notification or without proper notification does not in itself jeopardize national security or public order, as does not the fact that people gather in a theatre or exhibition, or go in large numbers on public transport, or simply meet in a group in order to celebrate some event. This simply absolves the authorities of the duty to ensure more favourable conditions in advance for the holding of the peaceful event (for example, restricting traffic in the relevant place, erecting bio-toilets, etc).
“Inadmissibility” of simultaneous events
If two or more organizers notify an authority of separate, often opposite purposes for measures schedule for the same place and time, the courts also resort to establishing restriction on the right to peaceful assembly. In practice two forms of such restrictions are seen: most often all applicants have their mass events prohibited (for example, the ruling of the Kyiv District Administrative Court from 13 October 2009 No. 9204905. Somewhat less frequently, preference is given to those who first submitted notification (for example the ruling of the Kherson District Administrative Court from 9 September 2010, №11350351).
In the first instance the courts often cite the provisions of the Law on Associations of Citizens according to which all associations are equal before the law, while the courts which give preference to those who notified first usually refer to local subordinate acts, and sometimes to the principle of “reasonableness”.
Such practice encourages the authorities in obstructing peaceful gatherings. Some of them manage to prepare notification in advance from a puppet organization and when the notification from an “undesirable” organizer is received, the same time and place are added to the puppet organization’s notification and it is registered earlier.
The courts similarly ban peaceful gatherings if in the place announced measures of national or local significance such as ceremonies, concerts, visits by foreign delegations, etc, are planned. For example, establishing restrictions on the right to peaceful assembly “for the purpose of protecting national interests”, the Kyiv District Administrative Court in its ruling from 5 October 2010, No. 124703183, concluded that the holding of a peaceful event “may lead to the cancellation of the visit by the delegation of the planned locations and as a result cancellation of the official visit of the President of Slovakia, which could lead to a deterioration in the relations between the countries”.
Incidentally the stamp regarding the possibility of “deterioration in the relations between the countries” is not used for the first time by the capital’s District Administrative Court. In its ruling from 8 July 2010, No. 1170554 it managed to apply this to the visit by the President of the European Council, Herman Van Rompej, although the European Union is not a country.
This court has demonstrated unexpected concern over participants in peaceful gatherings. It banned several gatherings in the centre of Kyiv due to the visit by the US State Secretary Hillary Clinton whose official visit schedule envisaged visits to places where by coincidence rallies were planned. However the court justified this on the grounds that “the participants in such events could be subjected to danger from the actions of the law enforcement bodies” (resolution from 1 July 2010, No. 10203964). It would seem that Ukrainian law enforcement bodies during the period of official visits of foreign guests pose a danger to people.
No less inventive was the court which banned the holding of peaceful gatherings in connection with the fact that “the holding of the relevant mass events near the President’s Administration will adversely affect the image of Ukraine’s capital which will cause a negative impression of high-ranking officials of foreign countries about the country as a whole” (Ruling of the Kyiv District Administrative Court from 21 October 2010, No. 11803531).
However the holding of peaceful gatherings and official events or simultaneous peaceful gatherings, even where these are by organizations with opposite views, in our opinion, do not in themselves give grounds for asserting that there is a danger to national security or public order. If one agrees with the position of the courts, then you can assume that any people holding opposite interests are offenders and their meeting jeopardizes public order, while a rally in the view of foreign guests is a threat to national security due to a worsening in diplomatic relations. It is therefore expedient to follow the position of the Venice Commission which considers that simultaneous (including counter-demonstrations) and spontaneous peaceful gatherings should be permitted by law. The task is for the authorities to ensure safety during such events.
“Incapability” of the authorities
There are cases when the courts agree with the arguments of the claimants that the holding of a peaceful gathering involves the need to deploy additional police units in the area where the event is to be held. This can promote the committing of offences in other districts of the city, and thus create a threat to public order. Effectively in such cases the courts state that the police are incapable of carrying out their main duty in safeguarding law and order.
At the same time we should point out positive examples in resolving this issue. For example, in the ruling of the Lviv District Administrative Court from 18 September 2009, №5820746 it is stated that “”the assertion of the claimant that the Executive Committee of the Lviv City Council and the Lvivi City Department of Police in the Lviv Region will not be able to ensure the proper security for participants in the protest and maintenance of public order is not taken into consideration. In accordance with the requirements of Article 2 of the Law on the Police, one of the main tasks of the police is the protection and safeguarding of public order. Effectively from the explanations of the claimant’s representative one sees that the court is being asked to take a decision aimed at ensuring public order which is not the task of the court. The task of the court is to protect the rights, freedoms and interests of individuals and the rights and interests of legal entities in the area of public-legal relations… the non-enforcement or failure to properly carry out their duty as envisaged by law cannot be grounds for restricting the constitutional rights of others. The failure by the relevant individuals to carry out their duties, including with respect to ensuring the safety of actions and maintenance of public order, carries with it liability envisaged by law.”
The position also seems dubious of those courts which ban peaceful gatherings due to their possible impact on the movement of traffic or pedestrians. It is once again the task of the authorities, mainly the police to ensure that people do not go out onto the road or restrict the movement of traffic during the event by providing detours.
It is no less surprising when the courts ban the holding of pickets and rallies outside public bodies since that will supposedly obstruct the activities of the said body. An example of such a ban is the ruling of the Dnipropetrovsk District Administrative Court from 20 March 2009, № 3643859: «In the view of the court, the erection of a tent camp for 2000 participants in the indefinite protest near the administrative building of the Kryvy Rih City Council will obstruct the carrying out of the ordinary work of the bodies of local self-government of the territorial community of the city of Kryvy Rih”. What is involved here is effectively a ban on citizens freely expressing their opinion regarding the work of those bodies and the creation of an artificial barrier against dialogue between the authorities and the public.
Court practice on peaceful gatherings in Ukraine bears no relation, in our opinion, to European standards in the human rights field. Unfortunately, in connection with the changing relations regarding exercise of the right to peaceful assembly, court rulings are not often appealed against in higher level courts therefore court practice is not standardized. There are no explanations on such issues from the High Administrative Court. This is exacerbated by the lack of a special law complying with international standards and the idea that a gathering while it is peaceful cannot be unlawful.
In examination of court cases of this category, in our opinion, it would be expedient to work on the assumption that a peaceful gathering is lawful. The authorities should convincingly prove that the restrictions which they are proposing correspond to the criteria of being “necessary in a democratic society”, stipulated by the European Convention on Human Rights. The courts should in their rulings give a fair assessment of those arguments and where they allow the application should only apply those restrictions which are proportionate to the following of a constitutional object, that is, interfering as little as possible with freedom of peaceful assembly.
Roman Kuybida, Deputy Head of the Board of the Centre for Political and Legal Reform
Mykola Sereda, Student of the Law Faculty of the Kyiv National University
Social and economic rights
National Deputy of Ukraine: cost effective?
Ukraine’s Parliament is implementing some of the most stringent social and economic reforms in the country’s history, yet at the same time sees fit to increase the annual maintenance allowance for each Deputy to 700, 000 UAH – at Ukrainian citizens’ expense.
Ukraine is characterized by one of the highest international debts in Europe, a rapid growth of inflation and an unrelenting decline of the population's well-being and social-security. Nevertheless, the general budget of Verkhovna Rada was recently set at 980 million UAH - a 170 million UAH increase from 2010. The government has increased its allowance for travel expenses (from 7 to 9.5 million UAH) as well as the vacation budget, with 9 thousand UAH allotted to each Deputy for health resort treatment – the equivalent of six months living expenses for nearly 50% of Ukrainians.
It is worth noting that whilst their official salary is set at 17 thousand UAH (the average salary in Ukraine is under 2, 500 UAH) Deputies receive at least that amount again, every month, for ‘working expenses’ without any requirement to declare how the money was spent. One might question whether Deputies really need such a comparatively large salary. It is no secret that the primary appeal of becoming a people’s Deputy in Ukraine is either to protect personal business interests, or to act as an oligarchical proxy. For example Ukrainian Deputies Akhmetov, Zhevago and Verevskyi are named among the richest people on the planet by Forbes Magazine, with fortunes accounting for 16, 2.4 and 1.1 billion US dollars respectively. Whilst Ukraine continues to suffer some of the worst social and economic performance in Europe, Deputies show no desire to follow the example of the European Parliament, which froze expenses in 2010 in sympathy for the population suffering from economic crisis. However, in March the European Parliament increased legislators' expenses for assistants by 17, 800 Euro for each Deputy, which brought ordinary Europeans out onto the streets. For how long will Ukrainians be willing to fund the whims of their elected representatives?
People First Comment: Forbes magazine has named three Ukrainian deputies as being amongst the richest people on the planet with a combined personal fortune in excess of $19.5 billion. One of these three has been conspicuous by his absence from the Rada for most of the current convocation. Therefore one has to ask firstly why such wealthy individuals should be paid so much relative to the national salary level for their services and secondly what value they deliver to the nation to warrant such a salary. In the Soviet era there was always confusion over price and value. In the Russian language the same word is used for both as it was assumed that you got what you paid for. Warren Buffet’s description is more applicable ‘price is what you pay whilst value is what you get’. In this case it is fair to say that the people are paying too much and getting too little.
The profligacy of the current government belies an underlying contempt for the nation. They cut budget allocations for state salaries, social protection, healthcare and education by just enough to make sure that the people do not rebel whilst at the same time they increase spending on areas of personal enrichment and aggrandisement. This indicates that they have no morality, no concern for the public good and no intention of expanding the total wealth of the nation unless they have a direct interest. Ukraine has developed over the past 20 years not into a functioning democracy but from a fledgling democracy into a classic Oligarchy and if it remains unchecked it can only get worse as the protagonists fight it out for ultimate control.
Refined torment of miners
Curious information has been posted on the website of the Luhansk Territorial Division of the State Mining Inspectorate. The text is titled: Miners infringing safety rules in the Luhansk region are given identifying jackets and sent to work clearing the territory”. It states that at the Duvannaya Mine (Krasnodonugol) the administration has officially introduced new disciplinary penalties for workers. An orange jacket with the words on the back “I am an offender” plus compulsory work will now, according to the mine management notion, be a good educational method for negligent workers.
In fact this practice is not new. There are various forms of stigmatizing different types of “offenders” – from run-away slaves and criminals to Jews in Hitler’s Germany and unfaithful wives in modern Iran used to “mark them out” as a lesson to others. From a brand mark burned on the forehead and being caked in tar to a Star of David on the back and stoning in the public square. In the Soviet Union they were also experts at stigmatizing “parasites” and other “renegades”.
I don’t doubt that the “new order” (Neue Ordnung) at the Duvannaya Mine will bring the employers the desired effect: discipline will improve and profits increase. And if this marvellous initiative is taken as part of a “capitalist competition” around the entire country, just wait, the budget deficit will fall.
Only what about the social and moral costs of such inhuman practice? After all in any case (whether in a society with slave-owners or today), such torment-like treatment shows that archaic attitudes about human beings are refusing to die, with the individual’s freedom, dignity and rights stripped of their absolute value and free to be sacrificed by the authorities either for the sake of collective interests or to please some petty tyrant boss.
La Strada: The Government is destroying anti-human trafficking policy
The International Women’s Human Rights Centre La Strada – Ukraine has issued a statement expressing concern and outrage over the total destruction of the system for implementing State policy on combating human trafficking.
The statement explains that the administrative reforms of December 2010 resulted in a restructuring of central bodies and their regional divisions. However important branches of governance in the social sphere were both then and during the subsequent months ignored.
As of the end of April 2011 no central body has been assigned duties with respect to countering and preventing human trafficking and providing assistance to trafficking victims. There are no relevant provisions in the list of duties of the Ministry of Internal Affairs, the Ministry for Social Policy, nor the Ministry of Education, Science, Youth and Sport. The latter is stipulated as responsible for implementing the Cooperation Plan on Countering Human Trafficking signed on 15 February 2011 between the Governments of the USA and Ukraine
This will meant that human trafficking will not be combated at the regional and local level since there is no structure responsible for coordinating action, and for enforcing a national mechanism for referring trafficking victims for comprehensive assistance and carrying out preventive work.
La Strada – Ukraine points out that the government is showing such disregard despite the immediacy of the problem, the appearance of new forms of human trafficking and increase in the number of cases of internal trafficking. It stresses that this attitude is against a background of increased wish to emigrate and therefore danger that people will fall victim to human traffickers. There is no let up in the number of cases of commercial sexual exploitation of children, and even an increase in the number of such proposals on the Internet.
According to International Organization for Migration (IOM) figures, in 2010 reintegration assistance was provided in Ukraine to 1.085 trafficking victims – 693 women and 392 men.
Ukraine has recently been gaining the features of a transit country for people from other countries who are sold into labour or sexual explanation, as well as a destination country.
The issue of combating human trafficking was not considered once during 2010 and the first half of 2011 by the Inter-Departmental Council on the Family, Gender Equality, Demographic Development and Countering Human Trafficking.
Despite the obligations declared almost a year ago in the State Programme for Social and Economic Development, there has still been no adoption of the comprehensive Law on Combating Human Trafficking drawn up by the Ministry for the Family, Youth and Sport together with international and civic organizations according to the Timetable for Reform “International Integration and Cooperation” linked to the President’s Programme of Economic Reforms as one of the main conditions for a visa-free regime between Ukraine and the EU.
The State Programme on Combating Human Trafficking from 2011 to 2015 has not been passed, nor the programme for supporting the family and promoting gender equality in society.
In jeopardy is also the Cooperation Plan on Countering Human Trafficking between the Governments of the USA and Ukraine according to which each country takes on commitments to carry out active measures aimed at fighting trafficking. At local level there is total disorientation in the Departments of the Family and Youth which had been charged with the coordination of this work.
Despite numerous appeals from the public stressing the need to not only retain, but also develop mechanisms for ensuring gender equality, implementing family policy and gender equality policy, the role of the Department on Family and Gender Equality within the former Ministry on the Family, Youth and Sport remains unclear.
La Strada Ukraine reminds those high-ranking officials responsible for destroying these vital institutions and action aimed at combating human trafficking, that they must answer for their actions both before the Ukrainian public and the international community. There are, after all, international conventions which Ukraine is signatory to. In September 2010 the President signed the Council of Europe Convention on Measures against Human Trafficking ratified by the Verkhovna Rada. This document has now become a part of Ukraine’s legislation.
European choice and the values of democracy, rule of law and human rights are declared only in words, not in deed.
The dismantling of activities on fighting human trafficking is taking place against the background of a serious deterioration in the situation with women’s rights in Ukraine, demonstrated by the discriminatory and sexist utterances of the country’s leaders, the adoption of knowingly discriminatory normative documents, the planned pension reforms, and the already passed adoption of a new Tax Code. Women are deprived of access to decision-making, participation in State governance, etc.
La Strada Ukraine insists that urgent and radical changes are vital, as well as careful attention to issues regarding human trafficking, ensuring gender equality, and reminds the authorities that human rights and their infringements are no internal matter.
- That changes be made and introduced as a matter of urgency to the provisions on central bodies of power which specify the body authorized to address issues regarding combating human trafficking;
- That the State Programme on Combating Human Trafficking from 2011 to 2015 be reworked and adopted.
- That the Law on Combating Human Trafficking be adopted.
- That the work of coordinating structures (an Inter-departmental council) be reinstated on countering human trafficking.
- That consultations be held with civic and international organizations.
- That an action plan be drawn up and adopted on measures to implement the provisions of the Council of Europe Convention on Measures against Human Trafficking.
La Strada is also calling on international organizations, the Monitoring Committee of the Equal Opportunities Commission of the Parliamentary Assembly of the Council of Europe and to GRETA to carrying out monitoring on Ukraine’s actions on countering human trafficking and ensuring equal opportunities for men and women.
The right to health care
Real improvement n Ukraine’s Drug Police or another Show?
A sharp increase in the number of drug addicts and people with HIV in Ukraine is the result of ineffective and repressive drug policy, the authors of this work state. Instead of fighting drug trafficking, they say, the law enforcement bodies fight drug addicts, whereas drug addiction needs to be addressed by those involved in healthcare, not the police.
The government does not want to recognize that the logic of total prohibition has not worked anywhere with the war against drugs not won anywhere. The authors point to positive experience from the UK, Germany, France and other countries showing that harm-reduction programmes are much more effective than the actual war against drugs.
In Ukraine attempts to resolve the problem have largely boiled down to removing narcotic substances, chasing statistical readings and creating the appearance of effective measures against the drug trade. Yet a comprehensive approach is needed, with a shift towards seeing drug addicts as people who are ill and reforms in the law enforcement and medical spheres. Only an effective system for preventing the spread of drug addition and social rehabilitation of people taking drugs, combined with the decriminalization of certain actions linked with the illegal drug trade, can address the problem. Excessive criminalization of drug addition is the main failing of the present drug policy in the country.
Ukraine’s drug policy is also marred by corruption and lobbying, as a result of which more and more young people are becoming addicts with the number of young people using both legal and illegal drugs on the increase.
The State is not providing proper assistance to addicts, nor effective measures aimed at circulating objective information about drugs and the risks they carry.
The existing concept for fighting the illegal drug trade is based on their users with the number remaining roughly constant, meaning stable profits for drug dealers.
General world experience of the fight against drugs over many years shows that its effectiveness is close to nil and the correlation between the severity of prosecution and demand for illegal drugs minimal. The US has some of the strictest anti-drug legislation in the world, yet a high level of drug use, while Holland which is known for its liberal drug policy has a low level thanks to a high level of public awareness of the harm it causes.
Excessive criminalization of drug addiction results in a lack of reliable data regarding the real number of addicts and HIV-positive people in Ukraine, and scale of the drug trade. Official medical and police statistics are far from an accurate reflection of the situation. This means that the bodies called upon to monitor the situation do not have a real picture of the trade and use of illicit drugs.
At present 80% of drug-linked criminal investigations are under Article 309 § 1 of the Criminal Code which basically entails criminal prosecution for individual use of psycho-active substances. A huge number of people are held in places of confinement for offences which do not cause the public real harm.
The system for fighting drugs in Ukraine is extremely expensive, yet is not functioning and needs urgent reform. Taxes must not be aimed at funding drug corruption and systems of extortion like that flourishing under the guise of the fight against drug-related crimes in the Ministry of Internal Affairs, but at treatment of addicts and promoting a healthy lifestyle.
On 13 April 2011 the Presidential Decree No. 457/2011 came into force. This creates, in accordance with Article 106 of the Constitution, a State Drug Control Service [SDCS] as a central body of executive power with its activities being directed and coordinated by the Cabinet of Ministers .
According to the Decree, the State Drug Control Service takes over the role of two departments – the State Committee on Drug Control and the State Service for Medicines and Drug Control as regards sale of drugs, psychotropic substances and precursors in healthcare establishments and production of medical supplies, as well as the licensing of economic activity involving the sale of drugs, psychotropic substances and precursors in healthcare establishments and production of medical supplies.
Concentration within one State body of the functions linked with all aspects of the State’s drug policy is, from the point of view of swift response to its negative features, is undoubtedly a positive factor.
This becomes the main body for formulating and implementing the State’s drug policy.
The Provisions on the State Drug Control Service, affirmed by the Decree, give it the following functions:
formulating and implementing the State’s policy on the sale of drugs, psychotropic substances and precursors and countering their illegal sale within the confines of its powers;
carrying out State regulation and control over the sale of drugs, psychotropic substances and precursors and measures to counter their illegal sale within the confines of its powers;
coordination of the activities of executive bodies in the sphere of sale of drugs, psychotropic substances and precursors and measures to counter their illegal sale within the confines of its powers;
ensuring in accordance with international agreements cooperation and sharing of information with international organizations and the competent bodies of foreign countries in the area of sale of drugs, psychotropic substances and precursors and measures to counter their illegal sale, as well as representing Ukraine’s interests in this area in international organizations;
The Provisions do overall create the impression that the Ukrainian authorities are willing for positive changes to the country’s present drug policy which are aimed at countering the spread of drug addiction and relative adverse factors.
A number of functions are assigned to the SDCS which could promote an improvement in the drug situation through predicting its development, cooperation with the media and public, with NGOs of foreign countries and international organizations, etc. Implementation of the new norms would seem at first glance to open the door to an improvement in present drug policy, in particular through decriminalization of actions linked with personal drug use and the creation of unfavourable conditions for the drug trade.
On closer inspection of the Decree, however, the latest deception becomes clear regarding the prospects for the effective functioning of the SDCS. Item 3 of the Decree instructs the Cabinet of Ministers to submit a draft Law on the State Drug Control Service which will envisage the following inappropriate tasks for such a body:
carrying out investigative operations in order to identify crimes in the area of illicit sale of drugs, psychotropic substances and precursors; legalization (laundering) of income received from criminal activities linked with illicit sale and persons who committed such crimes;
identifying, preventing, stopping and uncovering, detective inquiry and pre-trial investigation on cases involving crimes in the area of illicit sale of drugs, psychotropic substances and precursors; legalization (laundering) of income received from criminal activities linked with illicit sale of drugs, psychotropic substances and precursors;
proceedings in cases on administrative offences in the area of sale of drugs, psychotropic substances and precursors.
This norm of the Decree from the outset makes it impossible to implement the Provisions affirmed by the same Decree, runs counter to current legislation, leads to inappropriate tasks as specified by this norm not in keeping with the main purpose of a central body charged with forming and implementing drug policy, its functions, powers and rights as stipulated by the Provisions.
Should the above-mentioned tasks be fixed at legislative level, the newly created body will be transformed into a law enforcement body as well. That is, it should form and ensure the implementation of the dug policy and at the same time take part in investigative operations, be a body of detective inquiry and pre-trial criminal investigation. This combination of powers, should assessment of the activities be based on statistical figures will inevitably lead to systemic abuse and human rights violations.
Giving such tasks to the newly-created body will also contradict current legislation.
According to the President’s Decree, the SDCS takes on the powers of two bodies - the State Committee on Drug Control and the State Service for Medicines and Drug Control. These bodies are not classified as bodies carrying out investigative operations as per Article 5 of the Law on Investigative Operations. The same norm of that Law prohibits those not stipulated by the Law from carrying out investigative operations.
According to Article 3 of the Law on Measures for countering the illicit sale of drugs, psychotropic substances and precursors, and abuse of them, the body empowered by the law to carry out control over the sale of drugs, psychotropic substances and precursors, and to resolve tasks linked with countering their illicit trade, should infringements be identified apply the relevant measures within the framework of their competence to remove such infringements. Should there be elements of an administrative offence or crime in people’s actions, they are obliged to send information or submit material to the relevant law enforcement bodies involved in fighting the illicit sale of drugs, psychotropic substances and precursors.
The duty regarding identification of the reasons and conditions which led to the crime, according to Article 23 of the Criminal Procedure Code is imposed on bodies of detective inquiry, the criminal investigator, Prosecutor in carrying out detective inquiry, pre-trial investigation and court examination of criminal cases. In Article 101 of the Criminal Procedure Code there is an exhaustive list of who is defined as a detective inquiry body. The State Committee on Drug Control and the State Service for Medicines and Drug Control which the SDCS is the successor to are not in this list. Article 102 of the Criminal Procedure Code only lists as pre-trial investigation bodies the Prosecutor, investigative bodies of the Ministry of Internal Affairs, investigators of the tax police and Security Service investigative bodies.
Thus in order for the State Drug Control Service to carry out the functions envisaged by Item 3 of the President’s Decree, amendments are needed to a number of legislative acts.
However the above-mentioned discrepancies can be eliminated by making amendments to current legislation as a result of which the transformation of the State Drug Control Service into a law enforcement body will negative the essential identify envisaged by the Provisions approved by Presidential Decree, and minimize the prospects for an improvement in the drug policy situation in Ukraine through the decriminalization of actions linked with the personal use of drugs and creating conditions which are unfavourable for drug trafficking.
In conclusion, it should be noted that the inability of the State to provide high-quality normative-legal provisions for implementing State policy on drug trafficking, prevention of the spread of drug addiction demonstrates that an improvement in the situation in the country cannot be expected in the near future.
Abridged from the original in Ukrainian at http://helsinki.org.ua/index.php?id=1303290869
Human rights protection
Ukrainian Helsinki Human Rights Union now has 30 member organizations
The UHHRU is pleased to welcome a new member of the Union – the Postup [Progress] Human Rights Centre in Luhansk. The organization seeks to provide comprehensive defence of human rights and promote human rights awareness in Ukraine. The Head of Postup, Kostyantyn Reutsky spoke about his organization and its plans.
He explained that they believe that the human rights community in Ukraine needs to consolidate and that UHHRU is one of the most successful examples of such consolidation. He stresses that they had previously cooperated with UHHRU members and believe that formalizing their relations will be mutually beneficial.
Plans for the near future
“Nothing radical will change and we will continue to address the problems of children from groups at risk. We are planning this year and next to carry out monitoring of the situation regarding violence against children from high-risk groups by law enforcement officers. The work of child human rights advice centres will continue, as will our partner participation in the programme “We understand human rights” and development of a network of human rights activists (Internet resource).
Another priority for us is defence of journalists’ rights and the assault on freedom of speech. This year we initiated and are supporting a public campaign against censorship in order to get the Law on the Protection of Public Morality revoked.
We are also beginning to gather information regarding pressure on journalists and regional media outlets I think that with time this will be made a separate area of our work.
We have also been a regional partner since 2007 of the Human Rights Documentary Film Festival Docudays.Ua. We would very much like this year to show the opening film of the Festival “The Other Chelsea” in Luhansk since this is a highly striking film which is important and vital for our region”.
Postup has its own website at: http://postup.lg.ua/
The Ukrainian Helsinki Human Rights Union is the largest association of human rights NGOs in Ukraine. It aims to promote practical implementation of the humanitarian articles of the 1975 Final Act of the Conference on Security and Co-operation in Europe (OSCE) and other international legal documents adopted for its development, as well as all Ukraine’s human rights obligations.