“Prava Ludiny” (human rights) monthly bulletin, 2011, #08

The exhaustive list of grounds for applying any restraint measures, including remand in custody, is provided in Article 148 of the Criminal Procedure Code [CPC].  With regard to the defendant this is sufficient grounds for believing that s/he will avoid either the court or carrying out procedural decisions; obstruct the establishment of the truth in the case; or continue criminal activities.

Pursuant to Article 17 of the Law on Enforcing European Court of Human Rights Judgements and Case-Law, courts shall use the European Convention on Human Rights [the Convention] and European Court of Human Rights Case-Law as a source of law.  Article 5 § 1 of the Convention provides an exhaustive list of grounds for depriving a person of their liberty during criminal proceedings.

In the Ruling of the Pechersky District Court  from 5 August 2011, with Judge R.V. Kireyev presiding, it is stated that the defendant, Yulia Tymoshenko  systematically breaches order at the hearings, does not obey the instructions of the presiding Judge and in her words and explanations demonstrates contempt for the parties to the court examination and to the court; that she has deliberately dragged out the examination of the case; carries out actions during the court hearings which attempt to obstruct the establishing of the truth in the case, for example, obstructs the questioning of witnesses. From the test of the motivation part of the ruling it follows that in the court’s view, the defendant systematically carries out acts during the court hearings which effectively obstruct the establishing of the truth in the case; treats the court and parties to the court trial with disrespect; violates the order for examination of the case; and it is also stated that she refused to inform of the address where she is living; refused to sign a statement confirming that she had been informed of the date, time and place of the next court hearing; did not appear at the court hearing at the time set by the court and refused to inform of the reason for her non-appearance.

Of all the grounds given in the ruling for changing the measure of restraint against Yulia Tymoshenko, only obstruction of the establishing of the truth in the case is envisaged by Article 148 of the CPC.  As the form of obstructing the establishing of the truth in the case, the ruling mentions the defendant’s actions during the court hearing, particularly obstructing the questioning of witnesses.

Obstruction of the exercise of justice both in domestic court practice, and in European Court case-law is understood as destroying or damaging evidence in a case, exerting pressure on witnesses etc, for example in the cases of Letellier v. France  (№12369.86, from 26.06.1991, §39),   W. v. Switzerland (№14379/88, from 26.01.1993 §36),  I.A. v. France  (№28213/95, from  23.09.1998 §110), and later Kauczor v. Poland (№45219/06, from 03.02.2009 §46) and Aleksandr Makarov v. Russia (15217/07, from  12.03.2009 §129). The court ruling does not involve such forms of obstructing the establishing of truth.

The grounds for change of measure of restraint stated by the court, namely obstructing the establishing of the truth in the case by obstructing the questioning of witnesses is clearly artificial since according to Article 260 of the CPC, the presiding judge is in charge of the court hearing and other parties are deprived of the opportunity during the court examination of in any way influencing its course, including by obstructing the questioning of witnesses, both those in the list of people summoned as witnesses, and those who are to be questioned on the decision (ruling) of the court.

With regard to the stated demonstration by defendant Yulia Tymoshenko of contempt of court (failure to obey the presiding judge’s instructions; demonstration of disrespect for the court and other parties to the trial and so forth), this behaviour, even if was such, going by Article 148 § 2 of the CPC, is under no circumstances grounds for applying, and therefore for changing any measure of restraint, especially in the form of remand in custody. Therefore the justification in the ruling for change of measure of restraint does not comply with Ukraine’s legislation.

Improper behaviour by a party in a court hearing cannot constitute grounds for applying the administrative penalty under Article 185 of the Code of Administrative Offences [CAO], of a fine of up to 15 days administrative arrest. Thus since the measure of restraint against Yulia Tymoshenko was changed to remand in custody, including for demonstrating contempt for the court and other parties to the trial, the justification for change of measure of restraint bears the marks of application of a legal sanction against the defendant for her improper behaviour.  Pursuant to Article 148 § 1 of the CPC measures of restraint are applied to prevent the defendant trying to avoid the court;  obstruct the establishment of the truth in the case; or continue criminal activities; as well as to ensure implementation of procedural decisions.  The effective aim of the change of measure of restraint does not therefore comply with Ukraine’s legislation.

Article 5 § 1 c) of the Convention envisages “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

The aim therefore of changing the measure of restraint against Yulia Tymoshenko does not comply with the provisions of the Convention. According to European Court case-law depriving a person of their liberty for purposes not set out in Article 5 § 1 of the Convention are a violation of the Convention (for example in the case of Osipenko v. Ukraine, № 4634/04, from 09.11.2010.  Perhaps, on condition of using administrative arrest of the defendant under Article 185 of the CAO, the court would have acted in accordance with the provisions of Article 5 § 1 (a) and (b) of the Convention.

Reference in the ruling to the defendant having refused to inform of the address where she is living; refused to sign a statement confirming that she had been informed of the date, time and place of the next court hearing; did not give reasonable grounds for the court’s conclusion that were she to remain at liberty, she might avoid the court since had on many occasions appeared at the court hearings and, during the investigation, at the investigators’ offices.

Mandatory notification by a defendant of his or her address and signing to confirm that they have been informed of the date, time and place of the next hearing, are not envisaged by the CPC. Accordingly the reference in the motivation part of the ruling to these omissions by the defendant does not have legal meaning in determining choice or change of measure of restraint.

The statement in the ruling that Yulia Tymoshenko failed to appear at a court hearing is not correct since she arrived at the court premises a few minutes late which the court knew when considering the Prosecutor’s application to change the measure of restraint. It is clear that such a formal one-off infringement by the defendant of the duty to arrive at the court hearing at the appointed time does not give sufficient grounds for the conclusion that she planned to avoid the court, and the choice (change) of measure of restraint to detention is clearly disproportionate to her lateness at a court hearing.

In its Ruling from 25 March 2004 No. 4 “On the use by courts of measure of restraint in the form of detention and extension of periods of detention at the stages of detective enquiry and criminal investigation (with amendments), adopted with the aim of ensuring correct and uniform application of criminal procedure legislation, removing flaws and mistakes, the Supreme Court stated that in resolving issues connected with choice of measure of restraint in the form of detention, and extension of periods of detention, the courts should be guided, in addition to domestic legislation, by Article 5 of the Convention.

Item 3 of this Supreme Court Ruling states the Supreme Court’s position that a decision to remand a person in custody is taken only where there are grounds for considering that other (less harsh) restraint measures may not ensure compliance by the accused with the procedural duties following from Article 148 § 2 of the CPC, and their proper behaviour. Item 15 of the Supreme Court Ruling speaks of the need to provide in the motivation part of a ruling the justification for concluding that there are grounds for choosing detention as the measure of restraint, as well as arguments supporting the view that the accused could avoid the investigation and court, or procedural obligations; obstruct the establishing of the truth in the case; and that the use of a more lenient measure of restraint would not ensure proper behaviour. Furthermore, Item 10 of the Supreme Court Ruling points to the possibility when considering detention as restraint measure of the court ascertaining the financial possibilities of the suspect, accused or other persons to pay bail and designating its size which could ensure proper procedural behaviour from the suspect or accused.

Thus even were there grounds for changing the measure of restraint, the Pechersky District Court  should have considered the option of choosing a less harsh measure of restraint, for example, bail. There have been cases of this in Ukraine’s case law, for example, in high-profile criminal cases during the prosecution of Boris Kolesnikov or Yevhen Kushnaryov. Despite the Supreme Court Ruling, the Pechersky Court ruling gives no explanation at all for why other restraint measures could not ensure Yulia Tymoshenko’s proper behaviour.  In view of this it is worth noting that in the case of Khayretdinov v.  Ukraine (№ 38717/04, from 14.10.2010 року) the European Court found that there had been a violation of Article 5 § 1 of the Convention in circumstances where the domestic bodies had not provided sufficient grounds for remanding the applicant in custody, and the courts had not considered the possibility of applying alternative measures of restraint.

According to Article 150 § 1 of the CPC when deciding on measure of restratin, besides the circumstances outlined in Article 148 of the Code, the courts should consider the severity of the offence that the person is suspected or accused of, the person’s age, state of health, family and financial situation; type of work; place of residence; and other circumstances characterizing the person. At the same time the Pechersky Court ruling only states that the court considered these circumstances without explaining in what way it had done so.

Moreover, according to Item 10 of the Supreme Court Ruling, the courts should also establish whether the person has any previous convictions; their social contacts; their inclination to use or use of drugs, alcohol etc; life style; as well as information indicating factors, circumstances or moral values which could suggest that the suspect or accused could, if at liberty, infringe the procedural obligations imposed or engage in criminal behaviour. The ruling does not state that it considered, for example, such a significant personal circumstance characterizing the defendant Yulia Tymoshenko, as the fact that she previously held the post of Prime Minister and is the leader of one of the most powerful political parties in Ukraine, and therefore her avoidance of justice (absconding) would, with a very high degree of probability, lead to her loss of authority in the eyes of her political supporters. It is clear that failure to take into account even this one significant circumstance in choosing detention as measure of restraint in a case involving charges linked with her actions as Prime Minister of exceptionally great public significance, does not comply either with Article 160 of the CPC, or the position of the Supreme Court,   The European Court in its case-law holds the view that domestic courts, when justifying conclusions that there is a real danger that a person will flee from justice, must indicate the personal features of the individual or provide the specific grounds for their detention, for example, in the cases of Mamedova v. Russia (7064, 05, from 01.06.2006 §76) and Aleksandr Makarov v. Russia, (15217/07, from 12.03.2009, §125).

From the European Court’s position, in order for deprivation of liberty to be lawful, it is insufficient for this to be carried out in accordance with domestic law, it must also be necessary under the given circumstances Witold Litwa v. Poland № 26629/95, from  04.04.2000 §78)

In view of the above, since the preliminary examination of the case of Yulia Tymoshenko when Judge Kireyev left unchanged the previously adopted measure of restrict involving a signed undertaking not to leave the place, in the examination of the case there were essentially no new lawful grounds for this to be changed to remand in custody. Therefore the court ruling was not based on the provisions of either international or domestic law. 

In the last years of the Soviet regime, hard currency shops sold just about anything in short supply which included the books of Solzhenitsyn, Grossman and other sources of truth about the regime.  Hard currency was needed and the shops kept westerners from asking inconvenient questions.

The decision to launch a Euronews Ukrainian Service on 24 August 2011, the twentieth anniversary of Ukraine’s Independence, was a clear marketing move.  However with respect to the upbeat promises from their Ukrainian partner, the state-owned National Television Channel of Ukraine, and its First National Channel - UTV-1, of “an important breakthrough into the European information realm” caution is warranted.

Euronews has a name to defend and is likely to avoid news reports demonstrating clear bias or propaganda.   It should, however, have considered this back in October 2010 when it signed a deal with UTV 1 for a 24-hour Ukrainian version of Euronews.  Over previous months there had been plenty of worrying reports about recent changes in news coverage, disappearance of analysis and muffling of information inconvenient to the new regime.  UTV-1, together with Inter, the TV channel owned by the Head of the Security Service, Valery Khoroshkovsky, regularly topped the anti-ratings issued for news coverage most often in breach of journalist standards.

In July 2010 UTV-1’s Director, Yegor Benkendorf produced an overtly hagiographic film about President Yanukovych for the latter’s reportedly spectacular 60th birthday festivities.  In the same month Benkendorf’s Deputy, Valid Arfush stated in a widely-publicized interview that in his view “UTV-1 must be pro-government” and should provide only “positive coverage” of the regime.

And in October Arfusz was made Chair of the Coordination Council for Ukrainian Euronews, while Benkendorf became one of the members, together with Michael Peters and Philippe Cayla from Euronews.  Judging from the assurances made by UTV-1 and Valid Arfusz about total objectivity and a European level of news coverage, it is likely that the UTV-1 heads preferred not to share their highly specific view of the role of the taxpayers’ television channel with the Euronews management.  It would also seem that the latter were happy to not notice what should have hit them in the eye, namely the gaping divide between fine words and reality.

Recent criticism of the failure by virtually any TV channel to provide analysis of the Tymoshenko trial and her arrest on 5 August is certainly valid yet what was in shortest supply was perhaps more fundamental.  Most of the news was quite simply missing. The taxpayers’ channel did not report even one of the statements of concern issued first by the Polish MFA, then by a number of other foreign ministries; by the President of the European Parliament, spokespeople for the EU and the US State Department, then by the PACE Co-Rapporteurs on Ukraine, Ukraine’s first President Leonid Kravchuk and many others.  All of these messages were short and eminently clear: Tymoshenko’s arrest and the prosecutions in general of former government officials appear politically motivated and suggest selective application of the law. . There were equally unveiled warnings as to the consequences of persecution of the opposition for Ukraine’s European prospects, foreign investment and role in the international community. .

Such a flood of unequivocal statements from professional diplomats and merciless verdicts regarding Yanukovych’s motives and Ukraine’s slide towards authoritarianism in most major world publications were in themselves news. Not on UTV-1.

You can’t muffle all information and Tymoshenko’s arrest was even UTV-1’s first news story on Friday 5 August. It began by stressing, via video footage and commentary, her disruptive lateness.  Broadcast of part of her response to journalists prior to the arrest is followed by clips of first, the Prosecutor, then the Vice President of something called the Association of Law Firms of Ukraine who says that there’s nothing unusual in the detention. His view that detention, effectively for “bad behaviour”, is quite lawful is categorically not shared by the above-mentioned foreign ministries and international bodies, not to mention most Ukrainian legal commentators whose voices were also not heard on UTV-1. .

On 6 August we learn that the opposition wants to call an emergency session of parliament because of the events of 5 August. We are informed how many votes they need, nothing more.  The report ends with the words that “Tymoshenko’s associates” are protesting against her arrest

The fact that it is by no means only her “associates” who have reacted with criticism can be read between the lines in the next item where Ukraine’s Foreign Ministry asks the European community not to “over-estimate” the new restraint measure against Tymoshenko.  We are told only that “some European countries have called on Kyiv to ensure a fair and independent trial of Tymoshenko” and that the authorities “are not interfering in the trial and hope that Tymoshenko’s arrest will not influence Ukraine’s relations with the EU”. 

No comment about the authorities’ interference, but that of UTV-1 is more than evident. Lest anybody should stop to ask inconvenient questions about this curious report, we are immediately assured of Prime Minister Azarov’s “conviction” that “Ukraine will be in Europe” and that “this depends on Ukrainians themselves”. 

There is obviously no mention of the well-founded suspicion that a great deal in Ukraine, including its “European choice”, is dependent on particular Ukrainians. There is silence also about the intensive activity of courts around the country in banning peaceful demonstrations and the even more active role played by the Special Forces Berkut officers in crushing peaceful protest.

Would Euronews call this adequate coverage?  The question is purely rhetorical.  We can assume that Euronews itself will not lower its standards of coverage.  However a channel which is available to a very limited percentage of the Ukrainian public could, just like the hard currency shops of Soviet times, conceal the real situation.  This would mislead the West while for most Ukrainian TV viewers publicly important information would remain in short supply. 

Euronews can make a difference.  Not by providing democratic gloss, but by insisting that the channel they are now closely associated with stops violating the fundamental right of Ukrainian citizens to information and freedom from manipulation.

Their reputation is also at risk, and we need to make sure that they know it.

Illustration (of a “Beryozka” or hard currency shop)  from  muph.livejournal.com

Yulia Abubok from the Internet publication OstroV speaks with the Executive Director of the Ukrainian Helsinki Human Rights Union, Volodymyr Yavorsky on the recently created Public Committee against Political Persecution, the reasons why it is needed and other worrying trends in Ukraine.

Details about the Public Committee against Political Persecution [the Committee], its aims and activities, can be found here http://khpg.org/en/1312451015

How warranted is the creation in Ukraine of a Committee against Political Persecution?

We can see at least 20 political cases which are being very actively developed. I consider that 20 for a democracy is too many. That is already taking on a systemic form, especially when these cases involve civic activists and politicians.

This must be countered now when the first wave of imprisonments is taking place since the second wave will already not have the necessary public impact. The experience of other countries shows that you need to stop the first wave or it’s too late.

You mentioned recently that since June there has again, after a temporary break caused by criticism from the public in Ukraine and abroad, been an increase in activity from the SBU [Security Service]. What is this seen in?

In constant meetings with activists. This is sometimes reasonably harmless, they simply ask them what they’re planning to do, how and why. But sometimes it takes on a different form. They say: “Perhaps you should give it up? You’re quite young, why do you need that? After all don’t you want to continue studying at your university?”  Or they meet with the parents and ask them: “Do you know what your son is involved in?”  Just imagine how people brought up in Soviet times react when they meet the Security Service and are asked about their children.

The pressure is already quite intense, though this is still, one can say, testing.

Since the beginning of this year the police have begun behaving much better. Whereas in 2010 just in the first four months we had around 300 reports of unlawful actions by the police during peaceful gatherings, now such appeals are relatively rare.

Now we have more problems with the courts.

What kind of problems?

The courts are on a large scale banning all peaceful gatherings, without any kind of justification, using obsolete Soviet legislation, for the example, 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.  According to the USSR Presidium, this was in force for three months meaning, de jure, that it has not been valid for a long time. Why the entire judiciary uses it is a mystery to me. Where our lawyers are involved, we manage to prove that it has no force.

We have an article of the Constitution which regulates questions relating to peaceful assembly. To hold a peaceful gathering you need only provide the relevant notification, and such gatherings can only be banned if there are good reasons and clear justification. There is also European Court of Human Rights case law which is a source of law in this country.

You also mentioned that the European Court has four cases for review at present concerning political persecution in Ukraine, including with regard to peaceful assembly. If the Court’s judgement is in favour of those you see as victims of political persecution, what will that do for our country?

The Court judgement will find that Ukraine has problems with peaceful assembly, that there is problematic legislation and, even worse, problematic application of legislation, and that administrative proceedings are being used against activists, i.e. they are being detained without any grounds.

This will be a fact and the government will not be able to say to the world “These are all lies, all stories from our opposition and civic organizations financed by western foundations”.

As well as other things, you are accompanying the cases of Yury Lutsenko and Yevhen Korniychuk in the European Court.

We are providing consultation to the lawyers working on those cases.

You insist that they are political.

At least the detention of Korniychuk and Lutsenko were absolutely unwarranted.  This is what the cases are about in the European Court, not the criminal prosecution since this is the main problem at present.

What about the Tymoshenko case?. You have also called that political.

That case is more difficult to call political since it has several components, however there is a political component. The mass of procedural infringements shows that there has been a certain commission and the judge is clearly behaving in a biased fashion

Furthermore the charge laid is very strange, boiling down to the fact that the Prime Minister gave an instruction to buy gas not at the price that the new Prime Minister would want to buy it. Yet you can’t punish for that, there is no element of a crime there!

Misuse of power must be for some gain, only then is it a criminal offence. If it was committed out of stupidity, ignorance, short-sightedness or under the pressure of circumstances, you can’t bring criminal prosecution.

There is perhaps a rather different story with the case of the purchase of ambulances, but as far as the gas is concerned the question of the element of a crime has been put very strangely, and has not even been clearly articulated.

In the documents about the creation of the Committee there is a list of authoritative international organizations supporting its activities. Are we to understand that their position in categorizing this or that case of political persecution coincides with that of the Committee’s?

We cannot assert that.  They will make their own statements. The Committee’s objective is to ensure that they send their representatives here, to study these cases in situ and then take the appropriate stand with regard to them. Sooner or later, in autumn or winter, when it gets to the verdicts, they will speak out one way or another.

How is their support reflected at the present stage?

The main problem in these cases is determining how much of a political component there is. Our partners have worked all around the world that they have enormous experience in defining who is a political prisoner or persecuted on political grounds, and who not. We are relying on their experience.

You said that there are 20 cases which can be categorized as political. What are these cases?

They’re all cases of the political opposition – at present there are 18. These are the cases of: human rights worker Dmytro Groisman from Vinnytsa; human rights activist Dementiy Bily from Kherson; the beating up of a human rights activist in Luhansk; the case of Verentsov from Lviv; in relation to members of the Tryzub organization concerning the bust of Stalin in Zaporzhya; against the person who scrambled eggs as a protest on the Eternal Flame in Kyiv, and several others.

In several cases there is also some kind of moral – ethical component. I saw the video with Dementiy Bily, he behaved inadequately.

But he was beaten, and he ended up with concussion. I don’t know whether he behaved adequately or inadequately, however the authorities’ behaviour was definitely inadequate.  Whatever the case, his behaviour did not give grounds for using physical force. Two people held him while the third beat him, and now they’re accusing him of beating up the person. The criminal investigation was terminated, now they’re restarting it.

Or scrambling eggs on the Eternal Flame

That was in fact a barbaric idiotic idea. But the maximum punishment for the young women committing it was administrative arrest for a couple of days. You can’t keep them in prison for a year – they’re not criminals. Therefore we are dealing with prosecution for ones views.

What do you want to achieve through the Committee’s activities?

To put pressure on the authorities using internal and international mechanisms so that they return to a law-based realm. Politicians need to be defeated at the elections and not with the help of the law enforcement bodies.

How old are the 20 political cases you’re talking about?

It all began starting from May last year.

That means that you can unequivocally link it with the coming to power of the new regime?

Yes.

And there was no political persecution before 2010 in Ukraine?

There were cases but they were isolated, and only against activists, not against politicians.  There was, for example, the case of Vadim Hladchuk, a Kyiv activist who was held for three days in a SIZO [detention unit] without any court order. We are presently running that case. There was the case of a trade union activist, Bondarenko. Since he complained about violations of human rights too often, the Prosecutor’s office decided that he was mentally ill and needed forced treatment – 30 days in a psychiatric hospital. They tried to achieve that for several years, and last year a court allowed their application.

There were cases from 2005 but they were terminated quite quickly. We spoke out then, incidentally, against the detention of Boris Kolesnikov.

Now these cases are numerous.

We held off from creating this Committee for a whole year in the hope that the regime would have the commonsense to take a step back.

If you compare the present period with the presidency of Leonid Kuchma, which would win from the comparison?

The Kuchma period was harsher, for example, censorship on TV was stricter and some people simply weren’t seen on the screen at all. Then they persecuted business and the tax authorities put pressure on the media and civic organizations. Everybody was subjected to checks, under surveillance and that was on a much wider scale than now.

Now businesses don’t have to complain to the Ukrainian Helsinki Human Rights Union about pressure?

Businesses complain, but at present the pressure put on them is not politically motivated. Now there is a process of monopolization going on in various areas of the economy and there are therefore attacks on business owned by others.

However the party in power is gathering information about businessmen. For example, last year they came up with something called a “passport of the region”. They gather information about all more or less well-known people in the region, including information about who they voted for in 2004, 2006, 2007, whom they finance, what kind of business they have, what kind of media outlets, who they’re loyal to.. And all this was gathered by the President’s Administration. In this way they have all the data about who supports whom where.

The Polish newspaper Gazeta Wyborcza quite recently described an analogous situation with them where one of the biggest political parties gathered information about the media, editors and journalists – who was loyal to them, who not. That is, it’s clear that this is not entirely legal, but it turns out that this is normal party practice.

In fact this may be normal practice for a political party, but in the given instance it was carried out by a State administration. We have documents which directly shown that such instructions were sent out by the President’s Administration, then regional administrations distributed them through their channels. That is the authorities’ resources were used which is not acceptable in a democratic country.

Do businessmen often complain to you?

Reasonably seldom. Businessmen, as a rule, do not believe in legal means of defence. Politicians from different levels often approach us - we defend mayors, the heads of local councils.

From what?

They manufacture cases against them. For example, they don’t want to give out land. An example was the well-known case of Marunyak which began under the previous regime. In the Kherson region they wanted to appropriate around three hundred hectares of land by the sea and Marunyak was one of the heads of the village councils that didn’t let them do it.

They fabricated a case against him, for that matter, extremely comical. They sent a person to him as if to give a bribe and Marunyak said: “Make a donation to the Village Council”. The person made a donation and then the Prosecutor insisted that it was a bribe. This was money that the head of the Village Council wanted to use to repair the roofs of one of the village buildings. That is, there was no motive of personal gain at all.

The most comical was that these 10 thousand UAH were taken from the State Treasury and later needed to be returned. And it was impossible to return them. They needed to be used as material evidence in the case and were given to the person who had supposedly given them as a bribe for safekeeping, i.e. to a private individual and of course the ten thousand disappeared.

We spent two years defending the Head of the Village Council. Unfortunately we weren’t able to help his colleague from a village nearby because they put a lot of pressure on him. He was sentenced to five years and served one year.

Have you not tried to establish dialogue with the authorities to give them signals not via public channels, but through personal communication?

We did that constantly, and furthermore we are still trying to have such dialogue now. For example, I am a member of the National Commission for the Affirmation of Democracy under the President. We draw up draft laws, for example, we’re among the authors of the new draft Criminal Procedure Code which has been being worked on for many years.

We are in fact ready to communicate with the authorities. The question is how ready they are to listen to us. For example, the Ministry of Internal Affairs [MIA] is not ready for dialogue at all and all our efforts have failed. We are therefore forced to use other mechanisms of influence. Why do we turn to the international community? Because we can’t resolve the issues in Ukraine.

Are you pleased with the new draft Criminal Procedure Code?

About 80-90 percent. It was very good two years ago but then it was spoiled a bit. They spoiled the norms on trial by jury, incidentally. However conceptually it remains good. This is in fact a reform we have been waiting for a long time which will really bring a European system of criminal justice to Ukraine.

Is the adoption of this Code not being dragged out?

It’s being dragged out by the law enforcement bodies which are afraid of this reform because they don’t have the inner strength to adapt to it. This is because with the adoption of the new Criminal Procedure Code [CPC]  they will have to prove a person’s guilt. They need to build their investigation system quite differently. Putting pressure on people becomes pointless because if a person does not confirm his confession in court, it wont’ have any force. In such conditions our police are simply not capable of working – today all their work is built around getting a confession out of a person, and the court has a formal role.

What is the problem with juries in the Code?

Their role has been minimized.  We had proposed that juries would work in district courts when examining criminal cases where a person could face a sentence of over 10 years imprisonment. According to this CPC, they will be involved only in examining particularly cases and will effectively decide nothing.

You said that the police are not capable of working according to the new CPC. Will the courts cope with the tasks that it sets before them?

Not entirely because the courts at present are totally dependent on the Prosecutor, and they will find it very difficult to take a decision which is not in the latter’s favour. At present if judges take a decision in favour of the other party, the Prosecutor applies to the High Court of Justice to have those judges dismissed.

Judges need to learn to work particularly since over the last year many older judges have left the system – according to our data, around 20 percent. New judges have come, young ones with little experience.

Is this is as a consequence of the so-called judicial reform?

Yes. Most of the judges who left hurried into retirement in order to retain their previous level of pay whiel another part found themselves under such pressure that they simply couldn’t remain. I know many judges who left because of their own stand.

Did the “judicial reforms” bring any other significant changes?

The legislators did everything to prevent people taking the State to court. For example, they restricted the timeframe for filing law suits and lodging appeals. In administrative proceedings it is now impossible to demand the withdrawal of a judge if the proceedings have already begun. In the High Administrative Court they have created a so-called “Fifth Chamber” which according to procedure which is not subject to appeal examines all cases against the President, the High Council of Justice and other higher bodies of power. That means it is a kind of special court for examining cases concerning the higher bodies of power, and this is in general strange. Its decisions cannot be appeal since this is a chamber of the High Court unless the High Administrative Court should decide to pass the case for the consideration of the Supreme Court which is improbable.

One of the achievements of the “judicial reform” was presented as being that each citizen is given the possibility of complaining about a judge to the High Qualifying Commission or to the High Council of Justice. Have you made use of this possibility?

We have tried, but without any result. To all our complaints we received the answer that we must appeal against the actions of this or that judge through the courts. Not one of our complaints has been effective. This is despite the fact that the High Council of Justice, as a judges’ Gestapo, now considers cases against judges – in one year there have been more than 300 applications for dismissal due to infringement of their oath.  This is a very large number in fact, more than in all the years of Independence. A deliberate purge is taking place. The role of the Prosecutor in this is very evident because three of its representatives are members of the High Council of Justice. They are extremely active with respect to specific judges.

In the High Council of Justice they say that you can appeal against the actions of a judge. Yet to resolve a problem with inaction you need nonetheless to go through the High Council?  How else?

In the High Council of Justice they answer that on the part of judges there aren’t infringements that would require High Court sanctions.

As a result the public have absolutely no faith in the objectiveness of court rulings, and the courts are not a means of resolving disputes, but a way for the strong to punish or avenge themselves against the weak.

The judges virtually never acquit people, with less than one percent of all rulings being acquittals. In our practice there has only been one case where the person was acquitted.  The most that a court will let itself do is to send a case back for further investigation. Incidentally there is one high-profile case involving the son of a deputy from the Party of the Regions who is accused of killing a well-known businessman. There was a verdict in the case, but it was revoked, and sent back for new investigation. At this stage the case is gradually crumbling. It’s been reclassified – it’s now virtually killing through carelessness.

Tying a man to a radiator and then drowning him is through carelessness?

Yes, that’s through carelessness. They say that at that moment he was already death. The classification was based on the fact that if you drown a man who’s tied to a radiator, that’s murder with particular cruelty. But now they’re arguing that they tied a dead man to the battery in order to hide the body.

Why do they not acquit people?

The judges don’t know how to do that because nobody teaches them, after all for that you need to master certain methods of argumentation. In the majority of cases they’re frightened because they’re very dependent on the law enforcement bodies.

Also at local level nepotism and close ties are very widespread. If the Prosecutor and judge go out together at the weekends hunting or fishing, and on work days meet in the court, then how can the judge pass a sentence against the Prosecutor?  In our system if there is an acquittal, then you need to punish the Prosecutor and investigator since that means that it was a case of wrongful prosecution. This is a fundamentally wrong approach but since the system works this way a judge understands the consequences – primarily for him or herself.

A year ago the public protested against the draft law on peaceful assembly and since then it’s been put aside and nothing new has been proposed. Do you have any idea what to expect as a continuation to that story?

The National Commission for the Affirmation of Democracy under the President drew up a new, really high quality draft law and sent it to the Venice Commission for their opinion. This is expected in October and it’s therefore envisaged that from October to December the President could submit the new draft law to parliament. We will soon see whether there is the political will among those in power to push it forward.

In one of your interviews you noted that in the legislation of Western countries the right of the people to uprising and revolution is enshrined. Incidentally I understand what the problem is for the regime in peaceful gatherings. They’re petrified of a second “Maidan” [i.e. Orange Revolution – translator]. Yet where is the border where one can talk not of unlawful mass disturbances, but of just uprising as this is understood in the West?

In theory there is democratic governance and the people in such conditions can act only through peaceful means. When power is seized by a tyrant, the people have the right to overthrow him in order to hold honest elections. In order to determine the boundary between tyranny and democracy you need to start off from specific situations. For example in Belarus there is clear tyranny. The Orange Revolution can also be called a legitimate movement.

The interviewer was Yulia Abubok

11 August 2011 

Several hundred people defied a court ban on peaceful protest on Tuesday evening in Kharkiv. As reported, the Kharkiv District Administrative Court on Tuesday issued a ban on protests on Freedom Square in the city from Tuesday till 28 August.  The ban covered peaceful gatherings planned by the Kharkiv regional branches of the Batkivshchyna Party; the People’s Self-Defence Party and two other organizations.  The grounds given were that “mass festive events” had been approved via a Mayor Instruction from 5 August, and that people attending needed to be able to move freely.  It seems less than clear from these mass festive events are, however on Friday 5 August the former Prime Minister and leader of the Batkivshchyna Party, Yulia Tymoshenko was taken into custody, hence the planned protests.

The head of the Kharkiv regional branch of the Batkivshchyna Party, Arsen Avakov, however, arrived at Freedom Square where the indefinite protest was planned and showed the police cordoning off the Square from protesters a copy of the Law on Freedom of Movement.

While the police blocked access to Freedom Square, the protesters began erecting tents and a sound system on Sumska St near the metro Universytet entrance.  They tried to get on to the Square but were stopped by police.

Around 300 protesters gathered in the early evening holding Ukrainian flags and Batkivshchyna symbols.

The court executor read out the court order banning the protest, however the protesters stressed that the court order did not pertain to the protest taking place and handed the executor additional notifications from various civic organizations about plans to hold protests. 

On 9 August the Kharkiv District Administrative Court issued a ban on protests on Freedom Square in the city. It ruled “to restrict the right” of the Kharkiv regional branches of the Batkivshchyna Party; the People’s Self-Defence Party and two other organizations “from holding peaceful gatherings on Freedom Square from 9 August to 28 August which are not linked with the events approved by Instruction №3411 of the Kharkiv Mayor from 5 August 2011.   That day, incidentally, saw the arrest and remanding in custody of former Prime Minister, presidential candidate and leader of the Batkivshchyna Party, Yulia Tymoshenko.

The court took into consideration that on Freedom Square and the central street in the city [Sumska St) mass festive events were planned and ruled that Kharkiv residents wanting to take part in them should be able to walk freely around the central part of the city.

The Internet publication Glavnoye notes that first, no “festive”, let alone “mass” events were envisaged for 9 August in Kharkiv. At least the official website of the Kharkiv City Council made no mention of any. Secondly, the Council decided to apply to the court having seen an application from the Kharkiv branch of Batkivshchyna [Yulia Tymoshenko’s party] to hold a protest on Freedom Square. In fact, the person whose name was on the document, Valery Dudko denies having made any application. He is convinced that the city authorities are using any methods trying to prevent protests calling for an end to political repression. He adds that this is not for the first time.

Valery Dudko says that the notification of a planned protest will be submitted on Wednesday on official paper and with the signature of the person authorized to sign such documents.

The protest was planned for 18.00 on Freedom Square.  

Public Committee against Political Persecution in Ukraine

Document No. 3

Persecution of members of the former government for governmental decisions

 One could welcome the declarations of the authorities regarding the need to fight corruption, misuse and impunity among public officials. However the charges brought against members of the opposition: Yulia Tymoshenko; Yury Lutsenko; Yevhen Korniychuk; Bohdan Danylyshyn; Valery Ivashchenko; Ihor Didenko and Anatoly Makarenko are at very least dubious. It remains unclear what criminally punishable acts they are supposed to have committed. It is not even suggested that they gained personal benefit from their actions. However first and foremost this is not a matter of systematic fighting against corruption, and under analogous circumstances criminal proceedings are not being initiated against members of the present government, although they sometimes resort to the same actions as those imputed the accused.

In general the use of criminal prosecution for governmental decisions under the guise of fighting corruption spells the destruction of the system of State governance. Political errors of ones predecessors, if they took place, should be rectified by the new regime using political methods, not the Criminal Code.

With the entrenched culture of governance as dictated by individuals and disregard for the law typical of the authorities throughout the 20 years of Ukraine’s independence, selective criminal prosecutions for governmental decisions of only members of the opposition has effectively meant the use of criminal justice for political ends. This is essentially a faulty understanding of “misuse of power”. Such practice runs counter to democratic values based on the equality of all before the law and undermines the foundations of criminal proceedings. The lack of independence of the judiciary and the resulting numerous violations of standards of just court considerations, including falsification of the charges, ignoring the principle of equality of arms, unwarrantedly harsh measures of restraint and flagrant violations of the right to liberty and right of defence highlight the political motivation of the authorities among the public.

The lack of any legal grounds for depriving Yury Lutsenko of his liberty, the flawed justification in the charges repeated by the court that he does not admit guilt and publishes articles in the press about his case demonstrate the overt lack of objectiveness and serious malaise afflicting our justice system. Another indicator of this grave illness was the unwarranted remand in custody of Yevhen Korniychuk on the day that his daughter was born; the continued detention of Valery Ivashchenko who clearly requires medical examination and treatment, etc.  These cases which grip the attention of the public and media reveal the typical human rights violations which take place each year in the criminal prosecutions of ordinary citizens.

The Ukrainian authorities are demonstrating total failure to comply with the norms of a civilized law-based state with a democratic political culture. A member state of the Council of Europe and signatory to many international accords on human rights must simply not behave in this way.

The last straw which has exhausted the patience both of Ukrainians and western countries was the arrest on 5 August of Yulia Tymoshenko for infringing order during the trial and insulting witnesses, as well as the idiotic assertion from both the judge and prosecutor that the order for her arrest was not subject to appeal. Yet who bears responsibility for the abnormal running of the case?  Not the court which does not give defence lawyers time to read the file material, disregarding the right to defence and through this violating the principle of adversarial justice?

This barbaric decision has aroused a wave of indignation both in Ukraine and in the world, and led to widespread calls for Yulia Tymoshenko’s release. Are our authorities able to rectify their mistakes or has the illness become incurable?

It should be noted that the diagnosis of manic repressive psychosis* applies not only to the authorities, but to society also. The conviction that one can overcome corruption through repressive measures, that somebody must end up in prison; the calls to put more inside dominate not just among a considerable percentage of the public, but among some of the intelligentsia. Yet we have already been through a situation where one half of the country was imprisoned and the other guarded them, and it ended in the total collapse of that country. Can the leadership of Ukraine not understand that political persecution leads to the country’s total isolation and collapse?.

President Yanukovych constantly asserts that his aim is to build a European model democratic state. The best proof of this would be to release political prisoners and stop persecuting the political opposition under the charade of fighting misuses and corruption.

Members of the Public Committee against Political Persecution in Ukraine

Zinoviy Antonyuk; Ludmila Klochko; Ihor Koliuszko; Mykola Kozyryev; Kateryna Levchenko; Myroslav Marynovych; Vasyl Ovsiyenko; Oleksandr Pavlychenko; Iryna Rapp; Yevhen Sverstyuk; Volodymyr Yavorsky; 

 * an expression first used by the poet Moisej Fishbein

Definition of categories applying to political persecution

Following the 2010 Presidential elections the new Administration began steadily resorting to political persecution of its opponents and critics.  This has been widely reported by the media; foreign and Ukrainian experts. For this reason the law and human rights communities need to establish definitions for “prisoner of conscience”, “political prisoner” and “persecution on political grounds” in today’s Ukraine. We shall base this on the experience both of Amnesty International and of the Soviet human rights movement of the 1960s to 1980s.  This gave definitions which were later developed in numerous documents of the Council of Europe, OSCE and other international organizations.

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

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

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

Political prisoners

We propose using the definition first presented by Sergei Kovalev, former political prisoner, human rights defender and first Russian Human Rights Ombudsperson. This considers a person a political prisoner where political motives have played a significant and clearly defined role in the criminal or administrative proceedings against them – and only such prisoners.  It is of no importance whether it is specifically political causes that prompted the actions which the person is accused of as a crime or offence; what is important is only the presence of political interest of the regime in the outcome of the case.  Since in the application of the law assessments and judgements beyond the framework of the law are unacceptable on principle, political motivation in court proceedings may result in procedural or material infringements such as:

elements of falsification in the charges;

 unwarrantedly severe restraint measures or punishment;

wrongful sentences or rulings regarding administrative offences;

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

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

 arbitrariness in choice of evidence, ignoring obvious facts;

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

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

We consider it unequivocally true that any political motivation must be eliminated in the sphere of justice, regardless of the gravity and consequences of the crimes.

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

Prisoners of conscience

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

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

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

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

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

For comparison, the Amnesty International definition states that a prisoner of conscience is a person deprived of his or her liberty solely for peacefully expressing their political, religious or scientific views. This definition was given at the beginning of the 1960s by the founder of Amnesty International Peter Benenson.

We would also note the definition of political prisoner given by Council of Europe: experts Stefan Trechsel, Evert Alkema and Alexander Arabadjiev:

(54). A person deprived of his or her personal liberty falls within the category of “political prisoner” :

a. if the detention has been imposed in violation of one of the fundamental guarantees set out in the European Convention on Human Rights and its Protocols (ECHR), in particular freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association;

b. if the detention has been imposed for purely political reasons without connection to any offence;

c. if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of;

d. if, for political motives, he or she is detained in a discriminatory manner as compared to other persons; or,

e. if the detention is the result of proceedings which were clearly unfair and this appears to be connected with political motives of the authorities.

The onus of proof

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

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

There are a fairly large number of people who have been persecuted for political motives. These are participants in protests who are being intimidated in various ways, sometimes connected with violence – small business owners, students, members of civic organizations, political parties, trade unions, etc; journalists and civic activists with whom the Ministry of Internal Affairs [MIA] or Security Service [SBU] have held prophylactic talks, or in relation to whom there has been demonstrative surveillance; staff of public sector institutions who, under threat of dismissal, have been forced to join parties, take part in rallies, etc.

In our opinion, the criminal cases initiated against the participants of the Tax Code Protest, the members of the organizations Tryzub and VO Svoboda, as well as former high-ranking officials – Yulia Tymoshenko; Yury Lutsenko and Yevhen Korniychuk – should be considered political persecution. 

All of the accused in these criminal cases who were deprived of their liberty or remain in detention are political prisoners. This conclusion follows from an analysis of the rulings regarding choice of restraint measure and the circumstances of their arrest and remand in custody. The former Economy Minister Bohdan Danylyshyn who has received political asylum in the Czech Republic was a political prisoner. One can say with a great degree of certainty that political persecution is involved in the cases of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the criminal investigation.

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

Virtually all civic activists who received administrative sentences under Article 185 and / or 185-1 of the Code of Administrative Offences, (infringing the procedure for organizing a peaceful gathering) after holding a peaceful gathering can a priori be considered victims of political persecution. To be certain each such case should be viewed in isolation.

The list here of political persecution in no way claims to be exhaustive. 

Following the 2010 Presidential elections the new Administration began steadily resorting to political persecution of its opponents and critics.  This has been widely reported by the media; foreign and Ukrainian experts.  The first sign of political persecution at local level was the imprisonment under Article 185 of the Code of Administrative Offences, supposedly for resisting police, for 15 days of two people protesting against the tree-felling in Kharkiv’s Gorky Park.  Amnesty International for the first time in six years declared the two activists prisoners of conscience (the only other case in 20 years of independence had been in 2004).

There have undoubtedly been political grounds for the criminal prosecutions against participants in the Tax Code Maidan, the protests in autumn 2010 against the Tax Code; against members of “Tryzub” (for beheading the bust of Stalin on 28 December 2010); over the daubing with paint of the monument to Felix Dzerzhynsky; the egg frying on the Eternal Flame in Kyiv; against former government officials: Yulia Tymoshenko; Yury Lutsenko; Bohdan Danylyshyn; Yevhen Korniychuk.  One can, with a high level of certainty, call the prosecutions of Valery Ivashchenko, Ihor Didenko, Anatoly Makarenko and other former government officials remanded in custody during the investigation, political persecution.

The absurdity, immorality and pure Soviet hypocrisy in combining abuse of the law with stringent restraint measures, as well as the political motivation of these prosecutions, leave nobody with any doubts. We are forced to acknowledge that Ukraine now has political prisoners.

There is also widespread use of such unlawful political harassment as “prophylactic” talks, well-known in Soviet times, with threats that a person will be dismissed from his job or educational institution; unlawful actions by the law enforcement bodies (beatings, unlawful gathering of personal information, unlawful surveillance; detentions; searches, etc); obstructing circulation of information and others.

Political persecution is a challenge to Ukrainian society. In order to put a stop to such actions by the authorities, we, the undersigned, are creating a Public Committee against Political Persecution in Ukraine (the Committee) which will take on the following tasks:

1)       informing the Ukrainian public and international community about political persecution, about the condition of victims and protests against political repression;

2)       Production of a weekly Record of Political Persecution in Ukraine in Ukrainian and English;

3)       Legal defence for victims of political persecution; the creation of a fund to assist victims, material assistance where needed for their relatives;

4)       Actions aimed at stopping political persecution, for example, protests against political repression in Ukraine

5)       Monitoring of criminal prosecutions with political overtones.

The Committee is an apolitical, non-party association of human rights activists from Soviet and modern days, which has no purposes other than those defined above.

Zinoviy Antonyuk

Arkady Bushchenko

Ludmila Klochko

Ihor Koliuszko

Mykola Kozyryev

Kateryna Levchenko

Myroslav Marynovych

Vasyl Ovsiyenko

Oleksandr Pavlychenko

Iryna Rapp

Yevhen Sverstyuk

Volodymyr Yavorsky

Yevhen Zakharov

Josif Zisels

The Kyiv Court of Appeal has revoked the ruling of the Desnyansky District Court which in April did not accept the way the Prosecutor’s Office had investigated the death in May 2010 of young student, Ihor Indylo. The court then concluded that the reason for Ihor’s death had not bee sufficiently well investigated, and sent the case back for further examination.  This was as requested by Ihor’s parents.

The Court of Appeal however found that there were no grounds for further examination and returned the case to the Desnyansky District Court.  The panel of judges did not allow the application from Oleksandr Zarutsky, the lawyer representing Ihor’s parents, for an additional forensic examination and to review the CCTV footage from the police station where Ihor Indylo died.

Two forensic medical examinations of the young man’s body have come up with contradictory results. The first found that he had received an injury from falling from the level of his own height (hinting that he had fallen in a state of intoxication either in the hostel or in the investigator’s office).  The second was that he had died after falling from the bench in his cell.

http://svidomo.org/defend_article/5270

Ihor Indylo died in police custody on the night from 17 to 18 May 2010.  He had committed no offence, went voluntarily to the police station, apparently after an altercation with a police officer living in the same student hostel. He died from head injuries and haemorrhaging.  After a report on the TV 1 + 1 Channel, the story became high-profile, and the police assertion Ihor fell in a state of inebriation was insultingly unconvincing.

A criminal investigation was initiated and in November the Kyiv Prosecutor’s Office announced that it was handing the case to the court.  The Prosecutor denies that Ihor Indylo was killed, just “inadequately watched over”.

The police officer, Serhiy Prykhodko, who took Ihor Indylo to the police station is accused of exceeding his official powers with this involving violations and actions denigrating the victim’s dignity, yet without any signs of torture.  The Senior Inspector of the Shevchenkivsky District Police Station, Serhiy Kovalenko is also charged with negligence. 

According to the Prosecutor’s Office, “the investigation’s version that the police officers were implicated in inflicting fatal injuries on Indylo did not find objective confirmation.” 

Valentina Telychenko, the lawyer representing Myroslava Gongadze, has asked for an expert option to be obtained indicating the presence of State secrets in the indictment against former Police Colonel, Oleksy Pukach.

“Before reading out the indictment and submissions which are stamped as secret, I would ask for an assessment by an expert on issues of State assessment who would indicate the fragments of the indictment and submission containing State secrets, in order for them to be excluded or removed to enable the victims’ side to read the rest of the text”, Ms Telychenko said on Monday.

She said that Georgy Gongadze’s widow does not believe it necessary to ask Ukraine for access to State secrets since she is permanently resident in the USA. She also “does not object if a part of the evidence in the case classified as secret, should be examined by the court in closed court hearings without her participation.”

She would, nevertheless, like to have the opportunity to read the indictment and Prosecutor’s submission regarding the termination of the criminal investigation against Yury Kravchenko [the former Minister of Internal Affairs who “committed suicide” with two bullet wounds to the head in early 2005 – translator].  This is because the formulation of the charges is defined there and the court cannot go beyond this.

The application also notes the practice of expert opinions of an indictment to ascertain whether there are any State secrets before it is read out, for example, with the cases against Protasov, Popovych and Kostenko [the former officers] who had a direct role in Gongadze’s murder.

The court is presently considering the application. Ms Telychenko said that she had spoken with Myroslava Gongadze who had agreed for the hearing on Monday to take place without her.  Ms Telychenko had previously asked that Ms Gongadze be able to take part in Monday’s hearing. 

In a new article, Vladimir Batchaev returns to the issue of police human rights infringements and their causes. He says that “Indicators in fighting crime at any cost” has become the slogan of every head of a police department. This leads to unlawful detentions; confessions being beaten out of people; falsification of documents and other forms of police crime. Clearly in such a situation they’re not interested in carrying out independent investigations into human rights infringements.  The infringements, in fact, are needed to get the good statistical results, and occur if not on the instructions of the police head, then with his tacit consent.

Only the irrevocability of punishment, he says, can make police officers treat people properly, yet it is the police who are responsible for such irrevocability and it is they who carry out initial investigations into allegations of abuse. The Prosecutor’s Office is supposed to have an overseeing role, yet that, he notes, is about all they do and do not take control, stop offences and ensure just punishment.

If you turn with a complaint to the Prosecutor’s Office regarding police actions, this will be sent on to the police.  It is only after the police have given their conclusion that the Prosecutor’s Office will decide whether to initiate criminal proceedings.  

There is a complicated mechanism for investigation of human rights abuses by the police which is of highly limited effectiveness. Internal investigations can be initiated by the heads of services and territorial Internal Affairs bodies, and the MIA Staff Inspectorate and Public Safety Service.

The structures exist, only the results of their work are lacking.  The author looks at the fundamental requirements, i.e. that the investigation is comprehensive, objective, lawful, timely, open, competent and efficient.

The author considers the theory as set out in statutes, etc, then looks at the reality. The latter, he says, is that investigations carried out by territorial police bodies are a fiction. The reason is simply: it’s more convenient for the police head and dangerous for his career to investigate human rights infringements.  He faces the same choice each day: safeguard observance of human rights in his station or get the indicators on solved crimes. The latter is directly connected with a policeman’s career prospects.

The author believes that in this situation, where at the lower levels, there is no motivation to uncover rights infringements, the MIA leadership are in all kinds of ways encouraging them to conceal such facts. The much trumpeted position taken by Minister Mohylyov that the boss will be punished for an offence committed by a police officer is wrong and dangerous, primarily for the public. Obviously police heads have no interest whatsoever in unbiased official investigations or even uncovering the infringement committed by their subordinates

It is this, Batchaev says, that in the first instance causes the high latency of rights abuse in the police. the very policy is wrong: management should answer for systematic violations, but not for actions committed by one subordinate.

Therefore the heads of police stations are clearly unable to ensure objective investigations. 

There is also the Staff Inspectorate whose main task is to carry out such investigations. Its staff couldn’t care less about police indicators. Theirs, after all, are for investigating violations of rights by the police.

Unfortunately they deal with complaint after complaint after complaint which, according to the author, arouses mounting irritation and animosity to those making them.

They are not professional investigators, but most importantly, they cannot be totally objective. They are subordinate to the heads of regional MIA departments on staffing who have no interest in highlighting rights abuses.  The press makes a lot of noise and then the above mechanism of looking for somebody higher to blame or punish comes into force.

With regard to the requirement of comprehensive investigation, the Inspectorate staff are simply not in the position to ensure this. They do not, for example, usually have access to particular documents and whole areas of police work.  There are normative documents actually prohibiting them from investigating official abuse by investigators.  This leaves only the head of the investigation body authorized to carry out such a check.

The author looks at other reasons: the fact that the Inspectorate is staffed by the same police officers recruited from local level departments.

The author also points out that according to the Law on the Police this Inspectorate does not even have the authority to carry out such official investigations. Complaints alleging a crime need to be added to the register of reported crimes and a decision whether to initiate a criminal investigation taken within 10 days. In practice the Inspectorate does not register such complaints and reviews them within a 30 day timeframe in accordance with the procedure set out in the Law on Citizens’ Appeals..

Official investigations into alleged rights violations of people held in temporary detention units are made more difficult by the lack of openness of the institution. The detainee often has no opportunity to tell people about the violence inflicted since he is totally under the MIA staff’s control. His conditions depend on them, and they can make his life much worse. Therefore detainees seldom complain about the personal to the Prosecutor and other controlling bodies. It is only when released or moved to a SIZO [pre-trial detention centre] that they dare to complain but by then time has passed and it’s hard to prove violations.

The victim of abuse has no opportunity to fully participate in the investigation, including reading the investigation material and using the services of a legal specialist. A police officer runs the investigation and he determines its strategy and tactics.

The author writes that one cannot talk of official investigations without mentioned the Internal Security Service  - the “police Oprichnina” [secret police, notorious for their methods of terror from around the 16^th century – translator] who are directly subordinate to a narrow circle within the MIA apparatus.  The Service was created in 1992 because of the threat of an organized police criminal community forming in the wake of the momentous changes in the country following the collapse of the USSR.  Most of the human rights violations within the police force are outside the Service’s scope.

Batchaev says that it is not solidarity which prompts the Prosecutor’s office to work in step with the police in such matters, more that they know that this is guaranteed headache and that they will have to carry out the investigation. And relations between the investigator and the defendant are always confrontation, a dual of knowledge and experience.  It is not guaranteed that the Prosecutor’s investigator will come out the winner.

To insure themselves against an unsuccessful outcome the investigators demand ideal preparation of material from the Staff Inspectorate, totally proofing the guilt of the police officer. Often neither the Inspectorate nor the Internal Security Service are in a position to provide this.

The author says that it is impossible to speak of any success by the MIA in combating the above problems and believes that the Ministry will also focus first of all on tasks involved with fighting crime, leaving protection of rights and freedoms somewhere on the periphery.

He is convinced that the optimum system is where the public monitor the situation and force the police to behaviour in accordance with the law.

For this reason he believes it necessary to create a separate State structure, totally independent of the MIA, which will deal exclusively with control over observance of human rights in the law enforcement (and other) bodies, without being distracted by other tasks. This structure should launch a mechanism for full participation of the public in control over the activities of the police and ensure objectivity of investigations into violations of human rights within the police.

The text which this summarizes is by Vladimir Batchaev from the Association of Ukrainian Monitors of Human Rights Observance in the Work of Law Enforcement Bodies was published in Russian here: http://tema.in.ua/article/6653.html
 

The environmental-humanitarian association Zeleny Svit [Green World] has issued an open letter to President Yanukovych expressing concern at the Cabinet of Ministers  Resolution from 22 June 2011 No. 704 “On reduction in the number and consolidation of State targeted programmes”.

Item 4 of the Resolution instructs the Environment Ministry to submit by 15 July 2011 a draft law on declaring void the Law on a Nationwide Programme for the Creation of a National Ecological Network in Ukraine for 2000-2015 [the Programme].  The authors believe this draft law to have been drawn up already.

“The decision to terminate the Programme demonstrates a regrettable lack of professionalism by the leadership of the Cabinet of Ministers which has proven incapable of understanding its importance for preserving our natural heritage, the principles of sustainable environmentally balanced development, as well as the consequences of its outrageous decision on the health and prosperity of the present and future generations. This Cabinet of Ministers decision is an attempt to destroy Ukraine’s last natural oases and a further assault on Ukraine’s image as a European country. This is an additional obstruction on the road to European integration since in accordance with the General guidelines for the development of the Pan-European Ecological Network (1995), the process of creating a Pan-European Ecological Network as a single system for the territory of Europe has been underway now for well into a second decade”.

Zeleny Svit points out that the 13 May 2011 Cabinet of Ministers Resolution “On the main directions of budgetary politics for 2012” included the Programme in the list of targeted programmes for implementation as priority.

Members of Zeleny Svit fully endorse the predictions of the Environment Ministry regarding the consequences of adopting the above-mentioned Law. It will lead to the elimination of a single State targeted programme aimed at preserving the biological and landscape diversity and at creating an ecological network.

“The adoption of this Law will have an adverse impact on planned nature protection work which will cause irreparable damage to Ukraine’s natural environment. The Programme is the only State targeted programme providing financing for environmental protection measures aimed at preserving Ukraine’s nature, its biological and landscape diversity.  [These measures include] keeping a cadastre of animal and plant life, issuing Ukraine’s Red and Green Books, and creating areas and objects within the natural reserve fund with national significance.

The cancellation of the Programme will have an extremely adverse impact on Ukraine’s international image and demonstrate its failure to implement its international commitments and the decisions of the UN General Assembly which it endorsed. The Programmes ensures implementation of Ukraine’s international commitments with regard to more than 20 UN conventions and multilateral agreements. In addition in December 2010 the UN General Assembly, including Ukraine, declared the following decade to be the decade for preservation of biological diversity”

Zeleny Svit calls on the President to cancel the Cabinet of Ministers Resolution and asks for a written response in accordance with the Law on Citizens’ Appeals.  The letter is signed by Zeleny Svit’s Executive Director, Oleksandr Stepanenko.

The Law on Refugees and People who need additional or temporary protection came into force on 4 August 2011. Nadiya Ediyeva from the Chernihiv Public Committee for Human Rights, assesses its new features.

She says that this is undoubtedly an important step for Ukrainian society on the way to Eurointegration since the previous legislation on refugees was somewhat obsolete and ill-functioning on issues of international migration. One serious problem, for example, was the lack of other forms of protection for asylum seekers besides refugee status.  The new Law contains a number of new features regulating the procedure for providing protection and asylum to foreign nationals and stateless persons.

One important step is the norm on preserving and uniting families of immigrants. From now on members of the family of a person who has been recognized a refugee in Ukraine, or a person who requires additional protection, or has been given temporary protection in Ukraine, have the right to enter the country for the uniting of the family and be recognized as refugees or people needing additional protection, or receive temporary protection.   This means that children will automatically receive legal status together with their parents.  It does not, however, apply to children who have reached official adult age. This means that the norms of Article 1 § 24 of the Law slightly contradict Article 4 of the same Law.

There is another new feature in Article 3 § 1 which adds to the standard grounds for gaining refugee status in Ukraine (the danger of persecution on the grounds of race, religion, nationality, citizenship, membership of a particular social group or political convictions), the words “or for other reasons which are recognized by international agreements or international organizations which Ukraine is a member of, as meaning that a person may not be returned to his or her place of origin”. 

The author, however, sees the key feature of the new Law being, in addition to refugee status, the mechanism of protection for asylum seekers. If “temporary protect” applies directly to asylum seekers from neighbouring countries with joint borders, the concept of “additional protection” encompasses specifically that category of asylum seekers who do not fall under the 1951 Convention as people having grounds for receiving refugee status. Such a norm in more refined form has been used in considering asylum applications to EU countries for many years now. This is a major step for providing protection to foreign nationals and stateless persons in Ukraine which should make the work of NGOs and state bodies easier.

The author however notes the concern expressed by the UNHCR reported here.

While in general UNHCR welcomes the introduction of complementary protection in the draft legislation, the definition of complementary protection is considerably narrower than that specified in EU standards.  Notably, the Ukrainian draft legislation does not foresee the grant of complementary protection to persons who would face a “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict” as provided for in Art. 15(c) of the EU’s Qualification Directive (see Council Directive 2004/83/EC of 29 April 2004).   UNHCR remains concerned that persons with real international protection needs, particularly those fleeing armed conflict, will not be granted protection in Ukraine.  
The author notes that the Law also fails to regulate provision of quality and effective procedure for review and provision of refugee status or additional protection and does not provide further protection for people who did not receive a positive answer to their application for asylum. 

Nor does the Law guarantee protection from torture or ill-treatment, and is quite limited and narrow on the procedure for forced deportation.

She expresses the hope, therefore, that this Law will not be the only step towards bringing Ukrainian legislation into line with minimum international standards.