“Prava Ludiny” (human rights) monthly bulletin, 2011, #09
Denis Oleinykov plans to seek political asylum in Latvia The Independence Square protest on 15 September: a human rights perspective After Kharkiv’s TV ATN who’s the next target? Failure to provide Yury Lutsenko with Medical Care constitutes Inhuman Treatment. Document 4 Against torture and ill-treatment
Yellow Card for Ukraine’s Police: Second Warning The right to a fair trial
If we look in the book, we see ... New Draft Bill on Enforcement of Court Rulings, Same Old Problems Freedom of expression
Ukrainian Political Tensions resurface over irreverent soccer chants Access to information
What Public Information Act? Freedom of peaceful assembly
Say NO to restrictions on peaceful assembly! Penal institutions
Shocking statistics in Ukrainian penal institutions
Politics and human rights
Denis Oleinykov plans to seek political asylum in Latvia
The owner of the firm ProstoPrint which came to fame recently over its production of t-shirts with the words “Thank You, Residents of Donbas”, has told the BBC that he plans to ask for asylum in Latvia. He left Ukraine on 21 September, and told the BBC that he is presently in Croatia.
The phrase "Thank You, Residents of Donbas" became popular after a soccer match on 7 August in Kyiv. Fans of the Dynamo soccer club chanted "Thank You, Residents of Donbas for the President … followed by an obscene word insulting the President”. The President and a large number of those presently in power are from this region. The video clip on YouTube has been incredibly popular, and been viewed by more than a million people. Variants elaborate on specific social and economic ills that are attributed to the residents of Donbas.
Denis Oleinykov is convinced that the law enforcement agencies have persecuted him because of ProstoPrint’s production of the t-shirts.
The Kyiv Police, as well as the Deputy Prime Minister Boris Kolesnikov, have asserted that the checks of ProstoPrint were linked with unlawful use of the Euro 2012 logo.
Mr Oleinykov told the BBC that he and his family faced real danger in Ukraine and would therefore be forced to ask for asylum. He says that they are considering Latvia since it is Russian-speaking but will stay where he is at present, and may also seek political asylum in a West European country, Germany, Belgium or Austria.
He says that he had received threats earlier that concerned his business. The first phone call demanding that they withdraw the t-shirts came a week before things began on 6 September. He says that he did not refuse out of political involvement but because the call was anonymous. He also decided that “from the technical point of view the phrase was not offensive”.
Denis Oleinykov also asserts that until this conflict his firm had never had any problems with the law enforcement or regulatory authorities. There had never been any issues over the rights to logos etc. “So all this situation, all the link with Euro-2012 seems stupid, only an idiot would believe it”.
He suggests that the incredible popularity that the slogan “Thank You, Residents of Donbas” has gained is largely thanks to the behaviour of the law enforcement bodies.
As reported, Berkut riot police on 15 September tried to stop a “charity people’s fair” on Independence Square where products carrying the caption "Thank You, Residents of Donbas" were sold (or given away, with a donation sought). The police explained their actions as being to counter infringement of vending laws. They also confiscated the products, supposedly because of the investigation into alleged unlawful use of the Euro 2012 log.
The Department for Fighting Organized Crime [UBOZ] also carried out a check of the firm, supposedly because of unlawful use in other products of the Euro 2012 logo. ProstoPrint maintains that this was linked with the "Thank You, Residents of Donbas" T-shirts.
Then the situation unfolded even more dramatically with some political strategists saying it looked like planned provocation.
There was news that a young lad wearing such a T-shirt had been shot in the arm. The police deny this saying that he injured himself with a drill.
As reported, the police In addition, the Dynamo fan Andriy Korynovsky was summoned by the police for questioning, supposedly over a fight at the stadium and assault on a member of staff during the match where the slogan was first chanted. The Dynamo fans are convinced that the reason was in the chanted words.
New information from the BBC Ukrainian Service
The Independence Square protest on 15 September: a human rights perspective
As reported, on 15 September 2011 a protest on Maidan Nezalezhnosti [Independence Square] in Kyiv ended in a scuffle with police. Mykhailo Kamenyev, a member of the Public Committee under the MIA, and specifically its Commission on Freedom of Peaceful Assembly was present at the event and considers that there needs to be a proper legal assessment given to what took place.
He points out that the official police reaction spoke of the event as “an advertising-charity action in an unspecified place”. The MIA Press Service claims that the participants were warned that the action was unlawful and were asked to stop. The request, they say, was ignored and therefore “police officers stopped the unlawful actions and removed around thirty one advertising items”. In a separate part of the report, the MIA states that notification was submitted to the Kyiv City State Administration on 14 September regarding an action on Independence Square from 18 to 21.00 on 15 September.
The report given at the time stated that during a protest action on Independence Square, officers from the Special Force Berkut police unit removed T-shirts with the caption “Thank you residents of Donbas” [the present regime is closely associated with the eastern Donbas region, especially Donetsk – translator]. Journalists were informed of this by the head of ProstoPrint which printed the captions, Denis Oleinykov.
“We gathered here for an agreed protest action which was approved by the Kyiv City State Administration. The action planned to acquaint people with the creative output of young Ukrainian designers who are critical of the present regime’s actions”, he explained.
“You know we have the right to not like the authorities. They do not have the right to not like us. We make no secret of the fact that we don’t like this regime and we came to show that you can dislike this regime in a creative and interesting fashion”.
According to Mr Oleinykov, the organizers showed their documents on arrival to the police and no questions arose. Then, 20 minutes later, a police officer turned up and said that the T-shirts could be shown, but not sold. Therefore the organizers set up a box for donations – anyone wishing to receive a T-shirt could offer their contribution. “At exactly 6 o’clock, Berkut arrived and without any explanation of the reasons took away the T-shirts, tried to take away the box with donations and took them away in an unknown direction”.
Mykhailo Kamenyev considers the legal aspects of the situation
The organizers of the protest complied fully with Article 39 of Ukraine’s Constitution by submitting notification of a planned peaceful gathering. A copy of the notification was given to police officers.
There is no information about any court order banning the event. The participants gathered peacefully, without any weapons, did not obstruct traffic or infringe public order.
Their aim was to draw attention to the situation which had developed around the firm ProstoPrint. The participants planned to hand out T-shirts and collect donations. De jure no case of sale of any products was recorded.
The description by the police of the action as an “advertising charity action” arouses only bemusement since there is no such concept in current legislation.
Nor do either the Constitution or the European Convention on Human Rights provide the state with the right to draw up a list of “established” places for holding peaceful gatherings.
Mykhailo Kamenyev stresses that the police statement that the action “can formally be views as unlawful sale of goods” is unacceptable value judgement. No sale was recorded, and the action must be viewed from a legal point of view, not “formally”.
The police statement that the stated aim did not match the actual aim is also unacceptable since any meetings can only be banned or restricted by a court order.
The police deny that any measures of force were applied.
Mykhailo Kamenyev notes that according to TVi at the beginning of the action around 10 police vans arrived.
Warning that force would be used was given by a police officer only to the action organizers, and the participants heard nothing, nor were they given sufficient time to leave.
He adds that it is quite clear, from witnesses, journalists, participants in the protests, as well as photos and video footage, that force was applied, making the denial by the MIA knowingly false. “Beating by Berkut officers of protesters was recorded, of journalists; there were attempts to detain people unlawfully, to obstruct journalists in their work and damage of a cameraman’s equipment. The force was aimed at stopping the collection of donations and removal of the T-shirts.
The following also constituted violation of freedom of peaceful assembly:
Berkut officers divided the participants into two groups in order to avoid distribution of the T-shirts and collection of donations;
Berkut officers confiscated a number of T-shirts using force to do so.
Berkut officers, while taking away the confiscated T-shirts drove off participants and journalists, damaging the photographic equipment of a cameraman from the publication Komentari
There were over 30 Berkut officers involved. The partial blocking of transport after the scuffle began was initiated by the police.
The author points out that the slogan “Thank you, residents of Donbas!” is a purely ironic response from society to the present regime.
In concluding, the author points to the key features:
- notification about the planned action had been provided and all formal procedure carried out;
- there was no court ban on it;
- people gathered peacefully, without weapons and did not obstruct traffic;
- the demand from the police to stop the protest was therefore unlawful. They can be described as exceeding ones powers and unlawfully obstructing the holding of a peaceful gathering.
- There was also not sufficient warning for such intervention by the police;
- Force was applied against unarmed individuals who were not showing resistance or infringing public order. It was clearly disproportionate.
- Force was also applied against journalists carrying out their work. This can be considered obstruction of a journalist’s professional work (Article 171 of the Criminal Code as well as exceeding their powers (Article 365). The latter article applies also to the removal of T-shirts
Mykhailo Kamenyev recommends that the organizers and participants in the events of 15 September take the MIA to court, and make complaints to the Prosecutor’s Office and the Human Rights Ombudsperson. He makes other recommendations including an open official investigation, a thorough check by the Prosecutor’s Office. He also recommends that Tomas Hammerberg, Council of Europe Human Rights Commissioner draw attention to the incident as won which is the first step towards further reduction of the freedom of expression. He suggests that a number of other western organizations do the same, as well as diplomatic representations, etc in Kyiv.
Adapted and abridged from the text at: http://helsinki.org.ua/index.php?id=1316594195
After Kharkiv’s TV ATN who’s the next target?
If Ukraine’s leaders believed that the two-week break in Yulia Tymoshenko’s trial would avert criticism at the Eighth Ukraine and the World Forum in Yalta, they were mistaken. Stern noises were heard from Friday on, with fairly unequivocal warnings that imprisonment of the former Prime Minister would gravely damage Ukraine’s prospects for European integration.
Tymoshenko’s prosecution and detention are undoubtedly flagrant violations of fundamental principles of democracy. They are categorically not the only ones committed by the current regime, and hurried efforts to remove a Soviet-age article of the Criminal Code in order to avert Tymoshenko’s conviction cannot be all that the EU demands. There are a number of others, including former government officials, facing prosecution on equally dubious grounds. It is impossible to see any justification for the continued detention of former Minister of Internal Affairs Yury Lutsenko and former Acting Defence Minister Valery Ivashchenko , to name but two.
There is no place for selective justice in a democracy. Selective indignation could also create the wrong impression.
This does not apply only to flawed and politically motivated prosecutions. A key element of any democracy is freedom of speech and access to information. Manipulation of information is, brutally speaking, more efficient than heavy-handed force, and no less dangerous.. The hard-hitting words spoken at the meeting in Yalta have largely filtered back to the Ukrainian Internet via western information agencies. The State-owned and taxpayer-funded UTV1 gave an upbeat report from the first day of the meeting. Of particular interest were the words from EU Enlargement Commissioner Stefan Fule about the considerable progress made towards an EU- Ukraine Association Agreement. Of interest, as is increasingly the case with Ukrainian television, because of what was not reported. Unlike Reuters, the BBC and other agencies, Ukrainian television preferred to omit clear statements from the same Mr Fule regarding the damage to relations which the trial and arrest of Yulia Tymoshenko is causing. The Ukrainian version of Euronews left out the conference altogether. One can hope that the Euronews team has reason for assuming that Ukrainian viewers are more interested in a meeting of Eurozone Ministers of Finance in Wrocław (Poland) than issues which could make or break the EU-Ukraine Association. On the other hand, the serious flaws in the presentation of opposition protest on Independence Day, the day Euronews in Ukrainian was launched, would suggest a closer link with UTV-1 than can be considered appropriate.
The arrest of the President’s main opponent jeopardizes Ukraine’s democratic development. So too does a population deprived of the ability to make informed judgements about Ukraine’s leaders and any possible harm they are doing the country.
Pressure from EU bodies here is also vital. They could begin by addressing a situation with grave implications for freedom of speech in one of the cities – Kharkiv – hosting Euro 2012 in less than a year. For 18 years TV ATN has provided quality news reporting to the region. Last week, ATN and two channels broadcasting its news – Fora and ATVK – found themselves taken off air. Various garbled and suspiciously varied pretexts have been provided for what was effectively the simultaneous cutting of the three channels providing news coverage critical of Kharkiv’s Mayor Gennady Kernes. The latter, together with his wife, basically own the other channels in Kharkiv.
The Ukrainian Helsinki Human Rights Union and Kharkiv Human Rights Group have reiterated concern expressed by the channels themselves. This move could deprive Kharkiv residents of a vital opportunity to be informed about all that the authorities are doing, not simply that which the Mayor wants them to know.
In an interview regarding this latest assault on freedom of speech, the question was asked over and over again: who will be next? It is not clear whether the central authorities, the President and his Administration were aware of the events in Kharkiv. Nor indeed is there direct proof of any official’s political or other motives. However three important sources of information have been stifled and there can be no doubt that intervention is needed.. Judging by the overtly pro-regime slant of Ukraine’s State-owned channel, it seems safe to assume that only serious pressure will force those who wield real power in the country to use it properly. Such pressure from the European Union will cost considerably less than the 22 million recently pledged for the development of democracy in Ukraine. It will be no less efficacious.
From a picket by ATN and others of the Mayor’s Office (the caption reads “Not trained to lie”))
Failure to provide Yury Lutsenko with Medical Care constitutes Inhuman Treatment. Document 4
The Public Committee against Political Persecution in Ukraine: Document 4
Access to medical care, this including free choice of doctor, is one of the minimum standards stipulated by the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment with respect to detainees and people accused of a crime and remanded in custody. The position of the European Court is also clearly articulated in a number of judgments, for example, in the case of Kucheruk v. Ukraine, Yakovenko v. Ukraine and others. Failure to provide timely and appropriate medical care is deemed inhuman or degrading treatment and is a violation of Article 3 of the European Convention on Human Rights which guarantees the right to not be subjected to torture and ill-treatment. Ukraine has committed itself to comply with the European Convention which forms a part of its domestic legislation. Nonetheless failure to provide medical care to people in custody is a systemic and widespread rights violation in Ukraine and this is particularly evident in the high-profile cases which the public are following, such as the prosecution of the former Minister of Internal Affairs, Yury Lutsenko.
On 28 May Mr Lutsenko was examined by Professor S. Tkach from the Faculty of Internal Medicine of the Bogomolets National Medical University and O. Shvets, the Chief Diet and Nutrition Doctor [Dietolog] of the Health Ministry and Associate Professor of the same University. Their recommendation was that Lutsenko would receive treatment in a specialized hospital. However the diagnosis given by these specialists, the results of the examinations and their recommendations were concealed from both Lutsenko and his family. This in itself constitutes a violation of the Constitution and Law on Information which make it mandatory to provide a patient or his or her representative with information about their state of health. His condition only deteriorated and on 30 August the same specialists examined him again. The diagnosis given is extremely serious: cryptogenic cirrhosis of the liver with portal hypertension and digestive tract varicose veins.
According to O. Shvets there was also a very serious situation in May involving an ulcer condition and Lutsenko needed specialized hospital treatment. Yet he was not transferred to a hospital as had been recommended by S. Tkach and O. Shvets. It is not known whether their prescriptions were implemented. Over the last three months Lutsenko’s condition has seriously deteriorated. In May the cirrhosis, which is a very serious liver illness, was not diagnosed. So that the cirrhosis of the liver does not progress and to avoid complications, the specialists have recommended treatment in a gastroenterological clinic. This treatment cannot be provided in the SIZO [detention centre] which does not have the qualified doctors, medication and equipment.
Yet the court, against the doctors’ recommendations, only permitted Lutsenko to be seen by medical staff from Health Ministry establishments within the confines of the SIZO. According to the Health Ministry’s Chief Diet and Nutrition Doctor, this is extremely dangerous. Over the next weeks in Lutsenko’s detention conditions, the disease will only get worse. Without full treatment, the cirrhosis of the liver could progress, with its decompensation, complication developing (haemorrhages, etc). In the most serious case, it could turn into cancer.
The failure to provide medical care to Yury Lutsenko can be classified as inhuman treatment which is in violation of Article 3 of the European Convention on Human Rights. We therefore demand that Lutsenko be immediately provided with hospital treatment in the appropriate medical clinic.
Public Committee against Political Persecution
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
Against torture and ill-treatment
Yellow Card for Ukraine’s Police: Second Warning
On 8 September in Kyiv and 10 Ukrainian cities an awareness-raising action with the above title has been organized by the social network Human rights activists in action and the educational programme “We Understand Human Rights”. The action is aimed at ensuring that young people know their rights when in contact with the police and drawing the attention of both the public and the Ministry of Internal Affairs management to the issue of human rights observance by police officers. It is a part of a nationwide student information and educational programme for establishing monitoring over MIA activities.
In many cities human rights workers, members of well-known civic organizations and youth activists will visit educational establishments to teach young people how to defend their rights. Various striking performances are planned simulating situations of conflict between young people and the police. Ten thousand booklets will be distributed giving young people information about their rights if detained by police officers.
The events will end with the youth activists and well-known human rights workers gathering at the central offices of the MIA and calling on those in charge of Ukraine’s police force to tighten control over the activities of police officers in the regions and to explain to them fundamental principles when detaining people as stipulated by current Ukrainian legislation.
The right to a fair trial
If we look in the book, we see ...
The Strategic Litigations Centre constantly reports on different cases of “enforcement” by our courts of European Court of Human Rights judgements. One can find dazzling examples of such enforcement in the cases of Oleksandr Yaremenko, Stanislav Lutsenko and Dmytro Shabelnyk.
A new such example is provided by the case of Maria Ivanovna Bochan.
On 3 May 2007 the European Court issued its judgement in the case of Bochan v. Ukraine. We will not go into details about Maria Ivanovna’s civil case in domestic courts. We would mention only that the dispute concerned ownership of a house and plot of land which was, as anyone can understand, of critical importance for this lady born in 1917. The circumstances of the case are set out in detail in the ECHR judgement.
We will also not describe the whole saga of the domestic proceedings. They end with an application to the European Court and with the Court’s judgement that there had been a violation of Article 6 § 1 of the Convention on Human Rights.
The Court noted how the assignment of jurisdiction by the Supreme Court had changed. It did indeed change very strangely. One must remember that over a very large number of years the transfer of the case to another region subjected the applicant to incredible difficulties. Yet the Supreme Court for some reason did not provide grounds for its decision to change the jurisdiction, instead “having stated its position concerning one of the principle aspects of the case, namely the Society’s competence to grant property, even before the new assessment of facts and taking of evidence by the lower courts took place” (§ 74 of the Judgement). Such behaviour by the Supreme Court led the European Court to conclude that “the applicant’s fears that the judges of the Supreme Court, including its Deputy President, had a prefixed idea concerning the outcome of the case and that the judges to whom the case had been transferred on 9 October 2000 would have to consider the case in accordance with the Supreme Court’s view could be held to be objectively justified”.
The European Court also noted that the domestic courts had not provided any answers to the applicant’s arguments regarding the reliability of witnesses’ testimony and the authenticity of documents which were crucial to the outcome of the case (§81-84).
As a result, the Court decided that the applicant’s right to a fair hearing by an independent and impartial tribunal had been infringed (§ 85).
Since the Court determined that the rulings had been made as the result of an unfair hearing, it did not examine whether the applicant’s property rights had been infringed, assuming that the domestic courts by means of a fair trial would themselves decide on this.
The Court also found that there had been an infringement of the right to a reasonable time period for the hearings.
Having received such a European Court judgement which clearly demanded that all court rulings in the case be revoked, on 14 June 2007 Maria Ivanovna made the appropriate application to the Supreme Court.
Yet the ruling which was self-evident to everyone was absolutely not clear for the civil chamber of Supreme Court judges. They on 14 March 2008 rejected her application, not even considering it necessary for the applicant to take part. The Supreme Court’s argument was as follows:
“… With its judgement from 3 May 2007 the European Court of Human Rights found the applicant’s allegations that the hearing had been unfair and that there had been an infringement of Article 1 of Protocol No. 1 admissible, and the others – inadmissible. It was found that there had been an infringement of Article 6 § 1 of the Convention… [the Court] judged that the respondent State must pay the applicant … 2, 000 EUR in respect of non-pecuniary damage. ..
… In its judgement the European Court of Human Rights also concluded that the applicant’s complaint (alleging violation of Article 14 of the Convention together with Article 1 of Protocol 1 should be excluded as openly unfounded..”
All correct, but now, attention please…
“… Therefore the European Court of Human Rights came to the conclusion that the rulings of the [domestic] courts had been lawful and well-founded and decided to award the applicant compensation of 2, 000 EUR only over infringement of the requirement for a reasonable period by the Ukrainian courts.
Taking this into consideration, the court rulings in the case cannot be revoked on the grounds presented in Ms Bochan’s application.
Now that’s something. Let’s check what the European Court said in § 85 of its judgement.
85. The Court finds that, having regard to the circumstances in which the applicant’s case was reassigned by the Supreme Court and the lack of sufficient reasoning in the domestic decisions, these issues being taken together and cumulatively, the applicant’s right to a fair hearing by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention was infringed. Accordingly, there has been a violation of Article 6 § 1 of the Convention.
It is incredible that in SUCH a judgement from the European Court which is dealing with a case where the Supreme Court shamelessly foisted its prejudices on lower-level courts, so shamelessly that this gave grounds for doubting the impartiality of the courts, where it is stated that the courts did not answer any of the substantive arguments from the applicant during the course of the domestic hearings, the Supreme Court managed to see recognition that the rulings Maria Ivanovna was seeking to have revoked had been “lawful and well-founded”.
Like any intelligent human being Maria Ivanovna evidently assumed that what had happened was a misunderstanding, a clerical error. After all you can’t assume the Supreme Court judges cannot put letters together to form words, and words together to make up sentences, gauging the sense from those sentences.
On 8 April 2008 Maria Ivanovna Bochan once again approached the “collective intelligence” of the Supreme Court with an analogous application, politely hinting that the ruling from 14 March 2008 was the result of “an incorrect interpretation” of the European Court judgement.
Yet on 5 June 2008 the judges of the civil chambers of the Supreme Court confirmed that the ruling from 14 March 2008 was no mistake and the actual result of the mental activity of the Supreme Court’s collective intelligence.
Franz Kafka smokes nervously in a corner. .. The Court is now in communication with the Ukrainian Government over Maria Ivanovna Bochan’s Application No. 22251 (08).
Arkady Bushchenko, bar lawyer, Head of the Board of the Ukrainian Helsinki Human Rights Union
New Draft Bill on Enforcement of Court Rulings, Same Old Problems
In January 2011 the Cabinet of Ministers tried to submit a draft Law on State Guarantees regarding Enforcement of Court Rulings. The draft law was not adopted due to public pressure over its failure to comply with the Constitution and international human rights standards. Officials have come back with essentially the same bill. The authors of the following comments note that this does not seem to concern the Cabinet of Ministers. The proposed changes, and mainly the powers the bill would give the Cabinet of Ministers to determine the size and scope of benefits at their own discretion, remain as unconstitutional and therefore unacceptable now as back in January.
The draft Law on Enforcement of Court Rulings, No. 9127 from 8 September 2011
Ukraine’s failure to provide adequate enforcement of domestic court judgements has been recognized by the European Court of Human Rights as a violation of the European Convention on Human Rights
The problem has been noted on many occasions by both Ukrainian and international organizations. On 15 October 2009 the European Court of Human Rights first applied pilot judgement procedure with the case of Yuriy Nikolayevich Ivanov v. Ukraine (application no. 40450/04).
“The Court noted that the case concerned two recurring problems - the prolonged non-enforcement of final domestic decisions and the lack of an effective domestic remedy to deal with it. These problems lay behind the most frequent violations of the Convention continuously found by the Court since 2004 in over 300 cases in respect of Ukraine. The present case demonstrated that these problems had remained without a solution despite the clear Court’s case law urging Ukraine to take appropriate measures to resolve those issues”. The systemic nature of the problem was demonstrated also in the fact that just at the beginning of 2010 there were approximately 1400 applications against Ukraine pending before the Court and concerning the same questions. Ukraine is, according to official data, owing 130 billion UAH awarded in court judgements concerning infringements of human rights. It is clear that this figure is continuing to grow since official records suggest that around 60-70 % of domestic court judgements are not enforced.
A Council of Europe Committee of Ministers Memorandum from 2007 entitled Non-enforcement of domestic judicial decisions in Ukraine: general measures to comply with the European Court’s judgements pinpointed the following problems:
Inability to predict proper allocation of public funding, and therefore the lack of the necessary funds - to this day not one State budget has a separate item to allow for the costs of implementing court rulings. There is a separate item for enforcing European Court of Human Rights judgements (in 2009 – 20 million 406 thousand; in 2010 – 41 million 306 thousand UAH);
Lack of effective procedure for enforcing the rulings of domestic courts where it is the State that is in arrears. The bailiffs are trapped in the formulation that the authorities are acting in accordance with the law; public funding is clearly regulated by the law on the budget; and there is no funding for enforcement in the budget;
The lack of effective measures to counter lengthy failure to enforce domestic court rulings or compensation for such non-enforcement;
Failure by the bailiffs to work effectively where the respondent is the State;
Specific field problems, including non-enforcement of domestic court rulings.
The problems remain acute with the State proving incapable of providing adequate public funding for enforcement of domestic court judgements where the State is respondent. Up till now the State Budget has simply not allocated money for enforcement of domestic court rulings in such cases. Expenses for enforcing judgements handed down by the European Court of Human Rights are a separate item in the Budget (2009 – 20 million 406 thousand UAH; 2010 – 41 million 306 thousand UAH).
There is no effective procedure for enforcement of domestic court rulings where the State owes money. In such cases the State Bailiffs usually work on the principle that the State bodies are acting in accordance with the law and that the State Budget clearly sets out areas of spending which don’t include money for enforcing domestic court rulings.
Effective measures are lacking for countering long-standing non-enforcement of domestic court rulings, or for compensation in such cases.
There are also problems linked with the following:
a) the Moratorium on Compulsory Sale of Property from 28 December 2001 which prohibits the sale of property of an enterprise where 25% or more of the shares are owned by the State in order to pay off debt. The Moratorium was imposed in 2001 for an indefinite period.
b) it is impossible to enforce court rulings regarding enterprises of the fuel and energy industry. According to current legislation (and specifically the Law on measures aimed at ensuring the stable functioning of enterprises of the fuel and energy industry, registration of a company in the special register kept by the Ministry for Fuel and Energy entitles the company to deferment of court rulings.
c) failings in the procedure for liquidation of an enterprise or declaring it bankrupt. In many cases this procedure effectively makes it impossible to retrieve wages arrears.
d) enforcement writs cannot be taken out on the property of enterprises at Chernobyl;
e) inefficient organization and management at many State enterprises as well as the lack of systematic and effective control by the State over the activities of such enterprises.
This situation clearly violates the standards for just court proceedings. When individuals owe money any property can be taken away in lieu. When the debtor is a State-owned enterprise, it is virtually impossible to recoup any debt.
Overview of the innovations in the draft Law
Draft Law on State Guarantees regarding Enforcement of Court Rulings No. 9127 envisages special procedure for enforcement of domestic court judgements. It also distributes authority between branches of power in the sphere of compulsory sale of property owned by legal entities. It proposes to cancel the moratoriums on compulsory sale of property owned by State enterprises and enterprises of the fuel and energy industry.
This would entail amendments to the Laws on the Police; on the Prosecutor’s Office, ; on the Status and Social Protection of those who suffered as a result of the Chernobyl Disaster; on the Status of War Veterans and Guarantees for their Social Protection; on the Fundamental Principles of Social Protection of Veterans of Labour and Other Elderly People in Ukraine; On Fire Safety; On the Protection of Plants; On Victims of Nazi Persecution; On the Social Protection of Children of the War; On Pipe Transportation; On the Foundations of Ukraine’s Legislation on Culture; the Mining Law. These are aimed not at bringing in effective mechanisms for funding of socio-economic rights, but an attempt to reduce such guarantees.
These amendments entail cancellation of specified scope of social rights and guarantees set out in special laws (concessions for housing and communal services; the size of remuneration; supplements to pensions, etc) to staff of the police, prosecutor’s office, State Fire Service; medical personnel and cultural workers; miners; victims of the Chernobyl Disaster; war or labour veterans, children of the War; victims of Nazi persecution and others).
This means that such guarantees could in principle not be established at all in future.
No sanctions for the total lack of guarantees are envisaged.
Certain procedure is also introduced which establishes liability of the State for non-enforcement of domestic court judgements.
Specific procedure for enforcement of domestic court judgements
The draft Law contains provisions on establishing special procedure for enforcement of domestic court judgements by retrieving money from a State body, State enterprise or legal entity where compulsory sale of property is prohibited by present legislation.
It should be noted that the establishing of this procedure is one of the important steps towards improving enforcement of court rulings and implements one of the recommendations of the Council of Europe Committee of Ministers.
At the same time, the authors of the draft Law have failed to take into account several important aspects:
1. According to Article 2 of the draft Law, the ban of compulsory sale of property making it possible to apply this Law to legal entities, is a ban on the appropriation of items of real estate and other main means of production which legal entities use to carry out their production-based activities, as well as shares belonging to the State and added to their statutory fund These legal entities thus retain other items of property which cannot be used to enforce court rulings, even where the debt has not been paid in full.
2. Article 3 of the draft Law places responsibility for enforcement of court writs against a State body on the State Treasury Service. It does not however stipulate the order for enforcing court rulings, nor what to do when the court ruling is not enforced in the three-month period set out in paragraph 4 of this Article. Thus a situation where the Treasury states that there is no money in the Budget remains the unresolved problem of the debtor.
3. With regard to stipulating the size of unpaid monies according to court rulings handed down before the Law came into force (Section II Item 4), the short periods for new presentation of writs of execution and recognition of such documents not submitted within these timeframes could lead to the non-enforcement in practice of a considerable number of court rulings meaning the effective violation of Article 124 of the Constitution regarding enforcement of court rulings being mandatory throughout Ukraine.
Furthermore, the European Court of Human Rights stresses that the failure to seek enforcement of a court ruling cannot cancel the court ruling itself. In one of the cases against Ukraine a commercial firm could not obtain the proper enforcement of a court ruling with the State as respondent because their requests to the Bailiffs’ Service constantly met with formal excuses for not enforcing the ruling. The Court in this case also found that Ukraine had violated the right to a fair trial (Article 6 § 1 of the Convention).
It would be logical to stipulate that the writ remains in force until the debt has been repaid or the obligations removed in some other manner. At present however, the State Bailiffs close proceedings if there is no money forcing the creditor to apply to the Bailiffs many times over one and the same court ruling. In view of the above a refusal to enforce a domestic court ruling on the grounds that the new time limit for presenting the writ documents could be found by the European Court to be a violation by Ukraine of the right to a fair trial.
Violation of the principle of division of powers in distribution among branches of power of authority regarding compulsory sale of the property of legal entities
1) The draft Law passes authority for establishing the size of socio-economic guarantees to the Cabinet of Ministers which will at its own discretion and from the point of view of the State’s financial possibilities, stipulate who is worthy of such guarantees and to what extent. According to Article 92 § 1.1 and 1.6 of the Constitution “human and civil rights and freedoms, the guarantees of these rights and freedoms, the main duties of the citizen, the foundations of social project …” are determined solely by Ukrainian laws. These powers therefore belong to the Verkhovna Rada.
The Cabinet of Ministers is authorized to take measures to ensure civil and human rights and freedoms and the fulfilment of policy in the sphere of social protection (Article 116 Items 2 and 3 of the Constitution). The Cabinet of Ministers is not entrusted with the power to establish the size of social benefits and standards. However the draft law “legalizes” interference by the Cabinet of Ministers in a sphere which is exclusively the domain of parliament, this being in breach of Articles 6 § 2; 8 § 2; 19 § 2; 85 § 1.3; 92 § 1.6 of the Constitution.
Whereas the procedure for providing social guarantees and benefits falls within the competence of the Cabinet of Ministers which it exercises through subordinate legislation, the rights to social benefits and their size must be determined solely by law, that is, by parliament.
2) It is proposed through amendments to Article 20 of the Law on the Cabinet of Ministers to provide the latter with the authority to prohibit the compulsory sale of the property of legal entities. From the text it is not clear for what purpose, in what cases and with regard to which legal entities this authority would be given to the Cabinet of Ministers.
Articles 113 and 117 of the Constitution state that the Cabinet of Ministers is guided in its activity by the Constitution and the laws of Ukraine, as well as by the acts of the President of Ukraine and issues resolutions and instructions solely within the framework of its competence. The Cabinet of Ministers exercises its authority through issuing normative acts (in the form of resolutions) as well as actions on organizational and other ongoing issues (in the form of instructions). Should the new change to the powers of the Cabinet of Ministers be introduced, bans on the compulsory sale of the property of legal entities will be at by-law level.
It would be advisable to consult the legal position of the Constitutional Court as seen in its judgements. The Constitutional Court, for example, has found that in accordance with the Constitution, the State in equal measure protects all forms of property, and each of them can have their specific features linked with the legally stipulated conditions and grounds for property rights arising or being terminated. This legal position from the Constitutional Court is based on the fact that it is solely through Ukraine’s laws that the legal property regime is set out with this based on the constitutional provisions specified in laws which can also contain certain specific features of the legal regime of this or that form of property. One of such specific features of the legal regime of State property is the moratorium on compulsory appropriation of an enterprise’s property.
The proposal therefore to legislate the right of the Cabinet of Ministers to prohibit the compulsory sale of the property of legal entities clashes with the constitutional precept that the legal regime of ownership is determined exclusively by the laws of Ukraine which also establish specific features (Article 92 § 1.7 of the Constitution). Having received this power, the Cabinet of Ministers will exercise it at a by-law level which is not in keeping with the principle of the priority position of laws in the system of normative legal acts, nor with the principle of division of powers and the requirement on State bodies to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine. (Article 6 § 2 and 19 of the Constitution).
3) The proposal is also not in line with the constitutional right to court defence (Article 55 of the Constitution). The European Court of Human Rights has stressed that the right to a fair trial would be illusory if a country’s legal system allowed a final, mandatory court ruling to remain unenforced to the detriment of one of the parties; enforcement of a ruling handed down by any court must be viewed as an inalienable part of a “fair trial”.
Furthermore, according to the Convention on Human Rights, the right to a fair trial contains both institutional elements (requirements regarding the court as an institution – independent, impartial, created on the basis of the law), and procedural elements – minimum requirements regarding court examination (open to the public; ensuring the rights of parties to the court hearing as determined by procedural laws – adversarial procedure; reasonable timeframe; enforcement of the final court ruling, etc).
The powers which the draft Law proposes to give the Cabinet of Ministers on prohibiting the compulsory sale of the property of legal entities (Item 3.16 of Section II Final and Transitional Provisions) can be seen as legislative permission for the executive to interfere in the sphere of the judiciary which runs counter to the nature and tasks of the executive branch of power (organization of enforcement of laws and not control over the correctness of court rulings). Particularly since the said court rulings will obviously largely concern State-owned property and in these cases the Cabinet of Ministers will be an interested party.
Removal of the moratorium on the compulsory sale of property
Draft Law No. 9127, like the draft law in January, proposes to declare void the Law on Imposing a Moratorium on Compulsory Sale of Property. It would also make amendments to the Law on Measures aimed at Ensuring the Permanent Functioning of Enterprises of the Fuel and Energy Industry. These would exclude the provisions enabling such enterprises from getting compulsory writ executions stopped.
These measures are vital in resolving another systemic and long-standing problem with respect to non-enforcement of domestic court judgements.
The lack of the necessary funding for enforcement of court rulings
One of the biggest problems is the State’s lack of financial resources to enforce rulings where the State is respondent. This systemic problem is closely linked with the complicated system of benefits and social payments.
Together with support for the most socially vulnerable groups, the system of social protection and social security envisages a considerable number of benefits and social guarantees on professional grounds. According to current legislation there are presently around 120 categories of people receiving benefits with only 45 categories having the right to benefits on social grounds, with 57 work or profession-based.
The introduction of benefits, social and compensatory payments in a number of cases goes beyond the framework of the constitutional standards for ensuring socio-economic rights since at the level of laws, the list of categories of those receiving various forms of social protection is considerably broadened. This leads to a diluting of the State’s social function and loss of targeted social protection as set out at the level of the Constitution.
Around 15 million Ukrainian citizens are, according to current legislation, entitled to some form of benefit. Various estimates put the cost of benefits as declared in current legislation at between 3.8 and 5.8 billion USD per year, although only a small part of this amount is actually financed. This results in a situation where benefits and social guarantees are declared, but not financed, and a huge number of court rulings regarding non-enforcement by the State of its obligations. These numerous rulings are not enforced since the State does not allocate money for their enforcement in the annual budget.
Due to this situation remaining unresolved, the debt arrears are mounting year by year. On the other hand, such a situation is economically convenient for the State. With several billion dollars underpaid every year, only a small number of the people affected will turn to the courts to get their payments. An even smaller number will go through all the court levels and then insist on enforcement of the ruling. In fact, by way of the State’s official debt, this is less than 20% of the amount which it would have paid had all payments stipulated by legislation been honoured. The State thus saves on over 80% of such expenses. If one bears in mind that up till recently, the State did not show great will to enforce court rulings, the actual expenses incurred by the State were minimal although that violated citizens’ socio-economic rights.
Division of State expenditure on ensuring socio-economic rights and privileges
There is no division in Ukrainian legislation into those which ensure certain socio-economic rights guaranteed by the Constitution, and those which provide certain privileges linked with particular merits or position, which are not guaranteed by the Constitution.
This explains the complicated and uncoordinated nature of State regulation regarding provision or cancellation of certain privileges, while at the same time carrying the threat of restriction or reduction of the actual scope of socio-economic rights which is prohibited by the Constitution.
Draft Law No. 9127 provides a vivid example of how the above-mentioned failings in legal regulation of social rights and privileges determine the difficulties in resolving the problem of a lack of funding to enforce court rulings where the State is respondent.
To resolve the problem, the draft Law proposes making amendments to the Laws on the Police; on the Prosecutor’s Office, ; on the Status and Social Protection of those who suffered as a result of the Chernobyl Disaster; on the Status of War Veterans and Guarantees for their Social Protection; on the Fundamental Principles of Social Protection of Veterans of Labour and Other Elderly People in Ukraine; On Fire Safety; On the Protection of Plants; On Victims of Nazi Persecution; On the Social Protection of Children of the War; On Pipe Transportation; On the Foundations of Ukraine’s Legislation on Culture; the Mining Law of Ukraine. These are aimed not at bringing in effective mechanisms for funding of socio-economic rights, but an attempt to reduce such guarantees.
These amendments entail cancellation of specified scope of social rights and guarantees set out in special laws (concessions for housing and communal services; the size of remuneration; supplements to pensions, etc) to staff of the police, prosecutor’s office, State Fire Service; medical personnel and cultural workers; miners; victims of the Chernobyl Disaster; war or labour veterans, children of the War; victims of Nazi persecution and others).
This is done by handing the authority for establishing the size of socio-economic guarantees to the Cabinet of Ministers which will at its own discretion and from the point of view of the State’s financial possibilities, stipulate who is worthy of such guarantees and to what extent. Given the lack of funding for these benefits even at the present time when the law clearly establishes their size and everyone has the opportunity to defend their rights in court, it is entirely clear that the way out of the situation proposed by the Cabinet of Ministers is a means of avoiding liability for not implementing the socio-economic rights and their guarantees stipulated by law.
Procedure whereby the size of these benefits is determined and the benefits provided at the decision of the Cabinet of Ministers is a violation o the principles of the rule of law – the principle of proportionality, meeting legal expectations, legal certainty. The adoption of by-law decisions in Ukraine is not accompanied by sufficiently open procedure and accessibility for the wider public whom the decisions affect. The proposed procedure would also run counter to the requirement set out in the Law on State Social Standards and State Social Guarantees that the fundamental State guarantees which also include the size of State social assistance and other social payments are established by laws (Article 17 of the said Law).
It should be stressed that any review of the conditions for providing social protection in Ukraine must start out from the constitutional norms stating that human rights and freedoms are inalienable and inviolable (Article 21) and that the content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force (Article 22).
Furthermore, the legal force of acts issued by executive bodies is considerably lower than the norms of laws since the Constitution stipulations that State bodies and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine (Article 19 § 2). Transferring authority to define the conditions for social security to the level of bodies which are obliged to ensure enforcement of legislative decisions will lead to the disruption of a stable and foreseeable system of civil rights and reduce the guarantees of their implementation.
We are therefore effectively talking about the revoking of socio-economic rights and guarantees due to the impossibility of defending these through the courts. By depriving people of the right to court defence, the State is depriving its citizens of the rights themselves, since they have now turned into a fiction.
Given the content of the provisions proposed, it is important to remember the frequent objections expressed by the Constitutional Court over initiatives to revoke, suspend or otherwise review the rights of citizens in the social sphere provided by laws.
The Constitutional Court has stated, for example, that in affirming and ensuring citizens’ rights and freedoms, the State has, through separate laws, established certain social benefits, compensation and guarantees which are a component of the constitutional right to social protection and the legal means for achieving this right. Therefore, in accordance with Article 6 § 2, they are generally mandatory and must be observed equally by State bodies and bodies of local self-government and their officials. Failure by the State to fulfil its social obligations regarding particular people places them in an unequal position and undermines the principle of individual trust in the State which therefore leads to violation of the principles of a social, law-based State.
It should be stressed that in envisaging the possibility of a “revision” of the rights of people, for example, those who suffered as a result of the Chernobyl Disaster, the legislators clearly stipulated the procedure for changing the benefits and compensation set out in the Law on the Status and Social Protection of those who suffered as a result of the Chernobyl Disaster. Article 71 of this law stipulates that the force of its provisions cannot be suspended by any other law except a law making amendments to this law.
Taking into consideration the above, as well as the problems existing in the legal fulfilment of social guarantees and privileges, we would note that the path chosen by the Cabinet of Ministers to deal with the State’s lack of the necessary funds for enforcing court rulings is more directed at restricting socio-economic rights than at actually resolving the problem.
The State’s responsibility for lengthy failure to enforce court rulings
Draft Law No. 9127 proposes establishing a mechanism for compensation in the case of long-term non-enforcement of domestic court rulings where the respondent was the State. Article 5 of the draft Law states that if the State Treasury Service has not within a period of three months provided the money awarded by a court, the person awarded the money should be paid compensation in the form of 0.3% of the annual interest on the unpaid amount. The money will be taken from a budgetary programme for ensuring enforcement of court rulings.
In general the introduction of this mechanism is a fairly positive step towards improving enforcement. The amount of compensation, however, is low and this could prove a significant impediment to its efficient application.
Even if we compare this level of liability with the level of inflation which in 2010 for the year stood at 9.1%, it becomes clear that the threat of liability will not serve as a stimulating factor for timely enforcement of court rulings. Furthermore, the State will find it more profitable to pay this minimum amount of compensation than enforcement the court ruling.
Even in not paying the amounts awarded by the European Court of Human Rights, the State must pay a bigger amount than the draft law envisages. The amount is taken from the threshold lending rate of the European Central Bank plus three percent from when the three month period for voluntary enforcement of the ruling ended up till the moment when the amount is fully paid up.
Clearly the proposed amount in compensation is, through its pitiful size no compensation, and will therefore not act as an argument for paying the amounts. More likely the opposite – refusal to pay off the money owed will be seen as economically sensible since the value of such funds on the market will be considerably greater.
The draft Law on State Guarantees on Enforcement of Court Rulings No. 9127 contains significant flaws standing in the way of achieving its stated objective.
An undoubtedly positive aspect of the draft law can be seen in certain specific measures for resolving the problem of non-enforcement of domestic court judgements. This includes the introduction of special procedure for enforcement of court rulings where the respondent is the State; the removal of the moratorium on compulsory sale of property; the introduction of a mechanism of compensation for long-term non-enforcement of court rulings. However, as can be seen from the above analysis, there are serious flaws in implementing most of these measures.
There are also provisions of the draft law which are aimed at reducing the level of social guarantees and could lead to a serious reduction in socio-economic rights.
The draft Law also contains norms which in our view are in breach of the Constitution since they flout the principle of division of powers. For example, the Cabinet of Ministers is vested with powers which belong to parliament, namely in determining the provision and size of rights established by law.
Many important issues highlighted by the Council of Europe Committee of Ministers as systemic and needed urgent reaction are not addressed by this draft Law. For example, the ineffectiveness of the Bailiffs’ Service, the failings of the system of management of State enterprises; problems with legal regulation of enterprises’ bankruptcy; the lack of a legislative mechanism for compensating damages cause by criminal actions by insolvent public officials and others, etc.
The main issue of financing enforcement of rulings already passed by domestic courts in cases where the State is respondent also remains open. The same applies to those rulings which will be passed in future with respect to cases presently under examination. We are speaking here of thousands of rulings which, through their non-enforcement, will sooner or later end up at the European Court of Human Rights. No attempt is even made to resolve the issue of present arrears through recognizing such debt that of the State and its possible restructuring with payment in future years as has on a number of occasions been done with payments of assistance to teachers. No variants are suggested for resolving this issue.
In view of the failure of the draft law to comply with the Constitution and international standards for human rights protection, we recommend that it be rejected and resubmitted to parliament after being reworked.
Ukrainian Helsinki Human Rights Union
Freedom of expression
Ukrainian Political Tensions resurface over irreverent soccer chants
Ukrainian police attempt to confiscate controversial t-shirts and other merchandise on sale in Kyiv’s Independence Square.
Long-simmering political tensions in Ukraine have resurfaced again recently, as soccer fans in Kyiv have taken to taunting their eastern countrymen in ribald, irreverent verse.
Off-color versions of terrace chants have been heard at Dinamo Kyiv’s ground in the past few weeks with home fans sarcastically "thanking" residents of the eastern coal-mining Donbas region for a "president-pederast" in reference to President Viktor Yanukovych, who hails from Donetsk Oblast.
In other chants, they thank Donbas for "prosecutors and judges, " for "trading Crimea for a discount on gas, " for "golden toilets, " and for "plagiarism."
As the "Thank You, Residents of Donbas" meme has grown in popularity, a Kyiv business called ProstoPrint has begun producing T-shirts and other memorabilia featuring the slogans.
In recent days, the firm has been subjected to searches by law enforcement officials, some of its property has been confiscated, and its employees have been called in for questioning.
Tensions rose another notch on September 15 when some 1, 000 people gathered in Kyiv’s central Independence Square for what ProstoPrint described as a charity street market.
The company intended to sell the controversial products to raise money to cover the expenses incurred as a result of the police attention and promised to use part of the proceeds to support "political prisoners" in Ukraine.
However, scuffles broke out in the crowd and police briefly confiscated many of the items on offer.
"At first the city authorities approved the event as a charity market, " says ProstoPrint Director Dmytro Oleinykov. "But then they called and said that we can display the goods, but we cannot sell them. They were only authorizing a mass gathering "
"What their motivation was -- I can’t say. We received anonymous threats both by telephone and in social media. Not about the Independence Square thing, but generally that we are bad people and are getting involved in something that is none of our business."
Oleinykov also alleged that ProstoPrint employee Halyna Redko had been threatened with rape by police interrogators and said some of the proceeds from the September 15 sale were intended to provide her with legal support.
No injuries were reported during the fisticuffs. Oleinykov told RFE/RL that he had been informed by a police official during the market that his goods were being confiscated because they lacked proper documentation. Oleinykov said the documents had been seized by police during an earlier raid.
According to police spokesman Volodymyr Dmytrenko, the police are interested in ProstoPrint only because of allegations the firm is illegally reproducing the logo for the 2012 European football championship, which will be jointly hosted by Ukraine and Poland.
"Following an inquiry by the official representatives of UEFA [the Union of European Football Associations] regarding the distribution of symbols from the Euro-2012 tournament without licensing, we searched the firm, " he says. "A criminal case has been opened following the discovery of products with the symbols."
ProstoPrint says responsibility for possible copyright infringement lies with those who place an order, and Oleinykov says he suspects that police ordered the UEFA T-shirts themselves as a provocation.
UEFA representatives confirmed to RFE/RL that they do monitor alleged copyright infringement regarding the Euro-2012 symbols, but declined to discuss specific cases.
Authorities ’Reacting Out Of Fear’
Regarding the alleged threat of rape and other complaints, Dmytrenko added that the firm is free to make any complaints regarding the police to the Prosecutor-General’s Office according to established legal procedures.
Andriy Korenevsky, an organizer of a Dynamo Kyiv fan’s association, maintains that members of his group have been pressured by police since the "Thank You, Residents of Donbas" chanting began.
"They don’t ask us directly about the slogan, " he says. "They call people in, interrogate them, look at the contacts in their mobile phones. They call this ’preventive work.’ You could view this as pressure that is being applied because of the antipresidential slogans."
Kyiv-based political analyst Kostyantyn Matvienko believes the authorities are reacting to the campaign out of fear.
"The authorities are reacting reflexively, " he says. "They can’t ignore it -- they are nervous. Why? Because they have nothing to offer society. Living standards are falling, and the unified quality of the authorities is eroding."
"Even apolitical gatherings are dispersed. Because they are obsessed with every manifestation of popular discontent."
with contributions from Robert Coalson in Prague
Access to information
What Public Information Act?
A survey carried out by the Democratic Initiatives Foundation has found that over half the population (52%) know nothing about the Law on Access to Information voting for the Party of the Regions feel little need to make formal information requests, unlike supporters of Tymoshenko;s BYUT or VO Svoboda;
Only a small percentage = 13% - had ever sent information requests to the authorities or other state organizations, , while a little more than a third (36.5%) of those who had sent information requests had received a substantive response. Almost half (45.5%) had received answers which were merely fob-offs, while 18% had received no answer at all.
The main reason why people had not sent information requests was that they didn’t see a need (62%). However 23% had not sent them since they didn’t expect to get a satisfactory response.
Over half the population (52%) know nothing about the adoption of a Law on Access to Information; 36.5% had heard something about it, but did not know exactly; only 11% knew the basic provisions of the Law. People in the South knew least (64%) with this figure in the Crimea reaching 89%.
Almost half (48%) are quite sceptical about the chances of the Law making the authorities more transparent and less corrupt.
Only 3% had already sent information requests, with 1.4% having already received answers. Another 8% were planning to do so. Willingness to send them did not depend on age, gender, level of education. It was highest in the North, lowest in the East, and was influenced by previous experience of sending such requests for information.
The survey was carried out between 10 and 17 August by the Democratic Initiatives together with the Razumkov Centre. Respondents were selected to be representative of the country, and the margin of error no greater than 2.3%, with the likelihood of 0.96%
Abridged from the press release at http://dif.org.ua/ua/press/joeroweihop
Freedom of peaceful assembly
Say NO to restrictions on peaceful assembly!
There has been outrage over the proposal by the Kyiv City State Administration to seriously restrict peaceful assembly near State institutions. Nor have the reassuring noises from public officials regarding the official scope of the proposed changes allayed fears. The following is the response from the Svidomo Bureau of Journalist Investigations.
At the end of August journalist Dmytro Hnap and a colleague were detained in the Dniprovsko-Teterivsk forest area where President Yanukovych goes hunting. The reason was the lack of a life jacket in the rubber boat they used to get to the zone with its sumptuous buildings.
On 6 September the offices of the ProstoPrint company were searched by the Department for Fighting Organized Crime [UBOZ] and property seized. The company, run by Denis Oleinykov, printed T-shirts with the slogan “Thank you residents of Donbas”, the slogan thought up by fans of the Kyiv football team Dynamo. The official excuse for the seizure – forging of souvenir products for Euro 2012.
Now the authorities are proposing to adopt Regulations which will restrict mass-scale public events. As reported, the Kyiv City State Administration has posted the draft Regulations on their website.
Why is this important?
The initiative appeared on the day when veterans of the Afghanistan War stormed parliament, and Denis Oleinykov spoke about how those in power would soon have a hard time. Perhaps you already protest on the street, maybe you’ll go out there tomorrow. The Kyiv City State Administration’s proposal will create a huge number of obstructions.
What is the Mayor’s Office proposing?
Firstly, it will only be possible to hold a mass event after agreeing it with the Mayor’s Office. Even information about it can only be circulated after the written consent from officialdom.
Secondly, you can’t stand closer than 100 metres from a State institution. And that is allowed only between 9.00 and 22.00.
Thirdly, you have to obtain permission for any tent, stand, flag or banner.
And the application must be submitted 10 days before, together with the scenario and a conclusion that Kyiv residents will support the event. Such a study needs to be carried out by a municipal enterprise at the organizers’ expense. You also need to add another five or so documents to the application.
Why has the Mayor’s Office done this?
Svidomo spoke with Marina Khonda, Head of the Central Department on Internal Policy and Public Liaison of the KCSA. She said that she had initiated the new rules to systematize the norms which are in any case in force for loud entertainment events. And these rules will only apply to commercial organizations which have advertising actions, concerts and film clips. They will not affect news journalists and civic organizations.
She said that the Provisions do not extend to meetings, demonstrations etc, and that this is stated in Item 1.4. It is indeed, and the Head of the KCSA Oleksandr Popov told Channel 5 that he would not allow mass events to be restricted, and that the Administration would not sign regulations which restrict democratic principles.
The Regulations say that they apply only to mass events held in accordance with the Law on Freedom of Conscience and Religious Organizations, public services, religious rites, ceremonies and processions.
Experienced human rights activists have actively discussed the draft and see it as potentially dangerous. Even now when the law demands only notification of a planned meeting and this can be minutes before it is to begin, the police, facing pressure from higher up, look for something to quibble over.
Svidomo experienced this on 9 September when a police officer tried to stop an activist from erecting a child’s tent near the Mayor’s Office in protest at the move of the History of Kyiv Museum without documents confirming that the building was safe. The police officer demanded a permit for the play tent, calling it a “small architectural form”.
How to protect your rights
1. Up till 12 October you can offer your comments and suggestions to the Kyiv City Council. You can refer to:
a) Article 39 of the Constitution on Peaceful Assembly. That simply says that people must warn of a planned gathering without stipulating when.
b) Article 92 § 1 of the Constitution which stipulates that only laws of Ukraine determine rights and freedoms, guarantees of these and citizens’ main duties. This draft is not a law.
c) Article 24 of the Law on Information according to which only a law or court order can obstruct the circulation of information in the media. These regulations seek to make circulation possible only after written permission has been obtained.
2) Circulate information as widely as possible. While the Regulations say they don’t affect meetings, etc, there is a danger that the police or officialdom will twist this.
Shocking statistics in Ukrainian penal institutions
This year the number of people held in SIZO [ore-trial detention centres] and penal institutions rose by around 8, 500 inmates. Over the year there was also a 45 percent increase in the number of deaths. Human rights workers speak of an “intensification in the penal policy of the state”,
The trend towards an increase in the population of penal institutions and in the number of deaths there reflected in State Penitentiary Service figures has been seen for the last two years. According to Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group, if the Ukrainian justice system maintains this trend much further, there will soon be a shortage of places in penal institutions as there has long been in SIZO, at least in Simferopol, Donetsk, Kyiv and Kharkiv. “There are more people inside than is necessary and not when it’s necessary. The courts still oblige the investigators who want to question witnesses when it’s convenient, don’t want to apply bail, release on a guarantee; a signed undertaking not to abscond.”
Last year, according to the State Penitentiary Service, 808 people died in places of confinement, while just in the first half of this year there were 601, An increase of 45% in the number of deaths and 22% in the number of suicides is seen by Oleksandr Syrota, a Kharkiv human rights worker, as being clearly due to inadequate food with 6-8 UAH being spent on this per person (less than 1 EUR); an increase in the number of drug addicts and rapid spread of tuberculosis, HIV/AIDS, hepatitis. He says that he has only heard of preventive treatment against tuberculosis, not seen any. He believes it possible that prisoners are being given medication beyond its sell-by date. “Timely provision of quality medical care is virtually an exception from the rules. We have many complaints from prisoners”, Yevhen Zakharov says. He adds that the penal service often fosters the spread of infection. He points out that there is an order with a list of illnesses when seriously ill people may not be kept imprisoned. Some should have been released but are not.