“Prava Ludiny” (human rights) monthly bulletin, 2012, #04
Tymoshenko goes on hunger strike after alleged beating Ivashchenko moved without explanation to prison cell Platini’s Shame: Calls from Germany for Tymoshenko’s release before Euro 2012 The right to a fair trial
Establishing the Rule of Law in Ukraine: Building a Modern Society Social and economic rights
Ukrainian President’s millions in book fees raise eyebrows The right to health care
Medical reform harmful to both doctors and patients Ukrainians fork out huge amounts on “free medical care” Human rights protection
Candidate for Ombudsperson holds consultations with human rights organizations News from the CIS countries
On the situation in Belarus New campaign highlights Azerbaijan rights abuses ahead of Eurovision
Politics and human rights
Tymoshenko goes on hunger strike after alleged beating
Former Prime Minister and opposition leader, Yulia Tymoshenko asserts that she was kicked in the stomach when being taken to a Ukrainian hospital by force last week. Ms Tymoshenko refused treatment, saying that she believed she could be poisoned or infected, and demanding to see the team of German doctors who previously examined her. She writes that she has been on hunger strike since 20 April.
Her statement is given here in full (taken from her official site)
Yulia Tymoshenko: I started to defend myself as I could and got a strong blow in my stomach through the bed-sheet
On Friday, 20 April, 2012, after the end of the working day, conclusions of the German doctors, Professor Karl Maks Einhäupl and Norbert Haas, were conveyed to me. In the concluisons, it was said that I would be unable to restore my health in the hospital proposed by Ukraine’s government.
The reason is not in doctors - I trust Ukrainian doctors and respect them deeply because I know about the difficult conditions they work in – and not in the equipment of the hospital, as it in line with standards. The reason is the general situation of every-minute violence and cruel treatment organized for me by the current president of Ukraine.
After having received conclusions of the German doctors I informed the colony’s head in writing, and supervising prosecutor and deputy minister of health verbally that, taking into account the contents of the conclusions, I was unable to go to the hospital until I meet with my defense counsel. We agreed that the transfer to hospital would take place on Monday after I talk to Serhiy Vlasenko.
But around 21:00, my neighbour was made to go out of the prison cell, and later three sturdy men came into the cell. They approached my bed, threw a bed-sheet over me and began to drag me off the bed three together applying brutal force. In pain and despair I started to defend myself as I could and got a strong blow in my stomach through the bed-sheet, they wrung my arms and legs, lifted me and dragged in the bed-sheet into the street. I thought these were the last minutes of my life. In unbearable pain and fear I started to cry and call out for help, but no help came. At some moment I fell unconscious because of awful pain and came back to consciousness in a hospital ward. Being extremely stressed, I refused to talk to anyone until I see my defense counsels. The next day I refused to take food. But there was no meeting with my defense counsels. I think about the helplessness and hopelessness every person feel today when they confront with the government’s violence in all its manifestations. When they started to apply brutal force to me I imagined the despair of the defenseless people being cruelly, brutally beaten and sometimes even killed by policemen at numerous prisons, pre-trail detention centers, militia stations, colonies, in basements of the modern SBU-NKVS. When you are within four closed walls, fully-isolated from the world, when butchers with distorted from fury faces "take care" of you, when you do not know if this is the end of your life, only then you realize clearly what country we have built over 20 years of our independence, and you understand that we do not have the right to leave it to our children in this inhuman condition.
I stopped taking food on 20 April with one aim – to draw attention of the democratic world to things happening in the centre of Europe, in the country named Ukraine. The question is not the destiny of modern political prisoners: we are ready to go our way, whatever it may be, decisively and with dignity. The problem is different – the problem is to understand immediately that the president of Ukraine is steadily and pedantically building a concentration camp of violence and lack of rights in the great and European Ukraine, supplemented by an unprecedented enrichment of the ruling family and its entourage by means of misappropriating state resources. We must realize without delay the tragic state of affairs and stop this immediately using all Ukrainian and international means and influence. If we lose time we will get a new Libya or Syria in the centre of Europe, and then it will be late to extinguish the fire.
I beg the democratic world and all healthy forces within Ukraine to start acting immediately and with joint efforts to eliminate this all-European threat. I say eliminate because conservative treatment is already impossible in this case.
I propose the following plan consisting of two points: first, to commence public international investigations into all corruption dealings of the Yanukovych family and its entourage involving international transaction and registering of illegally obtained assets on the territory of foreign states.
I publicly ask all honest journalists, leaders of civil movements, officials, representatives of law-enforcement agencies and other people who are not indifferent to convey me materials of journalist and other investigations that clearly prove international character of the crimes committed by Ukrainian authorities. I publicly appeal to official governments of the countries in jurisdiction of which our rulers have committed their corruption crimes with a request to conduct unbiased independent investigations into these crimes and to prosecute the guilty people. We must begin the Great Cleaning of the country now.
Second, we must do everything possible to remove the Yanukovych regime with all its metastasises in the parliamentary elections, without any revolutions and in peaceful manner. In the nearest time, I will publish an appeal to all citizens of Ukraine explaining how we could do this. If in the parliamentary elections the people of Ukraine are prevented from removing the government it means that we will have to start a new peaceful revolution. The one thing we must not do is to be a silent herd taken to the slaughter. I will oppose this till I am alive. And I know that you will not let them humiliate Ukraine like this…
Your Yulia Tymoshenko
Ivashchenko moved without explanation to prison cell
Valery Ivashchenko (photo: UNIAN)
The three most prominent former government officials sentenced to widely criticised prison terms have now all been returned to prison. Their medical treatment coincided with the European Court of Human Rights’ Public Hearing in the case of Lutsenko v. Ukraine on 17 April.
Former Acting Defence Minister in Yulia Tymoshenko’s government, Valery Ivashchenko has been moved back from the medical unit of the SIZO [detention unit] to an ordinary cell. His lawyer, Boris Nechyporenko told UNIAN that he had only learned on Monday that his client had been moved back last Friday. He said that he had been shocked to learn that after being taken to the Pechersky District Court to read the protocol of the entire trial, he was not returned to the medical unit where he had been undergoing treatment on doctors’ advice, but taken to a normal cell. He was not even allowed back to the medical unit to get his things, which were brought to him late that evening.
The State Penitentiary Service later on Monday claimed that Mr Ivashchenko had been returned because he had “completed his treatment”.
On 13 April the US Government issued a statement in which it said that “With respect to the conviction April 12 of former Acting Defense Minister Ivashchenko, we are deeply disappointed in this latest example of selective justice in Ukraine and call for his release, particularly given the state of his health after 18 months in pre-trial detention.”
Valery Ivashchenko was arrested in August 2010 and charged with having, in November 2009 while Acting Minister of Defence abused his position by signing a plan to sell the Feodosia Marine Engineering Works which was property of the Ministry of Defence. More details can be found in the Second Preliminary Report by the Danish Helsinki Committee on Human Rights, where Valery Ivashchenko’s case is one of those examined.
It is worth noting that Mr Ivashchenko was not the only former government official whose need for medical treatment was suddenly found to have disappeared. Former Prime Minister, Yulia Tymoshenko was also moved to a hospital and then, during the weekend, returned to the Kachanivska Prison Colony.
Yury Lutsenko, Former Interior Minister was moved late last week back to the SIZO after two weeks of medical treatment. Lutsenko returned to prison His wife Iryna asserts that her husband’s two weeks of treatment in hospital ended as soon as the European Court of Human Rights public hearing in his case was over (on Tuesday) and the international experts left Ukraine. She points out that the authorities know that Lutsenko’s defence alleges violation of Article 3 of the European Conveniton in connection with the failure to provide timely and proper medical care, this constituting inhuman and degrading treatment.
Ms Lutsenko says that her husband has been returned to the SIZO with medical conditions, namely Digestive Tract Varicose Veins, the beginning stages of cirrhosis, confirmed sugar diabetes and viral hepatitis.
On Monday a preliminary hearing into the third charge against Yury Lutsenko which was unexpectedly separated from the other two a few months ago was held in Kyiv. The court refused to dismiss the case (over supposedly illegal surveillance) and set the first hearing on the substance of the case for three weeks from now.
Platini’s Shame: Calls from Germany for Tymoshenko’s release before Euro 2012
Germany’s Human Rights Ombudsperson Markus Lönung has railed the Head of UEFA for taking no action over the Tymoshenko case as the former Prime Minister and opposition leader is returned to prison. He told the newspaper Frankfurter Allgemeine Sonntagszeitung that the head of UEFA, Michel Platini had kept his head low where the subject of Ukraine’s political issues whereas, the German Human Rights Ombudsperson says, he should have used all UEFA’s power to ensure that the seriously ill Ms Tymoshenko was released from prison before Euro 2012 begins.
Politicians have expressed fears that President Yanukovych will use the championship to try to present himself in a positive light. Elmar Brok, MEP, says that the German Football Union and UEFA should understand that Mr Yanukovych must be given the stage and that the event must not legitimize crushing the opposition.
Volker Bek, Head of the Greens in the Bundestag called on the German Chancellor to make a point of visiting Ms Tymoshenko in prison before going to the stadium, and called for vocal criticism from sportspeople, officials and the German Government.
Michel Platini has rejected criticism saying that UEFA is not a political organization. He called the championship first and foremost a big festival during which contacts are established and developed, discussions held and views exchanged at all levels.
The former Prime Minister returned to jail on Sunday after she refused treatment for severe back pain at a state-run hospital.
"First Tymoshenko was secretly taken to a hospital at night on Friday… and then on Sunday she was suddenly returned to jail, " her political party Batkivshchyna said in a statement. Tymoshenko’s lawyer, Serhiy Vlasenko called the back-and-forth shuttling "absurd."
Tymoshenko previously said she did not trust any state-appointed doctors. She was taken to a hospital in Kharkiv belonging to the state-owned railway company, located in the same city as her prison.
German doctors who examined Tymoshenko for her herniated disc recommended urgent treatment in a specialized clinic. They inspected the Kharkiv hospital where she was briefly moved, but have made no public statements.
The State Penitentiary Service said that Tymoshenko was moved back to prison Sunday because she "categorically" refused treatment at the clinic.
From a report at Deutsche Welle Photo below of Kachanivska Prison Colony
The right to a fair trial
Establishing the Rule of Law in Ukraine: Building a Modern Society
Speech by U.S. Ambassador John F. Tefft to the Students of the National University of Kyiv-Mohyla Academy School of Law
National University of Kyiv-Mohyla Academy School of Law
April 19, 2012
“At his best, man is the noblest of animals; separated from law and justice he is the worst.” Aristotle wrote this line over 2, 300 years ago, and it remains relevant as we gather here today to discuss the importance of the rule of law in a successful, modern society. One interpretation of Aristotle’s statement would be that, in the absence of rule of law, there is no society – at least not one that is truly civilized.
One of the hallmarks of the 21st Century is that, at least in terms of perception, the world is getting smaller. Individuals throughout the world are now much more able to observe instantly new developments in diverse societies. Throughout the world we are seeing individuals stand up and proclaim that they would prefer to live in a democratic society governed by a genuine rule of law – a place where no man or woman is above the law and all leaders are accountable. I would suggest that the health of a democratic society largely corresponds to the degree to which it is ruled by its own laws. Today I would like to focus on a few distinct themes:
first, that the rule of law is a prerequisite to a democracy, ·
second, that without a reliable justice system, economic development opportunities in a globalized world will be severely limited, ·
third, that today Ukraine stands poised to adopt meaningful reform, if it chooses to do so, and, ·
finally, what this all means to you as Ukrainian law students.·
You may well ask, what do I mean when I invoke “rule of law”? As a diplomat, this has been a major theme of my work for over 40 years. A serviceable definition could be taken from an explanation of the concept found in a 2004 Report of the U.N. Secretary General on the rule of law. It reads:
"For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."
These principles all lie at the heart of many of the issues that occupy much of my time as U.S. Ambassador to Ukraine. The rule of law is an ideal that no country can perfect; all countries must constantly reform their systems to meet new demands and circumstances.
Last December, Mykola Siruk in an interview for Den’ asked me why I have spoken so often about the need for judicial reform and other steps to strengthen rule of law in Ukraine. I told him that I strongly believe, as does the United States government, that the rule of law is fundamental to the success of any modern, democratic nation. All people in a society – citizens and noncitizens – must know that they have access to public justice when they believe they have been harmed. People suspected of crimes must believe that a system of laws is in place which ensures transparent and fair treatment. Businesses must know that if their contracts are not honored there is a real possibility of redress. This is important in the context of the U.S. Embassy’s work here, because a core part of our mission is to help the Ukrainian people achieve their goal of a prosperous, democratic, and independent state that is integrated into European institutions. None of these elements can be fully achieved without the rule of law.
I can also refer you to an excellent article from the March/April 1998 issue of Foreign Affairs, entitled “The Rule of Law Revival.” In it, Thomas Carothers of the Carnegie Endowment for International Peace warned against the dangers of a formulaic approach to the rule of law, where it is viewed as a “a panacea for the ills of countries in transition from dictatorships or statist economies.” He nonetheless endorses this central focus of Western diplomats working in countries struggling to become market democracies and warns that “rewriting constitutions, laws and regulations is the easy part. Far-reaching institutional reform is arduous and slow.” I can tell you from experience that the easy part is not, in fact, all that easy. Indeed, Carothers continues: “Western nations and private donors have poured hundreds of millions of dollars into rule-of-law reform, but outside aid is no substitute for the will to reform, which must come from within.” He describes three levels or “types” of reform:
Type one focuses on reforming the laws and regulations;·
Type two strengthens law-related institutions and increases their competence, efficiency, and accountability; and·
Type three aims “at the deeper goal of increasing government’s compliance with the law” and “achieving genuine judicial independence.”·
Various U.S. Government programs aim to assist with these first two types and help the Government of Ukraine move towards ultimate implementation of the third. The U.S. Agency for International Development, Department of State, Department of Justice, and other agencies are all engaged in this work with their Ukrainian counterparts as well as Ukrainian and international Non-Governmental Organizations, the European Union and other donors, and the private sector.
Rule of Law and Democracy
A focus by foreigners on rule of law in another country is admittedly a combination of altruism and self-interest. Our self-interest in promoting the rule of law in order to preserve democracy in Ukraine stems from Ukraine’s large population and its geopolitical importance at the center of Europe and the eastern border of the European Union. We have a vested interest in stability in this important part of the world and believe that a democratic Ukraine will promote stability. Our altruistic motivations stem from our fundamental belief in human rights and our desire to see people around the world enjoy the same inalienable rights we claimed and protected in our Declaration of Independence and Constitution. Many of these same rights have since been recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in countless constitutions around the world, including Ukraine’s.
Of course, declarations, treaties and domestic laws do not protect these rights unless those in positions of authority actively work to uphold them – and are themselves subject to them. In the history of the United States, there have certainly been occasions where good laws were enacted, but not enforced by executive or judicial authorities. The most shameful examples occurred in almost 100-year period after the American Civil War, when our Constitution was amended to grant African-Americans the same rights as all other Americans, but many of our politicians, courts, and governmental institutions turned a blind eye to blatant violations of African Americans’ rights. But Theodore Parker, an American activist against slavery before the American Civil War once noted, as paraphrased by Dr. Martin Luther King Jr., “The arc of the moral universe is long, but it bends toward justice.” Over time, as a result of bravery and suffering of many civil rights activists, the US rule of law was extended to African Americans.
Dr. Martin Luther King Jr. noted that “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think thats pretty important.” What is of greatest interest about this statement is not the irony that the law was unable to prevent Reverend King’s assassination, but the fact that even a civil rights leader with many enemies in an era of segregation could have confidence in the rule of law, and trust that the law’s protections would apply to him. While of perhaps little personal comfort to Dr. King, it is significant to the rule of law that his assassin was brought to justice.
As I have noted on other occasions, the events of the past few months here in Ukraine have shown just how important a fair, independent, and accountable judicial system is to the further development of Ukraine’s democracy. The lack of professional independent courts, or even the perception that courts are not free, undermines faith in
4 the justice system. If people perceive that they have unequal access to the courts or see selective prosecution of the political opposition, they will conclude that the judicial system is unfair and politicized, and this will erode their faith in the institutions whose primary function is to guarantee their rights. This has a horrible impact on the willingness of society as a whole to respect the law and to act in accordance with the established rules.
Carothers wrote in his article for Foreign Affairs, “Shoring up the rule of law helps temper two severe problems – corruption and crime – that are common to many transitional countries, embittering citizens and clouding reform efforts.” How are citizens to trust leaders they perceive as using the organs of power to enrich themselves at the people’s expense when they say some painful reform is necessary? How can they trust the courts and law enforcement bodies to protect their rights when they see moneyed and politically-connected individuals enjoy an “untouchable” status that allows them to flout the laws with impunity? While the rule of law cannot guarantee that there will be no corruption – or that civil rights leaders will not be victims of violence – it can ensure that there will be consequences for those who violate the law. U.S. laws did not prevent former Illinois governor Rod Blagojevich from pressuring businesses for donations or attempting to sell an appointment to the Senate seat Barack Obama vacated when he became President, but they did allow our justice system to try Blagojevich and upon conviction sentence him to 14 years in jail for his crimes. He is the third governor of Illinois in the past couple of decades to have been convicted of corruption in office and sentenced to prison.
Rule of Law and Economic Development
For the year-end issue of Ukrainsky Tyzhden, I wrote an article about the need for legal reform in Ukraine, arguing in part that “the importance of rule of law to economic development cannot be overstated.” Courts must reliably settle disputes and uphold contract obligations fairly and consistently; otherwise, entrepreneurs and foreign investors will look to other markets, not wanting the profits from their hard work to be stolen by rivals or corrupt officials. Here in Ukraine, in the absence of reliable protection of physical property rights and intellectual property rights, the business climate will remain weaker than its potential, and many of the best-educated will seek to leave the country for greener pastures. Foreign businesses will think twice before investing when they have alternatives in more predictable and more welcoming markets. Many potential investors hesitate because they have heard stories of foreign businesses who have encountered severe problems with the inconsistent application of the law, whether to protect them from corporate raids or to ensure the timely reimbursement of VAT payments.
It does not have to be that way. Ukraine boasts a well-educated and hard working population. Ukraine has the natural and human resources and capacity to achieve what neighbors like Poland have – there, even as Western economies were collapsing into recession, some of the same companies that were downsizing radically in places like Ireland were hiring in Poland, which was the only country in the EU in the recent crisis to avoid recession. While the rule of law is obviously not a shield against recession, it is a critical element among necessary economic reforms that can render an economy stronger and more resilient.
Moises Naim, former Venezuelan trade minister, World Bank Executive Director, and internationally famous writer and editor (and the man who revived Foreign Policy magazine), argued that the first phase of market reform is driven by senior officials making large-scale policy decisions, while the second phase requires building institutions – including tax, customs, and antitrust agencies – and improving government’s relations to business. He argued that strengthening the rule of law is integral to the second phase. At various points over the past twenty years of independence, Ukraine has undertaken some of the necessary reforms required for phase one, but much work remains, both in enacting further reforms and, most essentially, in institutionalizing and implementing those changes.
It is easy to see how much foreigners perceive the need for improvement of the business and investment climate here. Look at the international polls that track investment. Let me just give you four examples in which Ukraine falls below almost every European country. In Transparency International’s corruption perceptions index, Ukraine is No. 152 out of 182; in the Index of Economic Freedom of the Heritage Foundation, Ukraine is 163 out of 183 – several spots below Belarus; in the World Economic Forum Global Competitiveness ranking, Ukraine is 83 out of 142; and in the World Bank’s Ease of Doing Business report, Ukraine is 152 out of 183. These organizations that measure progress on economic reforms and building a better business climate see backsliding, not progress.
To be fair, however, Ukraine is slowly making progress in some areas related to improving the legal and regulatory framework for business. The U.S. Embassy, the American Chamber of Commerce in Ukraine, and the EU have been particularly active in working with the Verkhovna Rada, government decision makers, and the business community to help Ukraine draft solid laws that will give businesses a chance to flourish and grow. Some good laws have been passed, and we can only hope that they will be properly implemented and enforced. The new tax code, which went into effect last year, and the new draft customs code, which should come into effect in January 2013, are two good examples of these much-needed reforms. However, these new laws will only work when all the individual tax inspectors and customs inspectors understand and respect the law. Implementation is critical.
Of course, rule of law as it relates to business goes further than just effective legal institutions. To move up the rankings in business and investment climate, Ukraine urgently must improve its administrative procedures to bring them in line with those that govern commercial issues in the vast majority of the world’s most developed economies. Routine business matters are hindered by a lack of clarity, such as knowing what tariff line (and hence tariff rate) applies to a specific product. Even unintentional errors based on these poorly written guidelines often escalate almost immediately into criminal charges. Nothing scares foreign businesses faster than threats not just to profits but to freedom, and tactics of this kind do send chills down investors’ spines. Unclear and cumbersome regulations are in invitation to invest elsewhere.
In 1999, then President of Romania Emil Constantinescu noted that legal reforms undertaken in his country would enable the nation to move from the law of force to the force of law. This is what international investors are looking for, and what Ukraine should be able to deliver. And it is not just foreigners who are looking for firm establishment of rule of law; a recent poll showed corruption – the antithesis of law – to be the number one concern among Ukrainians.
Legal Reform Challenges Facing Ukraine
So what reforms, specifically, are we encouraging the Government of Ukraine to undertake on a priority basis? None are more important to the rule of law than establishing a strong, independent, and corruption-free judiciary. Equally important is the establishment of a more reliable and fair criminal justice system, which will begin with the adoption of a criminal procedure code consistent with European norms. USAID, the Department of Justice, and other agencies of the U.S. Government have worked closely with Ukrainian authorities, the European Union, and the Council of Europe to make proposals to conform these laws to international and European standards and the recommendations of the Venice Commission and the Council of Europe in particular.
Andrew Jackson, the seventh President of the United States of America, declared, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” It is no secret that Ukrainians do not believe that their legal system – criminal or civil – is independent of political interference. Many international observers agree, and not solely based on the appearance of selective prosecution of political opposition leaders in recent months. There are many other indicators of a dysfunctional legal system, including the sense that corporate raider activity is on the rise, with the assistance of some lawyers, prosecutors, judges, and law enforcement agents. Moreover, Ukraine’s abysmal record before the European Court of Human Rights suggests serious problems. In 2011, Ukraine ranked third from the bottom, with 105 judgments against the country. Adverse rulings included the following violations: Length of Civil and Criminal Proceedings (66 individual instances), Right to Liberty and Security (42), Right to a Fair trial (21), and Inhuman or Degrading Treatment (15).
To be sure, within the past two years, the Verkhovna Rada has adopted new laws on the Civil Service, Free Legal Aid, and countering corruption, Trafficking-in-Persons, and Money Laundering. If effectively implemented, these laws could help Ukraine address a number of problems cited in the 2010 report of the Parliamentary Assembly of the Council of Europe, or PACE, including those related to access to justice, improving the capacity of Ukraine’s bureaucracy to govern effectively, and protecting and assisting Ukraine’s most vulnerable populations.
Likewise, the passage of the new electoral law, with enough compromise to gain the support of much of the opposition, will hopefully help to improve the conduct of free and fair elections – again, if properly implemented. The passage of the law on Access to Public Information also has the potential eventually to increase government transparency considerably, and hopefully accountability as well. In the United States, the Freedom of Information Act is an incredibly powerful tool for the press, civil society, and the general public to fight corruption, government excesses and misconduct, and to demand change. Whether Ukraine’s law will have a similar effect will depend upon how forcefully the public demand compliance and whether an independent judiciary will enforce it. Senator Robert Kennedy once said, “Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on.”
Let me turn to judicial reform. There can be no doubt that the Law on the Judiciary and Status of Judges passed in July 2010 was a much needed step forward, but significant changes are required to bring it in line with the recommendations of the Venice Commission. Many important reforms were codified in the law, including fair, transparent, and merit-based judicial selection and disciplinary procedures, the random assignment of cases, and the posting of judicial disciplinary decisions and a judicial misconduct complaint form on the Internet. In the areas where the law still falls short, President Yanukovych has ordered further amendments in line with Venice Commission recommendations, which would represent an important next step in advancing judicial reform in Ukraine.
Unfortunately, some of the proposed amendments to the Law on the Judiciary do not advance judicial reform in a manner consistent with European and international standards. In particular, it is critical that all judicial reform initiatives preserve and further the independence of the judiciary and its institutions, including especially the Supreme Court, whose role and status under the new law are a particular concern of the Venice Commission and other international observers, including the United States.
While the importance of bolstering the role of the Supreme Court as the ultimate arbiter of the rights and freedoms of Ukrainians cannot be understated, the independence of all judges is obviously important. Independence at all levels of courts is threatened by, among other things, the role the prosecution plays in the High Council of Justice, including in exploiting the vague language of the oath of judges which the High Council enforces to intimidate judges who do not grant prosecution requests for detention and specific sentences. Over the past year, we worked with the Commission on Strengthening Democracy and Rule of Law led by MP and former Minister of Justice Holovatiy on amendments to do that which were sent to the Presidential Administration on December 20. We were concerned to see no reference to these proposed amendments included in the Presidential Administrations recently stated judicial reform priorities and hope that the Presidential Administration considers them as soon as possible and introduces them in the Rada. These amendments would put into place critical improvements to the judicial appointment and discipline processes, and help to restore some of the powers and infrastructure of the Supreme Court.
Criminal Procedure Code
The new Criminal Procedure Code which was just passed by the Verkhovna Rada last week was praised in draft by the Council of Europe and European Union leaders for its adoption of European standards. It is encouraging that President Yanukovych announced his intention to send the final version of the Code to the Council of Europe for a final analysis before signing it. Through our Department of Justice, we worked cooperatively with others in the government to support the drafting of this law.
This law is not perfect and I’m sure unforeseen problems will reveal themselves during its implementation and will need to be fixed. Nevertheless, the law wisely creates a brand new criminal justice system based upon the principle of an adversarial system. In essence the law replaces a prosecutor-dominated system with a system where defense advocates have an enhanced role and the courts are the final arbiters of disputed issues, and the courts are ultimately responsible for protecting the rights of the accused and victims. Significantly, the new Code prohibits the use of evidence which was illegally obtained and expands defendants’ right to and access to counsel before questioning by police and throughout the process. Finally, to ensure the protection of fundamental human rights, this new Code requires that it be interpreted consistently with the European Convention on Human Rights and the European Court’s decisions. This requirement is a truly remarkable change for any post-Soviet legal system.
The new criminal procedure code also gives prosecutors an essential tool for dismantling criminal organizations and conspiracies – the use of guilty pleas and cooperation agreements. In the experience of U.S. prosecutors, it is only through the use of such plea bargains and cooperation agreements that investigators are able to prosecute the higher echelons of criminal organizations, whether the crimes involve fraud, corruption, or human trafficking. This is because the testimony of insiders is essential to identify and prove the roles of various conspirators and to find key evidence and assets.
That is all potentially good news. To make it work, however, prosecutors and police must follow the law -- including those provisions which might make their jobs more difficult – and judges must enforce the laws. For example, suspects and defendants who are not free to leave when approached by police will have to be advised of their rights to remain silent and to be represented by counsel before answering police questions. The Code is structured to make detention the most unusual and not the most common measure of restraint to ensure a person’s appearance for further proceedings. Police will be required to promptly notify family members of the whereabouts of a detained person. If defense lawyers and courts are doing their jobs, it should now be very difficult to deny a lawyer access to his or her client. Without so many involuntary or coerced confessions, real evidence derived from real police investigative work will have to be obtained to detain people and to convict them.
To make your new system work, courts will also be under increased pressure to be professional, independent and accountable, and qualified defense lawyers must play a more dynamic and aggressive role in insisting that their client’s rights be observed by the police, prosecutors and the courts. For example, the law provides for open and adversarial proceedings before a judge – prior to detaining a suspect pending trial. Indeed, it places a burden on the prosecutor to show that no less restrictive measures than detention will suffice to ensure the suspect or defendant’s appearance in court and law abidingness during the investigation and trial. This should be a significant burden for the prosecutor to meet for persons accused of non-violent offenses, and without ahistory of prior convictions. To order detention, a judge must issue a reasoned decision, and the period of detention ordered cannot exceed 6 months. To continue to detain a person, the prosecutor must again meet the same burden of proof of no less restrictive alternatives to detention. Detention orders are also immediately appealable by defense counsel.
To make this system work, suspects and defendants must have qualified lawyers who think proactively about how to defend their clients, and when they cannot afford such counsel, the government must provide qualified and independent counsel free of charge. The Government of Ukraine is wisely reworking to improve its law on the bar and is beginning to implement a free legal aid system under a law passed last year. The transition to defense counsel knowledgeable and qualified to meet these new challenges will be painful but necessary, especially for attorneys already practicing for years under the broken system.
Let me also say a word about jury trials, because most Americans are proud of our jury system and the power that it grants to ordinary citizens to participate in the justice system. The new Criminal Procedure Code allows for a type of “jury” for crimes with the possibility of life imprisonment. The “jury” will be composed of two judges and three lay people and decisions will be made based upon a majority vote. Time will tell whether this system will work as well as a jury of only citizens alone, but I recommend that you continue to closely monitor and debate this issue. Juries can be especially effective in countries with histories of corruption and extraordinary prosecutorial power. Russia’s recent experience with jury trials might also be closely examined; on the whole, the jury system there has reportedly improved both the quality of trials and the perception of the results. While attempts to tamper with juries will undoubtedly occur, and they should be dealt with in a fashion that will deter future attempts, it is equally true that currently attempts are frequently made to tamper with the independence of judges.
Shift in lawyers’ mindset
Beyond institutional changes to the relative influence of judges, prosecutors, and defense lawyers, a change of culture among lawyers is needed. Changes are taking place as shown by the increasing number of lawyers doing pro bono work, which has become an essential part of the legal profession in much of the world. These “free-of-charge” legal services provide access to the justice system for individuals who otherwise are unable to afford quality legal services. Today, the American Bar Association Model Rules of Professional Conduct urge “all lawyers to provide a minimum of fifty hours of pro bono services annually, ” arguing that “personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.” Attorneys around the world have brought numerous successful human rights cases on issues ranging from political asylum to laws governing non-profit organizations. Pro bono work enhances the reputation of lawyers and their firms, provides opportunities to learn new areas of law, and broadens personal and professional contacts.
Citizens’ access to justice throughout Ukraine remains limited and inconsistent, but pro bono lawyers are now helping prevent individuals from being unlawfully denied housing, from wrongfully losing their jobs, and from being subjected to domestic violence. The U.S. government has been proud to support the work of pro bono attorneys and to present awards to attorneys who have distinguished themselves by their pro bono service over the past two years.
The Role of Ukrainian Law Students
I have spoken at length about why I think the rule of law is important and what, specifically, Ukraine most needs to focus on to ensure its firm establishment here. Before I conclude, let me say a few words about why I wanted to deliver this message to you: Ukrainian law students. For the most part, it should be obvious: this is the work in which you will be engaged in the very near future, and its success will depend in a large part on what you do. Albert Einstein once remarked, “As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule.” If these words sound wise to you, it is up to you to make yourselves part of that core group in Ukraine that will ensure that Ukraine is and remains such a country where its citizens will not desire to seek other lands to call home.
Creating a culture of respect for human rights and the rule of law upheld by an accessible and effective justice system requires commitment from the entire legal community in Ukraine, including student law clinics, legal advocacy organizations, public legal aid offices, and law firms, working together in partnership. I encourage all of you to take a firm interest in working to ensure that the needed reforms to establish the rule of law are not only enacted in legislation, but implemented in practice. If there is to be accountability and equality before the law, it is going to require not just the appearance of change, but a new expectation that institutions will function as the law requires. People with a vested interest in the status quo are unlikely to demand this change or to point out where implementation falls short. We foreigners can help, but ultimately it is up to you. This is your challenge.
Ukraine has been independent for twenty years, which is not such a long time for those who were already adults when the Soviet Union dissolved. For you, however, Ukrainian independence has been a fact for most, if not all, of your lives. I believe this gives you a very different perspective from that of your parents and older generations who may have a harder time shedding the expectation that they have no power to effect change. This is your country, and you will ultimately be responsible for it when it is your generation’s turn to govern. Some of you will work for government; others as prosecutors, defense lawyers, or judges; and others in the private sector. Success in all of these areas is currently harder than it needs to be.
The sooner the rule of law is the law of the land, the better your future. I urge each of you to find your own way of contributing to bring this change about sooner, rather than later. Whether you engage in pro bono work as a lawyer, devote your education to supporting an NGO, or work in government or the judicial system, insist on accountability and transparency. Remember what Bobby Kennedy said: “every community gets the kind of law enforcement it insists on.” Do not settle for the status quo. As President Obama has urged Americans, “Rise to, don’t shrink from the harder challenges.”
Let me conclude with a marvelous paraphrase of the Aristotle quotation with which I began, spoken by the 34th President of the United States and the Commander of the Allied Forces during World War II, Dwight David Eisenhower. He observed, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” As Ukrainian students of the law, your challenge will be to help ensure that your country’s citizens enjoy the benefits of a society in which all are equal before the law. And always remember, “Law reform is no sport for the short-winded.” Former New Jersey Chief Justice Arthur Vanderbilt.
Thank you and good luck to you all.
Social and economic rights
Ukrainian President’s millions in book fees raise eyebrows
Viktor Yanukovych is not only president of Ukraine but the country’s best-paid author as well, according to a recent declaration on his website.
Ukrainian President Viktor Yanukovych has never been known as a man of letters. He famously misspelled "professor" when listing his academic title during a failed presidential bid and once praised the residents of Lviv for their remarkable "genocides" when he actually meant to say "gene pools."
And in December 2010, he momentarily forgot the Ukrainian word for fir tree -- "yalynka" -- falling back on the Russian "yolka" instead.
So it’s come as a surprise to some that the notoriously ineloquent Yanukovych has emerged as Ukraine’s best-paid author.
An income declaration published on his presidential website claims that in 2011 Yanukovych earned more than 16.4 million hryvnyas ($2 million) in copyright fees for numerous books, including "A Year in Opposition, " "A Year in Office, " and "How Ukraine Should Live Further, " as well as any books he may pen in the future.
With that $2 million payout -- courtesy of the Donetsk-based publisher Noviy Svit -- Yanukovych’s single-year earnings put him comfortably in the ranks of another presidential author, Barack Obama, who earned $2.5 million in royalties from his books in 2008, the year of his election as U.S. president.
Not surprisingly, it also makes Yanukovych one of the highest-paid authors in Ukraine, a country where the average salary is just $300 a month.
Irene Rozdobudko, an award-winning Ukrainian journalist and author of such novels as "The Lost Button, " says she finds Yanukovych’s reported book earnings hard to believe.
"In Ukraine, this situation is impossible for any writer because authors’ fees and royalties are very small, " Rozdobudko says. "This is an example of our corruption. We have authors who are on a level with William Faulkner, who are recognized around the world. But I don’t think they’ve ever been paid so much."
’Did He Write A Single Line?’
Yanukovych, whose hardscrabble upbringing and early criminal convictions have led to more contemporary claims of corrupt privatization deals and abuse of office, has attempted to deflect attention from his $2 million paycheck by announcing plans to contribute his literary earnings to charity.
On April 15, Yanukovych said his profits would be used exclusively to help "sick people, and primarily children."
Presidential largesse aside, many writers say they remain perplexed by Yanukovych’s earnings because of the deeply dubious quality of his writing.
His most recent book, an English-language paean to Ukraine’s investment possibilities called "Opportunity Ukraine, " caused ripples following its release last autumn after entire portions of the book appeared to be plagiarized.
Andriy Kokotyukha, a screenwriter and the author of popular detective novels and a series of books for teens, says he’s skeptical that the president ever set fingers to keyboard during the creation of his books.
"I’m not sure [Yanukovych] wrote a single line himself, " Kokotyukha says. "But if he patented all of his gaffes, such as ’yolka, ’ and received royalties every time they were used, then he would make much more than 16 million hryvnyas."
A Copy For Everyone!
Allies of Yanukovych have defended his outsize earnings as legitimate, saying Ukraine operates according to a market economy and that no publishing house would make payouts without a guaranteed return.
But others say they question who, precisely, is buying Yanukovych’s books. Ukrainian bookstores rarely carry the presidential tomes, and in the case of "Opposition Ukraine, " at least one determined reader had to travel to the Vienna-based publisher to track down a copy. ("Opposition Ukraine, " as opposed to Yanukovych’s other books, was not published by Noviy Svit.)
Vasyl Shklyar, whose 2011 novel "Black Raven" looks at the Ukrainian resistance movement in the 1920s, says there is one way -- albeit a not very realistic one -- in which Yanukovych could, in fact, have legitimately earned his $2 million paycheck.
"To make so much money in royalties, he would have to sell two copies of his book to every Ukrainian, including children, old people, and blind people, " Shklyar says.
by Yevhen Solonyna, Daisy Sindelar
Copyright (c) 2012. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty
The right to health care
Medical reform harmful to both doctors and patients
Yevhen Zakharov writes that the government began the first stage of medical reforms with a pilot scheme in the Vinnytsa, Dnipropetrovsk, Donetsk regions and in Kyiv, this being set out in a Law from 7 July 2011. Another law making amendments to base legislation was adopted on 7 November last year.
The author echoes other critics of the reforms in saying that the changes have had the opposite effect of that declared.
The changes introduce five levels of medical care: primary – general practice doctors; family doctor in primary healthcare outpatient centres; secondary – treatment by narrow profile specialists in consultative-diagnostic centres; third – treatment of complex diseases in highly-specialized establishments; emergency – where there is a risk to life; palliative.
The first four should be brought in stage by stage from 2012, while palliative care would be from 1 January 2015.
The author notes that according to the new system it is unclear how patients could exercise their basic right to a free choice of doctor and medical establishment.
The outpatient family doctors will do most of what has up till now been done in clinics. Such centres will need to be opened in each district of a city or region [oblast]. In Kharkiv there should be one such centre for 2.5 thousand residents.
The author points out that the new network is linked with the number of people, but fails to take into account the condition of roads and public transport. This means that especially in rural areas the declared timeframe for emergency care or transporting a person to an emergency clinic of 10 to 20 minutes is quite unrealistic.
The primary healthcare centres in the pilot scheme areas, especially in rural areas, are located without consideration for whether people, especially the elderly, can get to them. This is a major problem with all levels of care.
At present the primary care centres in the pilot regions do not have the number of general practice doctors nor equipment for diagnosing and treatment the most widespread illnesses, etc.
The author suggests that the reformers seem to have forgotten to find a replacement for an established system of medical services provided at home and providing district clinics according to people’s place of residence with prescription drugs etc. Nor has the issue of licensing such medicines etc been set out.
There is a catastrophic lack of family doctors. The author notes that the idea is fundamentally flawed that people can change their specialization in a mere 6 months, losing pay while doing so, since the changes will cancel out the previous qualification category.
The ambulance system is also to be reformed with emergency and critical services, with the latter being run from a single centre in Kyiv. It is unclear how this can be called.
The author writes that the public are protesting on a wide scale at the closure of hospitals and clines.
All city medical establishments providing secondary and tertiary care are to be transferred to the budget of the region, with all of them already now supposed to be organizing contracts for medical services with the relevant body distributing funding. This, the author says, looks like an attempt to shift responsibility for funding onto local bodies and indicates the real aim of the “reform” – to reduce spending on medicine by reducing the number of beds in hospitals and number of specialist doctors. This is when there are already large shortages of doctors with the average ration being 26.9 per 10 thousand head of population, whereas the average European rate is 33 per 10 thousand.
This, the author says, is as well as the fact that the laws passed do not comply with the Constitution or a number of legislative acts.
Yevhen Zakharov says that there is total lack of information regarding the aim and content of the pilot scheme and the reforms as a whole, lack of feedback and dialogue with the medical workers’ trade unions and members of the public. Professionals in the field and trade unions are highly sceptical of the cases if not accompanied by increases in spending. Activists from NGOs point to a tangible deterioration in access to medical services in the pilot regions, especially in rural areas.
There is widespread protest over closure of medical establishments. In the Donetsk region signatures are being collected to a petition. One city council has refused to introduce the reforms and there have been protests in other places. In Kirovske they were planning to close the only city hospital, despite the fact that the nearest was 25 kilometres away and the hospital serves a city of 30 thousand. Similar protests have been held in a number of other places and so far no medical establishments have been closed. And yet the government is still persisting with its “reform” which the author says simply must be stopped.
From an article by Yevhen Zakharov, Co-Chair of the Kharkiv Human Rights Group posted here
Ukrainians fork out huge amounts on “free medical care”
Ukrainians die 10 years earlier than most Europeans and spend phenomenal amounts on the supposedly free medical care. There are not enough doctors and State reforms of the medical sector are worsening, not improving the situation. These and other points are discussed in the just released report Human Rights in the Medical Sphere.
Life expectancy in Ukraine is 68.2 years, on average 10 years lower than in EU countries. Child mortality is 2.5 times higher than in EU countries aside from those which joined more recently. The rate of premature death is three times higher than in EU countries, and from tuberculosis – 20 times higher.
The results so far of the government’s stated aim of reforming the healthcare system are not cheering. The report’s authors consider the global plans of the reformers to be least of all focused on the patient and on ensuring that medical assistance is high-quality, comfortable and accessible for the average person. They cite the Vinnytsa region as an example: the reforms there resulted in the region being without an allergy specialist, dermatologist and immunologist.
The report writes of flagrant violations of the right to healthcare of people living with HIV. 25% of those questioned said that their HIV status had been the reason or a contributing factor in their being restricted in at least one social or medical service. 20% spoke of refusals to provide medical services.
This is the first time that the right to healthcare of people without a fixed address has been studied. The authors found that the homeless who did not have money were unable to receive any health services. There are reintegration centres, refuges and other specialized institutions however these cater only for 3% of the general need.
The authors hope that publication of their report will lead to more active discussion of reform of the healthcare system. The report was prepared with the financial support of the International Renaissance Foundation.
Human rights protection
Candidate for Ombudsperson holds consultations with human rights organizations
Valeria Lutkovska and Arkady Bushchenko, 23 April
BSuggestions from Ukrainian civic organizations to the new Human Rights Ombudsperson on the development of cooperation with civic organizations and improving the work of the institution
A common goal for civic human rights organizations and the Human Rights Ombudsperson is to promote the creation in Ukraine of a law-based state; to safeguard fundamental rights and freedoms and to develop civil society.
Human rights works believe that such an important state institution as the Human Rights Ombudsperson has not thus far been able to fulfil its constitutional possibilities with respect to impact on observance and defence of human rights in the country. Our concern for the future of this institution is one of the main reasons for our meeting on the eve of the vote on Tuesday for new Human Rights Ombudsperson (Valeria Lutkovska was elected Ombudsperson. She received 252 votes).
Human rights organizations have a large number of questions for the future Ukrainian Ombudsperson. We have no doubt who this will be.
There will not be enough time to thoroughly discuss all issues of interest for us. We would therefore like such meetings to become traditional in future. There would be an exchange of views between the human rights community and the Human Rights Ombudsperson.
At this first meeting we would like in the first instance to hear what Ms Lutkovska is planning to devote her attention to in her work and how she sees future cooperation with civic society.
We in turn would like to focus on immediate human rights issues which have not received sufficient attention in the past, specific mechanisms for our cooperation, on the failings which we see in the work of the office of the Human Rights Ombudsperson and what needs to be changed; the changes we would like to have made to current legislation, in particular to the Law on the Human Rights Ombudsperson.
These proposals have been drawn up as a result of discussion in the human rights community. We will give all that we do not have time to directly discuss at this meeting to Ms Lutkovska in written form.
1. Independence of the office of the Human Rights Ombudsperson
Our wishes: the Ombudsperson must be above politics, independent of those in power; impartial in resolving conflicts in accordance with the Paris Principles; follow open information policy and closely cooperation with human rights organizations.
2. Transformation of the institution of Human Rights Ombudsperson
Human rights organizations consider that the strategic priorities in the work of the Ombudsperson need to change. Emphasis needs to be moved from fighting violations to preventive measures, particularly to regular monitoring of the normative legal base to check their compliance with the Constitution, European Court of Human Rights case law in order to prevent the adoption of unconstitutional laws and subordinate legislation.
Is Ms Lutkovska planning in her work to transform the institution of Human Rights Ombudsperson, into:
a) a body which carries out independent investigations into complaints regarding human rights infringements, and does not simply send the complaints received on to the management of those state bodies whose activities people are complaining about?
b) a body which is an independent national mechanism for the prevention of torture in accordance with the Optional Protocol to the UN Convention against Torture ratified in 2006?
c) an anti-discrimination body which examines allegations of discrimination on different grounds; hate speech and hate crimes?
d) a body of independent parliamentary monitoring over implementation of the right of access to information and personal data protection?
We would also like to hear Ms Lutskovska’s vision regarding the possibility of using the right to constitutional submissions to the Constitutional Court, and particularly the impact by such means on the state of court proceedings; what ideas she has for changing the situation with the judiciary and how she plans to organize work with highly publicized cases which are indicators of systemic human rights violations.
3) Ways of developing effective cooperation between the Human Rights Ombudsperson and human rights organizations
a) a systemic approach should be initiated for involving representatives of civic organizations in events being held by the Ombudsperson, including not only conferences, roundtables, but also checks, investigations into high-profile cases, etc This should be included in all provisions, for example, about the Secretariat of the Human Rights Ombudsperson, examination of appeals, carrying out Ombudsperson’s proceedings and other normative acts.
b) The Law does not formally specify civic organizations as those able to make submissions regarding defence of people’s rights to the Ombudsperson. However going by the fact that current legislation gives the Human Rights Ombudsperson the right to initiate proceedings at her own initiate, we propose adding to the Regulations on Examination of Appeals to the Ombudsperson a special section on procedure for mandatory response to appeals which come from civic organizations.
In this case the possibility should also be envisaged of initiating an investigation by the Ombudsperson into cases of rights infringements. Such practice, for example, exists with regard to appeals by MPs to the Ombudsperson.
c) Article 10 of the Law contains a nom allowing scientific research to be carried out under the Ombudsperson in order to provide consultative support, as well as studies of proposals on improving the human and civil rights situation and create a consultative council (which can function on a voluntary basis) from people with expression of working in the field of human rights. The previous Ombudsperson did not create this.
We propose drawing up Provisions on a Consultative Council and creating it quickly with the involvement in it of active human rights workers.
3) Reform of the Secretariat of the Ombudsperson
The majority of human rights organizations in Ukraine consider the work of the Secretariat of the Ombudsperson, despite the fact that it has to examine up to 22 -25 thousand appeals a year, to be extremely ineffective, this leading in practice to most of the appeals seeking defence where there really has been a violation of human rights being ignored.
The Ombudsperson needs to immediately reform the Secretariat from a bureaucratic body aimed at physically processing appeals into a body which carries out comprehensive activities on monitoring problems of human rights protection and effective measures to reinstate the rights violated as per the applicants’ appeals.
Human rights organizations consider that a system of representatives of the Ombudsperson in accordance with Article 11 of the Law should be dominant.
Incidentally it is specifically via representatives of the Ombudsperson that systemic and constant cooperation between civic organizations and the office of the Ombudsperson could be developed.
Which representatives there should be is a subject for discussion. The following is possible:
a) Regional representatives in the Crimea, the oblasts, Kyiv and Sevastopol;
b) Special (profile) representatives, for example,
A Representative of the Ombudsperson on Gender Equality and Countering Discrimination;
A Representative of the Ombudsperson on Children’s Rights;
A Representative of the Ombudsperson on Places of Confinement;
A Representative of the Ombudsperson on Military Service People, their families, veterans of military actions, children of the War;
A Representative of the Ombudsperson on International Human Rights Cooperation, on Countering Human Trafficking; as well as on Refugee Rights; Migration Issues and Defence of the Rights of Ukrainians abroad;
A Representative of the Ombudsperson on the Rights of the Disabled;
A Representative of the Ombudsperson on Freedom of Speech and Press; Freedom of Conscience; Contacts with Civic Associations, Religious Organizations;
A Representative of the Ombudsperson on the Rights of Nationalities and other Minorities;
c) Representatives on communication
A Representative of the Ombudsperson in the Constitutional Court;
A Representative of the Ombudsperson in the Verkhovna Rada;
A Representative of the Ombudsperson in the Cabinet of Ministers
The Secretariat of the Ombudsperson shall also have specialized subdivisions with the power to review the relevant categories of appeals which do not fall under the powers of the representatives, including:
1. Criminal - legal
2. Administrative - legal;
4 Permanent monitoring of implementation of international obligations which Ukraine took on in ratifying human rights documents.
4. Transparency of the Ombudsperson’s work
A system of transparency and accountability of the activity of the Ombudsperson to society should be formulated. Constant flow of information on the results of work through updating and reworking the official site; transforming it into a working body, a permanent source of legal information; a mechanism for communication and for citizens’ feedback.
At the present time we have a situation where only two Provisions approved by the Ombudsperson are on general access: the Provisions on the Secretariat of the Human Rights Ombudsperson and the Provisions on Representatives of the Human Rights Ombudsperson. Registration with the Ministry of Justice is not stipulated. There is no reference to the existence of other normative documents of the Ombudsperson which according to legislation should be public and generally available.
We therefore propose immediately drawing up, approving and publishing normative acts which should exist in the institution of the Ombudsperson (for example, on procedure for examining appeals; on proceedings, etc) so that the public can have access to them.
5. Changes to the Law on the Human Rights Ombudsperson
The issue of changes to the Law is complex and controversial and we suggest, for example, focusing on possible changes regarding:
- reform of the procedure for citizens’ appeals to the Ombudsperson;
- regulation of proceedings by the Ombudsperson in cases of rights violations;
- clearer regulation of the Ombudsperson’s powers in cases under examination by the courts, including possible appeals to the court;
- providing the Ombudsperson, as is the case in some other countries, with the right to take decisions resulting from review of appeals by members of the public regarding repeat review of civil and administrative cases by the court.
- providing the Human Rights Ombudsperson with the right of legislative initiative; and so forth.
6. Reform of procedure for appeals from members of the public to the Ombudsperson
Article 17 of the Law gives the Ombudsperson the right to accept and examine appeals from Ukrainian citizens; foreigners; stateless persons or people who are acting in their interests, but exclusively in accordance with the Law on Citizens’ Appeals. This norm narrows the rights provided by Article 55 of the Constitution which states that each person has the right to approach the Human Rights Ombudsperson in defence of their rights. That is, the Constitution makes no restriction on appeals. Furthermore, the Law on Citizens’ Appeals does not envisage procedure for making appeals by telephone, email or other contemporary forms of communication which in the case of the Ombudsperson and her range of powers, tasks and cases is extremely important.
With this Law there is thus an artificial restriction on the possibility of appeals seeming defence. In practice this also leads to the temptation to ignore appeals, using the grounds that are very broadly given the Ombudsperson by the current Law on Citizens’ Appeals and Article 17. It is specifically this procedure which elicits most complaints from members of the public and civic organizations about inaction or limited response by the Ombudsperson to citizens’ appeals.
Clear criteria for admitting statements and their form must therefore be drawn up.
Moreover the norms set out in Article 17 twists and distorts the significance of the institution of the Ombudsperson as a body which should independently oversee observance of human rights in the country, effectively equating an appeal to the Ombudsperson to appeals to any ordinary state body.
We therefore suggest that the new Ombudsperson in as short as possible a timeframe should make a legislative initiative proposing a change to Article 17 of the Law, bringing it into line with Article 55 of the Constitution and with the practice established throughout the world for making appeals to national ombudspersons.
Furthermore Article 17 of the Law completely fails to elaborate how and according to what procedure the Ombudsperson must examine appeals. There are no relevant Proceedings or generally available information. Most human rights organizations consider that this leads to the institution of the Ombudsperson lacking openness and to a large number of appeals to the Ombudsperson being ignored.
We therefore propose in the shortest timeframe possible to draw up Provisions on Appeals for defence to the Human Rights Ombudsperson which clearly set out the procedure for admitting appeals for examination or refusing to consider them; the procedure for review and for reacting to appeals accepted for examination. In the near future we also propose that the Ombudsperson put forward a legislative initiative to elaborate the content of examination of appeals in Article 17 of the Law.
7. Human rights education
Drawing up and implementing human rights education and awareness programmes together with civic organizations, higher educational institutions, scientific organizations, trade unions etc. Such human rights education should also play a preventive role warning about infringements committed.
News from the CIS countries
On the situation in Belarus
Dmitry Bondarenko and Andrei Sannikov
We welcome the long awaited release of former presidential candidate Andrei Sannikov and his authorized representative, Coordinator of the "European Belarus" Dmitri Bondarenko.
We must, however, point out that at least 13 Belarusian political prisoners - Ihar Alienevich, Mikalai Autukhovich, Ales Bialiatski, Dzmitry Dashkevich, Mikalai Dziadok, Aliaksandr Frantskevich, Siarhei Kavalenka, Eduard Lobau, Artsiom Prakapenka, Pavel Seviarynets, Mikalai Statkevich, Pavel Syramalotau and Yauhen Vaskovich - are still being held in prisons and other places of detention. There must be an end to persecution of all Belarusian opposition politicians, civil and human rights activists.
We urge the Belarusian authorities to immediately release all political prisoners and withdraw the charges against them. We are convinced that prosecutions over the events of 19 December 2010, are not in keeping with international standards for a fair trial, and the sentences passed were politically motivated. We also call for an immediate moratorium on the use of the death sentence.
Marek Migalski, Member of European Parliament, Poland
Marieluise Beck, Member of Bundestag, Germany
Andres Herkel, Member of Riigikogu, Estonia
Lyudmila Alexeeva, Moscow Helsinki Group, Russia
Valiantsin Stefanovich, Human Rights Centre Viasna, Belarus
Lars Bünger, Libereco - Partnership for Human Rights, Germany, Switzerland
Irina Bogdanova, Free Belarus Now, United Kingdom
Natalia Koliada, Nikolai Khalezin, Free Belarus Theatre, United Kingdom
Irina Krasovskaya, Valeriya Krasovskaya, Civil Initiative “We Remember”, Netherlands
Dzmitry Barodka, European Belarus, Belarus
Nasta Palazhanka, Young Front, Belarus
Belarusian Tribunal, Netherlands
Anna Gerasimova, Belarusian Human Rights House in Vilnius, Lithuania
Olga Sadovskaya, Committee Against Torture, Russia
Lilia Shibanova, NGO for Democratic Rights and Liberties "GOLOS", Russia
Аndrey Kalikh, Centre for the Development of Democracy and Human Rights, Russia
ARTICLE 19, United Kingdom
Civic Belarus, Czech Republik
Jevgeni Krishtafovitsh , MTU "Avatud Vabariik", Estonia
Mart Nutt , Estonian institute of human rights, Estonia
Sergey Ustinov, Belarus
Andrei Blinushov, Human Rights in Russia, Russia
Natalia Shcherbata, Ukrainian Women Bar Association Bazhan, Ukraine
Halyna Coynash, Kharkiv Human Rights Group, Ukraine
Intigam Aliyev, Legal Education Society also to support, Azerbaijan
Alla Tyutyunnyk, Kherson Regional Charity and Health Foundation, Ukraine
Men’s Adaptation Center, Ukraine
Abdujalil Boymatov, Human Rights Society of Uzbekistan, Ireland
Nadejda Atayeva, Association for Human Rights in Central Asia, France
New campaign highlights Azerbaijan rights abuses ahead of Eurovision
Sabina Babayeva is Azerbaijan’s entry for Eurovision.
Anew video campaign is turning up the heat on this year’s Eurovision Song Contest host Azerbaijan over the country’s dubious human rights record.
After winning the 2011 contest, Azerbaijan earns the right to host the May 22-26 competition, which is one of the most-watched TV events in the world and known for its mix of kitschy pop music and garish costumes.
Sing for Democracy, a group based in Baku, is asking people to sign a petition calling on contestants to support human rights in Azerbaijan.
The video begins by showing the glitzy, modern side of Baku, before highlighting the unsolved murders and imprisonment of journalists, the controversial demolitions of Baku homes, and the brutal suppression of peaceful demonstrations.
If Eurovision entrants wanted any ideas on how to make a political statement, a poll on the Sing for Democracy website suggests they could dedicate their songs to human rights or wear clothes featuring images of political prisoners.
One of those mentioned in the campaign video is Khadija Ismayilova, an RFE/RL freelancer and investigative journalist, who was recently the target of a blackmail attempt after she received written threats and an intimate video of her was published on the Internet.
Azerbaijan has spent huge amounts of money in recent years rejuvenating the capital, Baku, much of it being spent on grandiose construction projects.
Human Rights Watch has criticized Azerbaijan for "the forcible eviction of residents to demolish the last standing building in the neighborhood of the capital, Baku, where the 2012 Eurovision Song Contest is to be held."
Amnesty International has also criticized the Azerbaijani authorities, saying that the contest should "lift the glitzy curtains" and expose the corruption, torture, ill-treatment, and unfair trials of dissidents in Azerbaijan.
An Amnesty campaign video, called "It’s time for Azerbaijan to earn some points for human rights, " similarly juxtaposes images of gleaming Azerbaijan -- where everyone is driving sports cars and sipping champagne on yachts -- with footage of police breaking up protests.
If the campaigns do convince some of the Eurovision performers to take a stand it could result in some embarrassing moments for the Azerbaijani hosts.
Last week, British songstress Sandie Shaw, who won the contest with"Puppet On A String" in 1967, joined the voices calling on Azerbaijanto put an end to media repression and rights violations.
Copyright (c) 2012. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty