“Prava Ludiny” (human rights) monthly bulletin, 2012, #05

Rimma Bilotserkivska who has an arrest warrant from 22 May hanging over her is not the criminal type. Nor is she in hiding which was effectively the “justification” for the latest court absurdity in a seemingly endless flow.  The story is Kafkaesque, the order for her arrest all too real.

Rimma Bilotserkivska is the head of a Severodonetsk human rights organization, Pravovy Prostir [Legal Realm]. The criminal proceedings against her were initiated five years ago when she led a group of residents of an apartment block protesting against the destruction of a green area outside their homes. The authorities ignored them, and when the construction workers arrived and showed equally little interest in the residents’ objections. Ms Bilotserkivska saw no alternative but to climb up to stop the digging work.  The charges are of obstructing cranes.

With a case like that, it is not surprising that first one judge washed his hands of it by sending it back for further investigation.  SIX judges then proceeded to withdraw themselves from the case, presumably unable to treat obstruction of cranes with the impartiality required.

It is worth noting that the human rights activist is a well-known figure in her area, and there has been talk of her standing for parliament in October’s elections. Remand in custody would clearly not enhance her chances of election. This is so manifestly obvious that questions must arise regarding the sudden twist in a five-year-old saga.

The case was, in breach of the Criminal Procedure Code, transferred from Severodonetsk to the Rubizhne District Court  Ms Bilotserkivska knows her rights and the law, and submitted all the appropriate objections and applications.  The court which issued an arrest warrant on 22 May, supposedly because Ms Bilotserkivska had twice not appeared, should not be examining the case. 

At a press conference on Wednesday, the Head of the Luhansk independent trade union “Luhansk Region Entrepreneurs”, Ihor Zaprudsky told journalists that Ms Bilotserkivska is not in hiding, but in her office, with supporters who have no intention of leaving. If the police wish to arrest her, they need another warrant from the court.  Mr Zaprudsky believes that the criminal case is being deliberately dragged out and has lodged an appeal against the decision to change the restraint measure from a signed undertaking to remand in custody.

The Small and Medium Business Assembly of Ukraine, together with Pravovy Prostir, are promising to set up protest tents if Ms Bilotserkivska is arrested. 

The 2010 Local Elections were marred by a number of dubious criminal investigations and detentions of potentially successful candidates, including the then Mayor of Kamianets-Podilsky.  There has already been one arrest this month of a politician expected to be standing for office in October.   Dnipropetrovsk politician and businessman, Zahid Krasnov  was arrested over a criminal investigation which had been terminated back in 2009 but has now been reactivated on the instructions of the Prosecutor General.  He was held in custody for a week then released on a signed undertaking not to abscond.

The latest developments in an old and patently absurd criminal case against a human rights activist and potential candidate in the coming elections place in question the authorities’ declared intention to hold free and fair elections. 

  Oleksandr Bukalov from Donetsk Memorial, an organization particularly active in upholding prisoners’ rights has responded to the Prosecutor General’s recent public statement about the bruises on imprisoned opposition leader Yulia Tymoshenko.

The Prosecutor General (Viktor Pshonka – translator) stated that a check had been carried out, dozens of witnesses questioned who said that nobody had beaten Tymoshenko. And that means there was no beating. The logic, of course, is devastating. The Prosecutor’s. So where did the bruises seen by the whole world come from?  Nobody knows.  She probably inflicted them on herself.

The Prosecutor General forgot – or maybe simply doesn’t know – that since 1997 the European Convention on Human Rights has been In force in Ukraine, and that means in force for the Prosecutor General’s Office. Judgements handed down by the European Court of Human Rights in respect to any country on any violation of human rights falling under the Convention have force for Ukraine also.

In the classic case of Ribitsch v. Austria (1995), the Court indicated that the state bears moral responsibility for any person held in custody since the person is totally under the power of the police. If any injuries are received during this period it is the government which must provide proof refuting the description of events given by those who suffered the injuries especially in cases where their evidence is substantiated by medical documents.

In the case of Yulia Tymoshenko, that means that the non-involvement of the authorities in the appearance of any injuries (bruises, etc) can only be proven when plausible explanations have been provided for the source of such injuries. That means explanations, not suppositions, and it is to be stressed, they must be plausible. The Court considers that a person held in custody by an authority is totally dependent on that authority and they therefore bear responsibility for the health and safety of the person in custody.

It is also immaterial whether the authorities find the person who inflicted the injuries. They answer for those injuries.

The Court stresses that with respect to persons deprived of their liberty any use of physical force not based on urgent need provoked by the latter’s behaviour, is degrading and in principle a violation of Article 3 of the Convention (prohibition of torture and ill-treatment).

The Prosecutor General should be aware of this standard if only because the Council of Europe about three years ago spent a huge amount of money on teaching Prosecutor s about these standards.  Dozens of seminars for hundreds of prosecutors were held.  The result, as we can see, is not cheering.  The money would seem to have been wasted.  This gloomy conclusion is backed up by a small survey carried out by Donetsk Memorial in February-March 2011 in the Donetsk oblast.  10 regional prosecutor’s officers were sent a request for information about the number of complaints they had received in 2010-2011 about unlawful methods of investigation and the number found to be warranted. According to the responses from 8, 515 complaints were received (on average 22 per year per prosecutor’s office). Five were found to be warranted, leaving 510 deemed to be wrongful by the prosecutor’s office.

With respect to the check of possible use of force against Tymoshenko, the Prosecutor General demonstrated the Ukrainian standard for checking such reports. It doesn’t matter what you see on the photo, it’s a “lie”. And it doesn’t matter that such an approach is a violation of the European Convention on Human Rights, and Ukraine from time to time pays people compensation for cases which it loses in the Court.  And, according to her lawyer, the alleged victim was not even questioned during this check.

With the check into the likely use of force against Tymoshenko the public have yet again received a clear signal – if anybody is beaten by the police or in prison, they can complain to the Prosecutor’s Office. But the likelihood of the complaint being properly examined are less than one percent. And that is if they didn’t approach the Prosecutor’s Office of the Kalininsky District of Donetsk which said that it hadn’t received one complaint in 2010-2011.

Of course you can hold training courses for Prosecutor’s Office staff but will it help?  The Council of Europe tried and the result is here for all to see.

Very slightly abridged from the text by Oleksandr Bukalov at

http://ostro.org/blogs/blog-20/entry-239/

Almost two years have passed since the adoption of the new Law on the Judiciary and Status of Judges. Unfortunately, all fears that this Law would have negative consequences have proved justified. We are furthermore seeing a trend towards rejecting the few achievements there had been or which still remain in this Law.  The crisis in the justice system has recently taken on new shape as seven key problems demonstrate.

1.  Selection of justice: manipulation within the framework of the new rules

In 2011 the first selection of judges took place according to the new rules. Lack of transparency in marking the anonymous tests, as well as the failure to make the test tasks public after the selection process was over prompt doubts as to the fairness of the selection. Moreover some judges who did not receive a high score in the rating were first appointed to provincial courts, then immediately after that, at the beginning of 2012, without any competition being announced, they were moved to courts in Kyiv.

The transfer of judges to higher-level courts was made without competition which is not even envisaged by the Law. the selection of such judges is carried out behind the scenes, based on connections.

It has become a pattern in the last two years that a large percentage of the judges are moved to Kyiv courts from the Donetsk region. From 1 January 2012 out of 10 judges transferred by parliament to Kyiv courts from other regions, 6 were from the Donetsk region. It is specifically due to such transfers that the largest number of vacancies is in the Donetsk region.

2.  Pressure on judges through mechanisms of liability

In its Resolution on the Functioning of Democratic Institutions in Ukraine, No. 1862 (2012), the Parliamentary Assembly of the Council of Europe [PACE] expressed deep concern over the lack of an independent judiciary and numerous reliable reports of disciplinary measures or dismissals of judges initiated on the basis of complaints from the Prosecutor’s Office following rulings which the Prosecutor did not agree with. Such practice is one of the reasons for a reduction in the number of acquittals (which fell to 0.2 percent in 2011) and the widespread use of remand in custody during criminal investigations.

On 28 April 2012 President Yanukovych submitted Draft Law No. 10425 on increasing safeguards of judicial independence to parliament. This bans the Prosecutor from initiating calls for disciplinary proceedings against judges where the case is still being held and the Prosecutor is a party to it. While welcoming this proposal, the law, if passed, can unfortunately not change the situation significantly since where an acquittal is received, the Prosecutor often demands that the judge be held liable for a fault in a totally different case, for example, for missing the time deadlines on examining a case. If the judge supports the prosecution’s position, the Prosecutor does not normally use information against the judge.

It should also be noted that the levers for holding judges liable do not just pose a threat from the Prosecutor. The very fact that the disciplinary bodies – the High Council of Justice and High Qualification Commission of Judges – are under the control of those wielding political power forces many judges to be loyal to those in power, even without the latter making any overt requests. The grounds set down in the Law for judges’ liability (for example, infringing the time restrictions on examining cases) given their large workload means that pressure can be brought to bear on any judge, and unfortunately is in practice.

3.  Politicization of the justice system

The tendency by those holding political power to make use of the courts has increased still further over the last year. This is seen in the numerous criminal prosecutions of members of the opposition which end with the courts fully supporting the position of the prosecution. Around 90 percent of all applications from the local authorities to ban peaceful gatherings, bring administrative charges against authors of leaflets etc with messages which those in power didn’t like or against participants in peaceful gatherings, etc, were allowed.

Loyalty to those in power is also being demonstrated by the Constitutional Court which has over recent times only passed judgements which are convenient to the regime and which often contradict their own previous judgements. For example, it has:

-  permitted the Cabinet of Ministers to regulate the size of social assistance regardless of the fact that the amount is stipulated by law;

-  created the possibility of accusing journalists or others of gathering or circulating information, including about criminal records, disciplinary measures, professional education and family ties of politicians and officials at all levels;

-  allowed the President to dissolve courts and transfer judges, although these powers are not set down in the Constitution;

-  prohibited courts from suspending the force of acts issued by the President and parliament before a final judgement is passed in the appeal against them.

4.  Attempts to increase pressure through chief judges

Draft Law № 9740 on improving some provisions regarding the organization of the judiciary is presently under parliamentary consideration. The bill was drawn up by Serhiy Kivalov and Dmytro Shtenov, both of whom played an active role in formulating the original Law on the Judiciary and Status of Judges.  The bill envisages returning chief judges their supervisory powers with relation to the court’s judges and giving them the right to specify judges’ specialization. This will make it possible to legally bypass the automated system for distributing court cases.  At present judges’ specialization is determined by a meeting of judges of the relevant court.

The chief judges were deprived of these powers as part of the judicial reforms in order to reduce judges’ dependence. Since the chief judges have been replaced t over the last two years by more loyal candidates, attempts are being made to reinstate the chief judges’ levers of influence so that judges become easier to control.

Draft Law 9740 will also allow judges to receive varying remuneration, while at present there are restrictions linked with the fact that remuneration has very often been a veiled form of bribing judges.

5.  Increased secrecy of the judiciary

On 20 October 2011 the Verkhovna Rada passed amendments on the Law on Access to Court Rulings which mean that the list of court rulings to be added to the Single Register of Court Rulings is approved by the Council of Judges of Ukraine. A number of analysts have stated that this move by the legislators undermines the Register as a means of public scrutiny over the work of the judiciary. Previously the Law on the Register required that all court rulings handed down by general jurisdiction courts were added. In February this year the Council of Judges approved a list which will mean that many important rulings will not be placed in the Register.

These are judgements from high specialized courts on whether cases should or should not be passed for examination to the Supreme Court; judgements from the High Administrative Court on returning without consideration civil suits at first or final level , for example, in cases against the President or Verkhovna Rada; the majority of decisions in cases involving administrative offences (aside from customs and corruption offences).

Concealment from the public of all these court rulings does not enhance the authority of the judiciary but on the contrary undermines public trust.

On 24 April this year the Verkhovna Rada also cancelled the requirement that the income declarations of judges and members of their families be published on the Internet. Previously the Law on the Judiciary and Status of Judges demanded that copies of judges’ tax declarations needed to be posted on the official website Судебная власть Украины. Publication of judges’ income was supposed to become a way of fighting corruption since it was not difficult to initiate a check regarding a judge whose real financial situation differed from that declared.  This progressive norm was never in fact implemented, neither in 2011, nor now. However now the declarations will only need to be presented to the court where they work.

According to the Law on the Principles for Preventing and Countering Corruption, only judges of the Constitutional Court; Supreme Court and high specialized courts need to make their declarations public in the official print publications of those courts. The declarations need to be submitted by 1 April each year, and published within 30 days of that.  Yet despite even these requirements, not one declaration has yet been published.

6. The use of powers and make up of the Supreme Court for political haggling

On 20 October 2011 the Verkhovna Rada passed amendments to the Law on the Judiciary and Status of Judges regarding the status of the Supreme Court.  It was claimed that the law was needed in order to take the opinion of the Venice Commission into account, with that body having previously criticized the Law on the Judiciary and Status of Judges for radically reducing the role of the Supreme Court in the judicial system.  In fact, however, the Law had nothing to do with implementing the conclusions of the Venice Commission. For example, the grounds for examination of cases by the Supreme Court remain the same (non-equal application of norms of substantive law by cassation-level courts, a judgement from an international court body finding that Ukraine is in breach of its international obligations; when examining a case in the court). What is more, the second role listed can be undertaken by the relevant high specialized court if Ukraine’s violation of its international obligations is the result of breached procedural norms.

The amendments to the Law were in fact linked with the imminent election at the Plenum of the Supreme Court of a new Court President. The increase in number of judges from 20 to 48 was supposed to be alluring for Supreme Court judges. There had been 47 and the positions of 20 of them were in danger. However the amendments did not help to get a Supreme Court Head loyal to the political regime appointed. It is not out of the question that the Supreme Court will have some of its powers reinstated, but only after those with political power can establish control over it.

7.  Disregard for European Court of Human Rights judgements

Over recent times, the European Court of Human Rights has indicated a number of systemic problems in Ukraine which require urgent resolution, including through legislative means.  This applies to the non-enforcement of rulings by domestic courts (Judgement in the Case of Yury Ivanov v. Ukraine from 15 October 2010; insufficiently warranted court orders remanding a person in custody or extending the period of remand; holding a person in custody without a court order or on the basis of a court order which does not stipulate the timeframe (Judgement in the Case of Kharchenko v. Ukraine from 10 February 2011); use of administrative arrest for the purposes of prosecution for a criminal offence (Judgement in the Case of Balatsky v. Ukraine from 3 November 2011). 

None of these issues has been totally removed. Furthermore, this year the European Court of Human Rights has found that the pilot judgement in the Case of Yury Ivanov v. Ukraine was not enforced within the stipulated timeframe, and that it must therefore return to examining the thousands of cases involving failure to enforce the rulings of domestic courts.

In order to overcome these problems, reforms are needed to legislation on the judiciary in accordance with the conclusions of the Venice Commission.

The following must be ensured:

1. Transparency of all stages of selection of judges and the competition principles need to be stipulated for judges’ promotion.

2. Justice and observance of adversarial principles of disciplinary procedure. In order to prevent opportunities for pressure on judges the grounds for disciplinary liability and dismissal of judges must me clearly and narrowly defined. There should also be a broader list of disciplinary penalties can be applied depending on the gravity of the offence.

3.  Judges’ self-government needs to be strengthened, and proportionate representation of judges from each jurisdiction ensured.  The system of bodies of judges’ self-government needs to be simplified, leaving meetings of judges at the level of each individual court, the Congress of Judges of Ukraine and Council of Judges of Ukraine.

The distribution of powers between the chief judge and meetings of judges should favour the latter since the chief judge should not be the judges’ boss.

4.  Until the makeup of the High Council of Judges is brought into line with European standards (this requires amendments to the Constitution), the role of the High Council of Judges in the process of the first appointment of judges should be reduced. The provision of the Law on the Judiciary and Status of Judges which gives the High Council of Judges power to appoint and dismiss chief judges and their deputies should be revoked.

5.  The trend towards increasing secrecy of the judiciary must be reversed. Only transparency of the judiciary can convince members of the public of the will for improvements and increase its authority.

6.  The Supreme Court should be given effective judicial powers to ensure uniform application of norms not only of material, but also of procedural law. It should be the arbiter between courts of different jurisdiction and guarantee that courts of different jurisdiction do not refuse to examine cases, pointing to each other. Whether there is a dispersed system, people have problems deciding which court has competence. This duty is therefore best vested with the court, with it having to send the case to the competent court if it decides that it does not have jurisdiction. In the case of difficulty determining which court has jurisdiction at the level of first instance court, the case should be passed to the Supreme Court for a decision in the matter.

7.  Legislative measures should be used to ensure enforcement of European Court of Human Rights judgements containing requirements on the resolution of problems of a general nature. For example, resolution of the problem of non-enforcement of court rulings requires review of the moratorium established through law on forced sale of the property of enterprises where the State’s share in the statutory funds are 25% or over, and of the impossibility of using bankruptcy procedure against such enterprises, as well as against enterprises of the fuel and energy industry.

The problem also needs to be resolved of non-enforcement of court rulings in pension and other social disputes. The relevant state bodies which are in arrears should immediately raise with the authorities the issue of changes to the State budget in order to finance enforcement of court rulings passed in favour of the claimant in such cases. In cases between private individuals it would be sensible to introduce non-state bailiffs. Development of this institution should remove the Bailiff Service’s monopoly and in conditions of competition, improve the quality of services on enforcement of court rulings.

Roman Kuybida, Deputy Director of the Centre for Political and Legal Reform

Yurydychny Visnyk Ukrainy - 2012. - №18-19

Remarks by U.S. Ambassador to Ukraine John F. Tefft  at the Reform of the Prosecutor’s Office Roundtable Event, May 17, 2012,

It is with great pleasure that I accepted today’s invitation to speak at this very important and distinguished forum examining the potential for reform of Ukraine’s prosecutorial services.  Given Parliament’s recent passage of a new criminal procedure code – the goal of which is to establish a more adversarial system of justice -- this subject is very timely.  The success of your new criminal procedure code will, I predict, be measured by the degree to which it is effectively implemented. 

Such implementation will require open minds and receptivity to change in all institutions that make up your criminal justice system: the judiciary, the defense bar, criminal investigators, and the procuracy.  And believe me, based on a 40-year career in governmental service, I fully recognize that it is no easy task to change the way governmental institutions do their business.  But I also know, by experience, that such change is possible.

At the outset, I must tell you that I am not a lawyer – much less a prosecutor – and I have no formal legal training, but my father and daughter are attorneys and I am surrounded by lawyers at the Embassy.  In addition, as a result of my career in the U.S. Foreign Service, particularly in Eastern Europe, I have truly come to appreciate the fundamental importance of the rule of law in making modern, successful democratic societies.  Indeed, I would suggest that the overall health of any democratic society today is measurable by the extent to which it is governed by its own laws.  People – 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 fair treatment and fair trials. People who consider committing crimes must know that will likely be caught and punished regardless of whether they are an ordinary citizen, a wealthy businessman, a law enforcement officer, or a high-level government official.  Businesses must know that they will not be subject to arbitrary raiding attacks and that their legitimate contracts will be honored.  All of these expectations should be met in a modern democratic society.

Prosecutors play a very central role in the creation and maintenance of the rule of law.  One of the United States’ finest Supreme Court Justices, who also served as our Chief Prosecutor at the Nuremberg trials, Robert Jackson once observed that “the prosecutor has more control over life, liberty, and reputation than any other person in America.”  The same could be said for all the countries in which I have worked. Prosecutors are and must be vested with a tremendous power in a criminal justice system: the power to marshal the state’s resources to publically accuse a fellow citizen of committing a criminal act, accompanied with the power to have that person brought to trial and potentially deprived of his liberty.  Unrestrained, that power threatens to not only destroy the individuals against whom it is directed, but also to tear apart the very fabric of a democratic society – to destroy the peoples’ trust in the rule of law.  However, when prosecutorial power is exercised responsibly, with systemic checks and balances, the power is simply one very important part in the engine of a fair system of justice.

The purpose of today’s roundtable is to discuss European standards and international experience in prosecutorial power, and specifically striking the right balance in a criminal justice system.  As I say, I am not a legal expert, but as I look around I see that there are many experts here today ready to share their diverse experiences.  This type of international dialogue brings value to all participants involved.  While each country represented here seeks a justice system that meets its unique history and needs, I would like to offer a few observations of what I suspect will be common threads throughout your discussions.

First, prosecutors can and should be held to a higher standard of conduct than any other lawyer in the justice system.  This is because the prosecutor is unlike any other advocate that comes before a court representing his client’s interests.  The prosecutor represents the State, and more particularly the people of the State.  As such, the prosecutor must not only seek to win convictions, but must also be responsible for assuring that procedural justice is achieved.  In other words, it is the prosecutor’s duty to assure that all proceedings are fair.  This obligation includes such things as assuring that the terms of your Criminal Procedure Code are respected and the defendant’s presumption of innocence is protected up until a judgment is rendered.  All of the prosecutor’s ethical obligations should be, to the extent possible, described in a Code of Ethics and prosecutors should receive regular mandatory training on their obligations.  Likewise, there must be a body that operates independently of prosecutors that investigates and adjudicates complaints of prosecutorial misconduct.  When the misconduct rises to the level of a crime, a criminal investigation and prosecution should occur.  I am sure you will hear about the U.S. Department of Justice system today, as well as how other countries handle complaints of misconduct.

Second, despite Constitutional restrictions, Ukraine’s prosecutors continue to exercise “general supervision” powers.  This extraordinary power to perform supervisory functions outside of criminal proceeding has been the subject of Venice Commission criticism in the past.  In order to meet your commitments to the Council of Europe and European values, this power ought to be eliminated in your reform efforts.  General supervisory duties outside the criminal law are particularly dangerous in transitional democracies and emerging market economies.  They are easily subject to political interference and when broad supervisory powers and particularly low salaries are combined they can form a dangerous mix.  Elimination of general supervision will eliminate some corruption threats and improve your overall business climate.
Third, Ukraine currently employs approximately 14, 000 public prosecutors.  On a per capita basis, this is an extraordinarily high number of prosecutors.   For instance, for every 100, 000 residents, the countries of France, Italy, Spain and Germany have between 3 and 6 prosecutors.  In Ukraine, the most recent information reflects approximately 21 prosecutors for every 100, 000 residents.  I am aware of no reasonable justification for maintaining this imbalance.  Of course, employing a high number of prosecutors, in and of itself, is not necessarily a problem.  However, when you combine a high number of prosecutors with low legitimate salaries, you create a ripe environment for corruption.  Therefore, in reforming the procuracy, it would be wise to focus on assuring that all of your prosecutors receive substantial salary increases to reduce the threats of corruption and abuse of power.  Whether that salary increase is funded by an overall reduction in prosecutors or some other means is a decision for Ukraine’s policy makers.

The procuracy is a cornerstone of your adversarial criminal justice system.  In part, your new Criminal Procedure Code contains restrictions that will, if implemented, provide a check against abuse of prosecutorial power.  However, effective reform must go beyond your criminal procedure code.  Ukraine’s criminal justice system has never received the international attention that it does today.  I urge you to choose a path of reform that protects the human rights of all Ukrainians, reduces corruption threats and meets your international commitments to reform your procuracy.  I wish you the best in today’s roundtable discussion.

Tetyana Pechonchyk from the Human Rights Information Centre has interviewed Kharkiv lawyer Serhiy Medvedev, whose name has often appeared here in connection with his defence of Yakiv Strogan.  It is thanks to Serhiy Medvedev that Strogan was finally, after 14 months in custody, released in March this year.

Serhiy Medvedev worked in the Prosecutor’s Office for 20 years before training as a defence lawyer.  He qualified in 2007 and began working in the Kharkiv Legal Aid Bureau which gives free legal aid in criminal cases.

Acquittals

Asked why the courts acquit less than one percent of cases, he explained it as being a system where they close ranks and all look after each other. Nobody wants conflict since it’s very easy to lose your job, they can always find some pretext.

Serhiy Medvedev says that the authorities are not only approving, but also stimulating this shameful situation since all you need to convict a person is a confession, whereas to get a person acquitted, you have to work, study all the evidence and material. 

This is not always about laziness. He says that he knows of cases where not only the district court, but also the court of appeal handed down acquittals, justifying their decision.  It was the Supreme Court (now it’s the High Specialized Court on Civil and Criminal Cases) that, without particularly going into the case, revoked those rulings and sent the case for further investigation.

“Why spoil the statistics of Prosecutor’s work with an acquittal?  Furthermore, the law enforcement bodies do everything to prove in court not even the guilt of a particular person, but mainly the lawfulness of the decision in the criminal case taken by the official. That’s, firstly the simplest version; secondly they have the demand hanging over them to solve the crime as quickly as possible. Thirdly and mainly, it’s reluctance and inability to professionally solve crimes.”

Yakiv Strogan

The case of Yakiv Strogan, he says, is simply unique.

He is accused of attempted murder yet the victim (who incidentally has already recovered) has only slight cuts which could have been caused, for example, by falling on broken glass.

In order to prove this I worked with an excellent specialist in the field of forensic medicine, Professor Mykola Tahaev. It was he who noted that in the hospital the victim had had three wounds treated, while the expert conclusion claimed for some reason that there were four wounds.

He says he is very concerned over whether the court will acquit Strogan. He says he hopes for an acquittal, but is almost certain that in order to try to justify the criminal investigators  the court will convict Strogan at least of deliberately causing light bodily injuries.

There are offices like the Kharkiv one in Khmelnytski and Bila Tserkva, and in their cases he sees no difference in quality and professionalism between the free legal aid offered and in cases where lawyers work for a fee.

With respect to the law passed by the Verkhovna Rada on legal aid, he stresses that they need to decide what kind of workload is optimum.

His dream

“I want my grandchildren to live according to laws which are observed by all, first and foremost, the State and officials.

So that there’s no need to give bribes, hide your income from the tax authorities. So that it’s like Lincoln once said, that nobody is above the law, and nobody believe. All comply with the Law”. 

IMI Chronicle of Freedom of Speech 2011

Roman Kabachiy from the Institute for Mass Information (IMI) writes that the traditional circle of enemies of the Ukrainian press has widened. It now includes media owners, the top management and the increasing role of journalists’ own “internal censor”. The continuing assurances from the authorities that freedom of speech is intact are not only at variance with the ratings of international NGOs, he says, but also with the IMI’s Chronicle of Journalists’ Rights Violations.

Physical force is often applied while journalists are carrying out their professional duties. They are often not admitted to public sessions of public bodies, and threatened with reprisals over high-profile investigations. The result is clear: the information realm is becoming less and less critical and there are an ever increasing number of taboo subjects.

Independent and opposition media, especially in the regions, are under pressure from the authorities, the tax service, the law enforcement bodies. The local authorities have returned to the practice of treating the press as if they’re there to serve their needs.

There is conflict with municipal and independent media, according to surveys taken among journalists, with the Mayor of Lviv; the Acting Mayor of Chernivtsi; the Mayor of Odessa; the Mayor of Kharkiv, as well as representatives of a number of regional administrations.

Roman Kabachiy writes that it took a public statement from editors of Odessa media publications for the President to instruct that the situation be dealt with, and suggests that this was against the background of an overt worsening in Yanukovych’s attitude to the Odessa Mayor, Oleksy Kostusyev.

One trend which is, according to one of the founders of the authoritative weekly Dzerkalo Tyzhnya, Volodymyr Mostovy, worse even under President Kuchma, is that journalists’ information is simply ignored.  His daughter, the Chief Editor of the newspaper says that journalist revelations are only dangerous because the person’s immediate bosses may find out how much the person is not taking above.  “Other consequences which in any civilized country would be fatal for him are impossible here”.

Mykola Savelyev from the Lviv newspaper Ratusz says in this connection that the greatest enemy of the press is the passive society which doesn’t react to journalist investigations.

There are few mechanisms in place and many journalists complain that the police and Prosecutor generally refuse to prosecute in cases involving obstruction to journalists carrying out their duties even in fairly flagrant cases.

In Donetsk on the Day of Remembrance for the Heroes of Kruty on 29 January this year, the ideological opponents of the right-wing participants in a gathering fell upon journalists. They wrenched away equipment, videos etc. According to Alexei Matsuka from Donbass News, the police refused to initiate a criminal investigation under Article 171 (obstruction) and sent them to the Prosecutor who also saw no need to do so. Matsuka believes that this is because the regional authorities don’t even want formal mention of infringements of journalists’ rights in the region.

The author writes that the police do not only fail to “notice” infringements, but are themselves guilty of using force and remain unpunished.  There have only been a few cases over treatment when journalists were covering the trials of members of the opposition that they have received apologies.

There are also more systematic actions by the police aimed at intimidating independent media sources.  In December the Internet Publication Levy Bereg issued a statement saying that the Interior Ministry’s Central Department for Fighting Cybercrime and Human Trafficking had demanded full information about the person or legal entity in whose name the site was registered. Levy Bereg stated that this was a clear attempt to get a (critical) site to get some of its authors – Tetyana Chornovil (who has investigated, for example, dubious dealings around the occupation by the President of what was once reserve land at Mezhyhirya- translator), to shut up.

During the last year there has also been an increase in pressure on the owners and top management on independent journalists or heads of editorial boards. One of the most prominent was the conflict between the owner of the 1 + 1 group Ihor Kolomoysky and the Chief Editor of the newspaper Gazeta po-kievski, Serhiy Tykhy. There are also quite often such conflicts in the regions.  On 29 September the entirely editorial team of the newspaper Ostrov Svobody resigned over alleged pressure from the head of the holding, Valery Fomenko.

There has been an increase in the number of dismissals of journalists after they raise “inconvenient” subjects on central TV channels.  A typical case was the dismissal of the presenter of the Money Programme Oleh Deineka on 1 + 1.

Journalists are increasingly afraid of their editors, editors of the media owners, and the owners of those in power. Surveys of journalists found that an “internal censor” was becoming a major factor, what the Chief Editor of the Korespondent.net site called the “greatest enemy of the press”.

Other journalists named journalists’ own laziness, lack of professionalism and infantilism.

Abridged from the article at http://osvita.mediasapiens.ua/material/6082

   Disabled access – or the lack of it – remains a major problem in Ukraine where public buildings often don’t even have ramps.  Between 500 and 1, 000 people in each regional centre are thus deprived of mobility.

The authorities generally claim lack of funding though it is a moot point whether in fact the money is lacking, or simply misspent, since the amounts quoted as being needed for putting in a ramp is exponentially higher than the amount a simple construction actually costs.  As lawyer Dmytro Zharyi can testify since he used his own money to have a ramp put in at the block in which he lives.  How long can you wait, effectively stuck, dangling in a State queue which scarcely moves? 

Just in Dnipropetrovsk there are around 200 people waiting for such a ramp, and it’s a real achievement if one person’s needs are met each year. 

Increasingly businesses etc are being obliged, including through amendments to legislation, to ensure access themselves.  The business wants to make money and the authorities have a lever – they can make obtaining and retaining a licence contingent on there being disabled access. 

Dmytro Zharyi decided to tackle these problems after a visit to the doctor, following which he tried to obtain the prescribed medicine from the chemist nearby.  Even private chemists are still within the healthcare system and so the mechanisms for control are that much greater.

What passed for a “ramp” was at best a way for rolling a pushchair up, but the angle basically corresponded to the stairs and there was no question of wheelchair access.

Since this was so clearly in breach of all regulations, Dmytro decided to stand up for his rights.  He assumed all could be resolved without the courts, and spoke first with the chemist’s management.  This proved fruitless and 6 months later he approached both the Chief Planning Department in Dnipropetrovsk and the Regional Inspectorate on the Quality of Medication asking them to look into the situation and take measures.  When they in turn did nothing, he was forced to turn to the court.  In his suit he appealed against the results of the assessment about the chemist, and demanded that the chemist’s licence be revoked. He provided an independent assessment which found that the chemist did not provide access for people with disabilities. The only ramp installed was not only in breach of architectural norms, but was dangerous.

Dmytro explains that according to a specific feature of the legislation in question, were his suit to be successful, this would close all the chemists of the entire chain.  He says that this involves over 100 chemists around the country.  He asked the court to demand to see the documents submitted by the firm in question to get a licence to prove that they had received it unlawfully.

Dmytro even had a visit from representatives of the chain. He presumes that they wanted to see whether this really was one man’s initiative, or provocation from their competitors.  And, of course, to get him off their back.

They didn’t succeed, though they may have had more luck with the court.  Certainly the evidence was all in the claimant’s favour.  At the end of the day there needed to be real disabled access and there wasn’t.  Yet the claim was rejected.

Next step the court of appeal.

The issue is too important and Dmytro Zharyi has no intention of giving up. 

A dangerous bill proposing to redistribute powers with respect to environmental protection could give corruption and plundering in Ukraine a whole new dimension

 Democratic countries are certainly right to be taking a firm stand on the politically motivated prosecutions of former Prime Minister Tymoshenko and other members of her government.  Unfortunately, however, the insistence on a change to one single legislative norm is taking place against a background of legislative initiatives placing the very foundations of a law-based democracy in jeopardy. 

 The 2010 judicial reforms have, as warned at the time, made judges considerably less independent and more malleable. One very recent amendment removes the requirement for judges to make income declarations public.  The motive seems fairly clear: keep them sweet– and submissive.  Another amendment likely to be passed in the near future will remove any pretence that judges are not hand-picked for particular cases.  The consequences of such moves for the rule of law need not be spelled out.

Others probably need to be, not least because of the soporific effect of oversized draft bills with mantra-like repetition of “reform”, “optimization”, etc.  When they deal with mechanisms for environmental protection, most people are likely to switch off. 

At their peril since Draft Law No. 10218, submitted by the President’s spokesperson in parliament, if passed, will have grave ramifications for Ukraine’s compliance with a number of international agreements and commitment to fighting corruption.

Clear warnings have been issued by environmental NGOs.  They even appeared to have been heeded by the Parliamentary Committee on Environmental Policy which on 11 April recommended that the bill be rejected.  Yet the bill is still being pushed, is on the parliamentary agenda for the 20-24 May session, and there are fairly good grounds for believing it could be passed.

The amendments proposed aim at greater centralization with a worrying and quite unjustified amount of power being vested with the Cabinet of Ministers. 

One of the changes would legislate a move first initiated in Decree No. 452/2011 and signed by President Yanukovych in April 2011.  This dissolves the territorial departments of the Environment Ministry.  In an appeal to the President, environmental NGOs pointed out that this entailed the « destruction of virtually the entirely State system of environmental protection created over the years of independence ».

The consequences are easy to understand if we consider the 30 thousand companies in Ukraine dealing with dangerous waste.  Instead of needing to get permits from one of 35 territorial departments of the Environment Ministry, they will now be forced to deal directly with Kyiv.  “Forced” may not be the right term since only responsible companies will be inconvenienced.  Those less inclined to take proper safety measures and consider the environment are likely to find the arrangement highly convenient.  The reduced staff at the Central Ministry will have to deal with all issues, including such permits. At best, the issue of permits will perforce turn into a largely formal exercise. At worst, it will become a source of corruption and place Ukraine’s natural environment and people’s health under even greater jeopardy.

The Environment Ministry’s ability to carry out environmental protection programmes, identify and react to infringements of environmental rights would also be seriously compromised.  Vital Environmental Impact Assessments would be at best shoddy.  This is of major importance since the amendments would also effectively remove the controlling powers of the Environment Inspectorate. 

The redistribution of authority would give quite unwarranted power to both the Cabinet of Ministers and local State Administrations. It is worth recalling the extraordinary events in May – June 2010 when the Kharkiv city authorities ignored huge public protest and breached decisions by the Environment Ministry in destroying, for shady purposes, a part of Gorky Park.  Nationwide and international protest over lawlessness and violent suppression of peaceful protest would be effectively eliminated by the proposed amendments, with local administrations receiving a free hand.

This is all in flagrant violation of Ukraine’s international obligations under the Aarhus Convention and other documents. 

Given the inadequate way in which the Cabinet of Ministers and local State administrations have exercised their current powers in this sphere, efforts to give them still greater power raise very serious questions regarding motives. 

There is a manifestly absurd proposal to abolish the National Commission on Ukraine’s Red Book with the Cabinet of Ministers and other executive bodies being left to consider proposals for adding animal and plant species to the Red Book.

The draft law is aimed at weakening independent control mechanisms, regional decision-making by competent bodies as opposed to interested parties, and consolidating power in the hands of the government and local authorities.  Any attempts to explain this as being to save money should be viewed against the government’s notorious generosity in providing for its own comfort and well-being.

Removal of proper controls under the proposed redistribution of power will open the floodgates for corruption and plundering, and be yet another blow to Ukraine’s democracy.   It’s been knocked quite enough already. 

On 10 May the results were presented of the nationwide monitoring campaign “Police under Scrutiny» which began this year on 31 March in 12 oblasts after a pilot run in November last year. The campaign is being run by the Association of Ukrainian Association of Human Rights Monitors on Law Enforcement which prepared the guidelines for public monitoring, as well as carried out training sessions for NGO activists and journalists. Several hundred activists from around the country have taken part in the monitoring and due to their energy and activeness, the monitoring has become ongoing.

Throughout April over 200 people took part in monitoring activities in different regions, checking the level of professionalism of patrol officers, access and quality of the local police stations, etc.

During Thursday’s press conference the participants highlighted the typical infringements found during the monitoring. 

The most widespread infringement among patrol officers was unwarranted checks of people’s documents and unlawfully looking through their things.  Such cases were seen in half of the cases where patrol officers were monitored.

In about 40% of the cases, when talking to the monitors, the officers did not give their name or position and rank, as required by law.

In a third of the cases the officers were unfriendly or took a biased attitude to the person they were talking to. This was especially true in the Donetsk and Poltava oblasts where monitors were actually threatened.

Petro Hryban from the Association of Monitors and himself a retired police colonel, stressed the need for such cases to be highlighted.

Mykhailo Kamenyev from the Regional Initiatives Foundation recounted how, on the last day of his monitoring in Kyiv, he tried to video unlawful behaviour by the patrol officers. For that he was detained without any grounds and taken to the Pechersky District Police Station. Colleagues acted swiftly and he was soon released since they realized they were in breach of the law.  He points out that not everybody is aware that this is in breach of the law.  He notes also that since officers often don’t give their names, etc, it can be difficult to register a complaint.  In other countries this problem is resolved with patrol officers having badges on their clothes with their numbers on them.

Yury Belousov from the Association said that an important result of the monitoring had been specifically the reaction of the Ministry of the Interior management, as well as its departments in the regions. Reports are to be sent to both the central and regional management.  He noted though that their previous recommendations about installing ramps in a number of police stations had not been carried out, however in most cases the complaints books had become available without needing to overcome the resistance of the officer on duty.

The reports in Ukrainian are available here:

http://umdpl.info/index.php?id=1336628622
http://umdpl.info/index.php?id=1336627023

Remembrance ceremonies took place in the Crimea on 18 May marking the 68^th anniversary of the Deportation of Crimean Tatars from their ancestral homeland in 1944.  For the first time in many years, the top people in government totally ignored the anniversary.  Given a number of details from Anatoly Mohylyov’s recent past, he might well have wanted to stay away however as Head of the Crimean Parliament, his presence was expected.  He is supposed to have been ill.. The Parliamentary Speaker was also absent, with his deputy there instead.  The Permanent Representative of the President in the Crimea and Deputy Speaker of the Verkhovna Rada (from the opposition Batkivshchyna Party), Mykola Tomenko did attend.

During the meeting, speakers called on the international community to declare the leader of Ukraine’s communists Petro Symonenko persona non grata.  The latter excelled himself on 16 May by stating in the Verkhovna Rada that on one day the entire Crimean Tatar people had switched allegiance to Hitler.  In spreading such lies, Symonenko is going against his own party which in the 1960s acknowledged as false the pretext used by Stalin to justify a terrible crime perpetrated against the Crimean Tatar people.

Based on  information at «Крым.Комментарии».(the photos also)
 

Russia’s most famous prisoner said on Monday that three women from the Pussy Riot band may have gone too far by protesting on a cathedral altar, but likened their trial to a medieval inquisition and said their prison regime may amount to torture.

Former oil tycoon Mikhail Khodorkovsky, who was tried in the same Moscow courtroom as the young women, called for leniency because of their age and said the way in which they were being treated brought shame on Russia.

Weighing into a debate surrounding the trial of Maria Alyokhina, 24, Nadezhda Tolokonnikova, 22, and Yekaterina Samutsevich, 29, his intervention may bolster accusations by President Vladimir Putin’s foes that the legal proceedings are politically motivated and part of a wider crackdown on dissent.

"It’s painful to follow events in Moscow’s Khamovnichesky court where Masha, Katya and Nadya are being tried, " Khodorkovsky said in a statement on his website. "The word ’tried’ can be used here only in the sense in which it was used by medieval inquisitors."

The trio are on trial for storming the altar of Moscow’s Christ the Saviour Cathedral on February 21 and belting out a profanity-laced "punk prayer" calling on the Virgin Mary to rid Russia of Putin. Their stunt infuriated church leaders and the Kremlin.

It also upset many Orthodox Christian believers for whom the cathedral is a sacred place of worship and its pulpit a place reserved exclusively for priests.

But Khodorkovsky - the 49-year-old former head of oil company Yukos who was arrested in 2003 and jailed the following year on fraud and tax evasion charges - pleaded their cause.

"The mistakes of radicalism can be excused by youth, " he said. "I call on all thinking, educated and simply good and kind people to send words of hope to the girls."

Drawing on his own experiences, Khodorkovsky - who remains unpopular among many Russians who still see him as one of the country’s "robber-barons" - said defendants in such a high-profile case were woken before breakfast and shuttled to court at the crack of dawn.

During an 11-hour day locked in a glass and metal courtroom cage known as "the aquarium", he said instant noodles were the only food served.

"I know what the aquarium in courtroom number seven is. They made it specially for us, " Khodorkovsky said, referring to his own experience during the second of his two trials.

"You feel like a tropical fish, " he said. "It’s hot. The air conditioning doesn’t circulate through the glass."

"IS THIS TORTURE?"

After a court session lasting late into evening, he said the women would arrive back at their cells after dinner and probably only have time to sleep about three hours before being woken for the next day of the trial.

The only time to shower is on Saturday, he added.

"I don’t know how the girls can endure it, " he said. "The judge of course knows about this regime. Is this torture?"

The Pussy Riot trio face up to seven years in jail in a trial that began on July 30 and is moving swiftly towards a conclusion. The defence team have said the verdict could be announced this week.

Khodorkovsky’s comments are likely to fall on deaf ears in the Kremlin - it is well known that there is a deep-seated personal enmity between Putin and the jailed oligarch.

His intervention is also likely to have limited resonance among Russians, many of whom have no sympathy for a man who was once the country’s richest before falling out with Putin a decade ago.

The first week of hearings in the Pussy Riot trial divided the mainly Russian Orthodox Christian country. Some believers want tough sentences but many others are calling for leniency, though few approve of their unsanctioned altar stunt.

Putin himself last week told reporters in London that there was "nothing good" about what the women had done but said they should not be judged too harshly.

The women said they did not intend to offend believers but wanted to highlight the close relationship between Putin and the Russian Orthodox church, whose leaders backed him in his successful presidential election campaign earlier this year.

At hearings last week, the women looked thinner and paler than when they were jailed. Last week Alyokhina felt ill and received medical attention during the trial.

However, the court has ignored complaints by the defence lawyers that the women are being deprived of food and sleep and are not getting a fair hearing.

Putin’s critics regard Khodorkovsky as a political prisoner and hold up his case as an example of the Kremlin’s ability to influence the judiciary.

But it is perhaps the Pussy Riot trial, because of its immediate impact and the colourful nature of the case, that is being seen as the latest test of his tolerance.

Critics have accused Putin - who returned to the presidency in May for a third term after the biggest protests against him since he rose to power in 2000 - of presiding over a new crackdown on dissent.

They have held up a tough new law that tightens control over foreign-funded lobby groups as evidence of that along with stricter Internet rules and a sharp rise in fines for protesters.

(Additional reporting by Maria Tsvetkova; Editing by Timothy Heritage and Andrew Osborn)

Oleg Orlov (left) and Sergei Kovalev

On Tuesday, 15 May, two prominent Russian human rights defenders –Sergei Kovalev and Oleg Orlov published an open letter in which they call on members of the Human Rights Council under the Russian President to step down.  This follows decisions by three prominent members: Yelena Panfilova,    Svetlana Gannushkina and Dmitry Oreshkin to refuse to serve on the Council any longer.

Sergei Kovalev and Oleg Orlov stress that they will respect any decision their colleagues make, but feel they must present their thoughts on the subject “if only because both of us at various times were on similar consultative structures under the President of the RF and both left for reasons similar to those presented here.

Without cooperation with the authorities, it is extremely difficult for human rights organizations to work fully. Such work requires constantly approaching the authorities at different levels with recommendations, applications, demands, requests, expert assessments and so forth. “

They explain that many believe that you shouldn’t reject this cooperation with the authorities since it can help to improve the human rights situation as a whole or defend an individual’s rights. They agree but with some qualification.

“With pretend democracy the authorities constantly use cooperation with civil society and structures created for such cooperation specifically for imitation, as a screen, curtain, decoration, hiding the reality, the authoritarian nature of the state system. The harm from such cooperation, both for our common cause and for our organizations, as well as for the situation in the country clearly outweighs the possible positive results, even if we are talking about help to specific people.

The presidential “elections” have just passed. You could call them elections if that undertaking had met the requirements of equal, transparent and political competition, justice and honesty. There was none of that. Instead there was mass scale vote rigging during both the voting and the vote count.  The civic movement whose main aim was to observe the elections has clearly indicated the scale of the vote-rigging and falsification. Our human rights community contributed greatly to this civic movement. Outrage over the rigging of parliamentary and presidential elections led to a mass protest movement which was essentially in defence of rights since it was based on the demand to observe human rights. Awareness is spreading in society of the present regime’s illegitimacy, both the President’s and the legislative body. This illegitimacy does not preclude dialogue between the public and the authorities, but it must be dialogue, in which the public are equal partners. Can a consultative body under the President serve as such a platform?  We believe that it cannot.

For many years society was silent, now a significant part of it is prepared to fight for civil and political rights, using peaceful and non-violent means to create the conditions for the formation of a new – legitimate – Russian power structure. Without this there can be no real reforms which Russia so needs – judicial, police, army, penitentiary and others. The human rights society must take part in this struggle.

Will you be able, through your advice and recommendations, to influence the presidential regime so that it moves towards meeting the lawful demands of the protesters?

Influence as advisors under a person who gained his post through pretend elections? Under a person who took up office in the capital’s centre, cleared of its citizens and marked by mass unlawful detentions of citizens? Under a person whose political career was built on the systematic denial of the idea of human rights?

It would be naïve to hope for this.

More likely, by remaining in this Council, you who have devoted your entire lives to defending human rights, may do harm to Russian civil society, involuntarily help to legitimize an illegitimate regime. Regardless of how independent the Council is in its statements and actions, it will become a screen, a decoration, concealing the anti-law nature of the current regime. On the other hand, in the eyes of a considerable part of the civil movement your participation in the work of the Council could discredit the human rights community as a whole.

All of this could have highly regrettable consequences for the future of Russia’s civil society.

Yours sincerely,

Sergei Kovalev

Oleg Orlov

Sergei Kovalev is a former political prisoner, the first Russian Federation Human Rights Ombudsperson and presently the Head of the Russian Memorial

Oleg Orlov is  Head of the Memorial Human Rights Centre