VIOLATIONS OF CIVIL RIGHTS AND FUNDAMENTAL FREEDOMS DURING THE ELECTION PROCESS: A SUMMARY OF REPORTS FROM HUMAN RIGHTS ORGANIZATIONS
During the presidential election campaign there have been many cases where voters rights, other civil rights and fundamental freedoms have been violated. In a large number of cases in Ukraine there is no effective legal protection against such violations.
During this election campaign we have seen pressure exerted on voters on a mass scale. Such practice leads to a rising atmosphere of fear and lack of freedom in society and limits the human right to free choice.
In particular, administrative pressure is being applied in state and municipal institutions and organizations: the heads of factory workshops and departments are demanding from their subordinates that they put their signatures on candidates sheets. Doctors ask patients who have come for an appointment to sign these sheets, teachers are forced to visit the parents of their pupils, employees of municipal housing offices visit the inhabitants of flats within their jurisdiction, etc.
Employees are coerced into going to political rallies and meetings in support of the presidential candidate Viktor Yanukovych. An example would be the political rally and concert in support of Yanukovych held on 14 July on Kharkivs central square, where, according to different estimates, there were between 50 000 and 100 000 people. Those present did not even conceal the fact that they had been forced to come to the rally by their immediate superiors. Such political rallies have been held in several district centres of Kharkiv region.
There have been cases where people were dismissed because of their political views. A teacher, for example, from Kharkiv region, lost her job after attending a forum of educationalists, organized by «Our Ukraine».
For many people occupying managerial positions in State executive bodies or bodies of local self-government, whether or not they retain their jobs has been made dependent on the outcome of the election campaign, and this is a major factor in the widening practice of exerting administrative pressure on voters.
In a large number of cases, whether peoples rights, in particular, social and economic rights, are implemented hinges upon their level of political activeness and support for the State candidate.
Numerous instances have been noted where false or offensive material has been disseminated about Presidential candidates, with the law enforcement bodies taking no measures to either find those responsible, or to put a stop to such illegal activity. Over a period spanning several election campaigns there has not been one court sentence in cases involving the dissemination of false information, by means of fake newspapers, leaflets, or by producing them without indicating their source or publisher.
The right to peaceful assembly is also being violated on a mass scale. Courts ban political rallies, demonstrations, and pickets, usually with no grounds, and in several cases the police have stopped them taking place without a court warrant which is in violation of Article 39 of the Constitution of Ukraine. For example, on 30 August in Odessa region (Kominternivsky district) a political rally was broken up by the police without any court order banning it.
There have been cases of administrative or criminal investigation by law enforcement bodies of campaigners from opposition candidates teams, which have been carried out without any regard for the numerous violations of procedural legislation. This is a violation of peoples right to freedom and security of person.
For example, the police have, on a mass scale and throughout Ukraine, been stopping buses and taking necessary documents away from drivers taking people to political rallies in support of Viktor Yushchenko.
Campaigners, particularly of opposition candidates, have been regularly threatened or detained while distributing campaigning material. Several of them have complained to the Prosecutors office or to the court about these illegal actions.
Another instance of persecution for political activities was seen in the Chernihivsk region. On 21 July, in the Pryputsk district department of agriculture and food production, a state institution, a representative of «Our Ukraine», M. Kiryeev, found a campaign stand in support of Viktor Yanukovych, this being an infringement of Article 64 of the Law of Ukraine «On the Ukrainian Presidential elections». Conflict arose which M. Kiryeev says led to his being beaten up by representatives of the regional team of Viktor Yanukovych. Human rights groups have learned of another incidence of conflict between the teams of presidential candidates Viktor Yanukovych and Viktor Yushchenko on 27 July. In the evening of that day, the nationwide mass media circulated information that there had been an attack on the regional centre of the presidential candidate Viktor Yanukovych, and that the police had announced that they were looking for three participants in the conflict, who were all representatives of the regional headquarters of Presidential candidate Viktor Yushchenko (V. Labazov, V. Manko and M. Kireev). The latter found out about this only from the news broadcasts of central television channels.
The next day, V. Labazov, V. Manko and M. Kireev, all assistants to State Deputies of Ukraine, who of their own will arrived at the local police station, were questioned. After the interrogation, still in the police station, V. Labazov, who is the head of the regional election headquarters, was taken into custody and charged until Article 296 of the Criminal Code of Ukraine (hooliganism). In connection with a sharp worsening in V. Lazarovs state of health as he was being detained, he was taken, under guard, to a hospital where he was diagnosed as having had a mild stroke (given a medical condition of chronic hypertonic illness and ishchemic miocardia). Yet, despite a significant deterioration in his state of health, exacerbated also by the hunger strike he declared when detained, he was taken to a temporary detention cell.
In violation of the demands of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as a number of Ukrainian legislative norms, a lawyer was only allowed to see the accused on 2 August. On 6 August a hearing took place of the Pryputsk district court of the Chernihivsk region, during which the court issued a warrant for the arrest of V. Labazov and for his detention in a pre-trial detention centre. According to information we have received from M. Kiryeev and V. Labazovs mother, during the hearing there were several excesses, which suggest a biased attitude to those detained and the infringement of the right to a fair trial.
Human rights activists are in possession of material (both printed, and recorded using technical devices), which provide evidence that V. Labazovs actions were in no way criminal, that he, together with V.P. Manko and M. Kiryeev, was only trying to establish that an infringement of Part 15 of Article 64 of the Law of Ukraine «On the Ukrainian Presidential elections» had taken place. They themselves called police officers to the place of the conflict, expecting an impartial attitude to the situation and the taking of a protocol record of the infringement. The outcome of such law-abiding actions proved to be the launching of criminal proceedings on a charge of hooliganism, a court order to hold V. Labazov in a pre-trial detention centre, and the demand that V.P. Manko and M. Kiryeev give a written undertaking not to leave the area. At the same time, neither the law enforcement officers nor the court were at all interested in the actions of an employee of the headquarters, Y. Khodyuk, who during the argument inflicted light bodily injuries on V. Labazov which are recorded in a medical report. The Chernihiv Appeal Court decreed that V. Labazov be released from custody and sign an undertaking not to leave the city, however the criminal charge against him is still under investigation.
We consider that the actions of the law enforcement bodies and the court in relation to B. Labazov are in violation of the demands of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of the Constitution of Ukraine. In view of this, we believe that the «Labazov case» is of a political nature and is an example of persecution for ones political activity.
There have also been cases of unlawful searches. In Kirovohrad, for example, on the pretext of checking the premises after receiving information that it had been mined, the police carried out a search and removed documents from the election campaign headquarters of one presidential candidate. In Kryviy Rig the premises of the campaign headquarters of the presidential candidate, Oleksandr Moroz were searched for 8 hours.
Such unwarranted actions are facilitated, among other factors, by the shortcomings in Ukrainian criminal procedure legislation. This may become significantly worse if the Draft of the Criminal Procedure Code is passed, since the latter substantially decreases guarantees of protection of rights and freedoms during pre-trial investigation even in comparison with existing legislation, and does not comply with European standards in the field of protection of human rights and fundamental freedoms.
Given all this, the reaction of «Our Ukraine» and of other participants in the election process to cases of secret surveillance and other flagrant violations is inadequate. 92 complaints to the Central Election Commission (CEC) constitute an extremely small figure, especially given that it would be hard to expect any prompt, effective or impartial review from the CEC (as it stands on 14 August). We consider that these participants in the election process are neglecting such means as lodging complaints in the court about unlawful activity or the lack of activity of State executive bodies and bodies of local self-government, and of their officials, the grounds for which in all of Ukraine are ample. The courts should be inundated with such complaints, yet this is not happening. There are several reasons for this.
During the Presidential election campaign, many human rights activists have encountered the problem of illegal actions carried out by State executive bodies and bodies of local self-government. Human rights activists have attempted to have them recognized as illegal as they clearly violate the Law of Ukraine «On the Ukrainian Presidential elections». However, Ukrainian courts have begun to turn down these complaints, since, on the basis of this election law, one can only complain about the actions of participants in the election process, and State executive bodies are not participants.
For example, on 20 July 2004 the Leninsky district court in Luhansk suspended proceedings in a case based on a complaint from C.G. Dyakov that the activities of the Head of the Luhansk regional administration O.S. Yefremov, the Head of the Luhansk regional council V.M. Tikhonov, the press service of the Luhansk regional administration, were violating the rights and procedure of equal pre-election campaigning opportunities. The court justified its decision on the grounds that the above-named were not participants in the election process, and the law on presidential elections makes it possible to complain about the actions or the inaction only of participants in the election process.
In another decision of the court in response to complaints from human rights activists about illegal actions by State executive bodies and bodies of local self-government (their direct participation in the pre-election campaign), it was ruled that these actions were not carried out during the fulfillment by them of their official duties, which is an obvious twisting of legislative norms and of the principle of rule of law.
A similar shortcoming of court proceedings is the inability, in accordance with the Civil Procedure Code, to demand at the same time both moral compensation and material damages, caused by the actions or inaction of State executive bodies. The situation is also complicated by the fact that the time limits for considering appeals are often not kept to and appeals are quite simply often not considered before the end of the elections. In this way, the purpose of the judicial protection loses all meaning.
All of the above shows that judicial protection has remained of little effect during the election campaign. This is explained, on the one hand, by shortcomings in the law on the Presidential elections, and, on the other, by the fact that courts use any possible grounds for turning such complaints down or for dragging out their consideration. Citizens are also constantly being intimidated by State executive bodies and by law enforcement agencies, as a result of which they do not wish to actively defend their rights.
The removal of the right of civic organizations to have their observers at the elections is of concern.
Discrimination based on citizenship, used by the CEC in its practice of refusing to register Ukrainian citizens as observers for international organization, is also unwarranted.4 September 2004