Human Rights and Fundamental Freedoms in Ukraine (1989 – 2004)
Ukrainian human rights organizations have for the first time been able to present a report on the situation with regard to human rights in Ukraine in 2004. Since this is the first annual report, we feel it to be appropriate to take a retrospective look at the situation with regard to human rights in general during the period 1989 – 2004.
Before ‘perestroika, nobody except dissidents spoke seriously about human rights in the USSR. Although the USSR was a party to the UN pacts of 1996 and other international treaties in the field of human rights, and had signed the Helsinki Accords in 1975, it had no intention of fulfilling its obligations.
Soviet lawyers even at the beginning of the 90s were still referring to human rights as “a bourgeois invention”, and up to the middle of the 80s, nobody had any idea about the Universal Declaration of Human Rights, not to mention other documents, even though these were confiscated when dissidents were subjected to searches as anti-Soviet documents, which, in fact, they essentially were, of course. Human rights activists, the vast majority of whom had a purely intuitive concept of human rights at that time, and who seldom used the appropriate terminology, were severely punished for publicly expressing their views. Yet it was they who provided the moral and intellectual support of the intelligentsia. In Ukraine large numbers of human rights activists were most often involved in the national democratic movement. Here repression was particularly fierce, especially towards of those who defended their national rights.
At the same time, by the middle of the 80s, it was quite clear to anybody who spent any time thinking about the situation in the country that changes were needed. The Chernobyl disaster speeded up this process throughout society. The situation began to change radically during the Spring of 1987 when a huge number of prisoners of conscience were released. People stopped being imprisoned for their views, in fact, quite the contrary: their views began to be listened to, and their ideas, for which they had previously been persecuted, now began to be implemented. Books which had previously been labelled ‘anti-Soviet, and which people had been imprisoned for distributing or even for holding, were now published. It became possible to create open associations which were truly free from state control. We saw the appearance of the first cultural, ecological, socio-political, and with time, purely political civic organisations. ‘Samisdat was replaced by an independent press. Public actions, organised ‘from below began to be held – gatherings, political rallies, demonstrations and pickets. The civic democratic movement which began in 1987 in Kiev and Lviv, by the end of 1989 had spread to almost every city in Ukraine. Its rapid growth was encouraged by the elections to the Supreme Soviet of the USSR in 1989 and to the Supreme Soviet (Rada) of Ukraine and to Local Soviets in 1990, where representatives of the civic movement were elected in cities, and in Western Ukraine, also in rural areas. It should be mentioned that the main aims of the movement were at that time to defend national rights and to gain freedom from rigid state control of different spheres of civic life, most importantly from control of means of mass communication, literature, art and religious life.
The civic movement in Ukraine of 1987 – 1991 developed in general in a way typical for the post-totalitarian area, although with a slight time lag: in the middle of 1991 it was at approximately the same stage as the Baltic States by the middle of 1989. It was, moreover, extremely uneven and heterogeneous. In western regions it was more of a mass movement and was overtly nationalist and democratic in its orientation. As one moved further east and south, the number of supporters of nationalist ideas became fewer and fewer. In the east, the civic movement defended general democratic values, was limited to large cities and was much weaker. Here, right up to the end of 1989, the display of a national flag could lead to a person being punished for an administrative offence, and even imprisoned for several days. All political parties which appeared around the beginning of the 1990s were nationalist-democratic, were headed by former political prisoners, and had programmes which expounded non-violent methods of opposition and observance of human rights. On the whole, the democratic movement at that time defended human rights spontaneously and unconsciously in that it favoured a move towards greater freedom for Ukrainian society.
The August coup and subsequent collapse of the Soviet Union led to a fundamental change in this situation. Ukraine became an independent state for all that Ukrainian society was not yet ready for this. The gaining of independence immediately highlighted the differences in approaches to resolving main issues, differences in the general world views of civic activists who had previously been united in a common aim – the democratisation of civil life, and in having a common enemy — the communist regime. Internal conflicts split the previously united movement, disagreements and the increasing worsening of the socio-economic situation led to a thinning of their ranks and a loss of public support. Although the ideological barriers had come down, and the communist elite had temporarily become subdued, with a large part of them supporting independence, the democratic movement was not able to overcome these problems. The degree to which society was not prepared for change, the general disorientation, ‘chaos in the minds of a critical mass of the population were determining factors for the lack of political and economic reforms and impossibility of making a rapid start towards democratic transformations in a now independent country. The sphere of freedom did not widen in those years, and in many ways, actually became narrower.
The main reason for this was the weakness of Ukraines democracy. Communism in Ukraine had not been defeated. Ukrainian society, ravaged by the mass political repressions of the 30s – 80s, was split into ‘easterners and ‘westerners, and psychologically not ready for independence, and incapable of effecting a change in the political elite. Ukraine did not go through the process of de-communisation that Poland, the Czech Republic, Hungary and other post-totalitarian countries experienced: it began with the prohibition of the communist party, and ended there. The Soviet administrative and directive system, with all its inherent contradictions, was however retained. The former political elite virtually entirely stayed in control at all levels of power. This can partially be explained by the general conservatism of Ukrainian society. It is no accident that an ex-leader of the ideology department of the Central Committee of the Communist Party of Ukraine, Leonid Kravchuk, became the first elected president of Ukraine, despite the fact that he had stated publicly that he knew nothing about the artificially induced famine of 1933. More than 60% of Ukrainian voters preferred him to the former political prisoner, Vyacheslav Chornovil. The relaxed, familiar Kravchuk seemed closer.
Human rights in those years were seldom mentioned, with literally only a few in this huge country concerned about them. The vast majority of Ukrainian human rights activists had already entered politics during the second half of the 1980s and were now involved in the building of the State. In the autumn of 1991, it suddenly became clear that there were no human rights organisations in the country, that is, no civic groups, whose aim was not to obtain and use power, but rather to monitor activities, collect, collate and disseminate information about the situation as regards human rights, to help citizens in various ways to defend themselves from organised force, imposed by the State, providing advice, legal, material, moral assistance, etc, and analysis of the activities of various branches of State power, organising monitoring of these branches and a counter to systematic violations of human rights. Such structures needed to be created from scratch, and this process began. In spite of the enormous efforts made and isolated successes (the active and fruitful participation in the constitutional process, drawing public attention to the huge number of executions, protecting people from criminal persecution and, in some cases, brutal violations of human rights, the translation into Ukrainian and dissemination of the fundamental body of international documents relating to human rights, innovative ways of teaching human rights in schools by dedicated teachers, and so forth), they could not have a vital influence on events.
Having waited a little and looked around, the Ukrainian nomenklatura (the political elite) understood that nobody was seriously threatening to usurp their position and began to organise the state to suit their aims and interests, principally that of increasing their personal wealth. The fact that in the process whole areas of the economy were devastated concerned virtually no one. Meeting with practically no opposition from society, the nomenklatura, which was closely linked to business and state bodies, became more and more powerful, providing stark confirmation of the old rule: the state can do anything with people if the people let them do it. A young, initially quite passive, State began to gradually stagnate into a form that was increasingly unacceptable for the general population: it became more and more concerned with serving those in power while increasingly indifferent to the fate of all others and aggressive to anybody who expressed dissatisfaction with the system of relations which was developing.
With the election of Leonard Kuchma President of Ukraine, the process of personal aggrandizement of the nomenklatura, the creation of financial-oligarch clans and increasing poverty of wide layers of the population gained momentum and became more brutal. The hopes of many that a strong president-technocrat, as Kuchma “the bulldog” seemed to be, would carry out reform proved to be suicidal illusions. Faith in strong executive (presidential) power has never proved justified, government structures are slow to reform and cannot keep up with the fast development of events. Paternalism was supplemented by an information crisis, the direct dictatorship of executive structures over society, financial and economic extortion by a bureaucracy which had not internally changed to become accountable to citizens. In the economic sphere, our country, unfortunately, had become bankrupt, and culturally it seemed provincial. The interests of the bureaucratic apparatus in a whole range of political situations proved too strong, and social activity was, accordingly, undermined.
According to Article 3 of the Constitution of Ukraine “to affirm and ensure human rights and freedoms is the main duty of the State”. Yet the Ukrainian state appeared to be incapable of fulfilling this duty, particularly given it was itself the perpetrator of human rights violations, and since civic control over the actions of the government in many areas was non-existent or weak, these violations became more and more widespread and substantial. Some interrelated trends which are highly dangerous as far as human rights are concerned gradually strengthened:
1. The administrative arm of the State strengthened together with the will to strictly regulate life in any sphere (particularly economic), which significantly restricted individual liberty. People remained, as before, defenceless and dependent on the State machine, while those who, by engaging in business, sought to become economically independent, found themselves in the clutches of fiscal authorities, whose administrative procedures and methods of punishment became more and more sophisticated. The consequences of this for the expansion of business were fatal. It is not appropriate to talk of freedom of enterprise in this situation. In the country, the tax system seemed designed to render legal business impossible, and therefore everybody was forced to break the law, and was therefore vulnerable. However the bodies which could inflict punishment, worked selectively: they repressed those who supported the opposition financial, or who tried to be independent (Boris Feldman, the head of “Slovyanski” bank is just one example) and who broke the unwritten rules of behaviour in the system of inter-clan relations which had developed. With the intensification of the political conflict between those in power and the opposition, the policy of the tax authorities became accordingly more repressive, the latter effectively turning into a control bodie, and to a certain extent beginning to fulfill the same role in Ukraine that the KGB had had in the former USSR. Those in power did everything to make sure that only business which was closely linked with them could succeed.
2. Poverty and social inequality rose. According to official statistics, at the end of 1999 (this was the harshest year for Ukrainians) at least 30% of the population had an income below the poverty line (that is, the low income point, below which social security assistance is paid – 73.7 hryvna, while the average salary was 155.5 hryv. a month, and the subsistence minimum was 220 hryv.) The divide between the income of this part of the population and that of the 5% of the wealthiest people grew wider and wider, and was already five or six times greater than the corresponding divide in countries of Western Europe and USA. The social and economic rights declared in international pacts and guaranteed by our Constitution (their inclusion in the Constitution was a long despised Soviet trick!) – the right to an adequate standard of living, to social security, to employment, to health protection, etc – seemed a total mockery. Violation of these rights was most significant. The State had never actually defined “an adequate level of nourishment, clothing and housing”, and could therefore with impunity fail to fulfil the obligations that it had taken upon itself with relation to the elderly, the disabled and families with many children. Widespread delays of many months in paying salaries and pensions from the state budget, pitiful assistance to families with many children, the allocation to those with oncological diseases of 3.7 hryv a year (!) for medication, the closure of entire units in psychiatric hospitals, stopping the issue of medicine to chronic psychiatric patients (this list could go on and on) – all these typical features of the government under Evhen Marchuk, Pavel Lazarenko and Valery Pustovoitenko were seen in popular perception as a violation of the right to life, which is understood in our country in a different way than in western countries, where the issue is one of deprivation of life in execution of a sentence of court. As a result of a demographic crisis, caused in the first instance by social and economic factors, the population of the country is decreasing by approximately 400 thousand a year. The government under Yushchenko as Prime Minister succeeded for a short time in countering these trends. Having changed the conditions of work on the energy market, and forbidden barter, the government achieved such a successful increase in State revenue that in the year 2000 State revenue exceeded expenditure. As though with the waving of a magic wand, the budget debt from salaries and pensions began to disappear, pensions were increased, foreign debt decreased and its economic growth rate made the country one of the most dynamic in eastern Europe. The income level of Ukrainians began, albeit very slowly, to rise. The poverty level for the first half of 2000 was set at 90.7 hryv., for the second half – 118.3 hryv, and for 2001 — 153 hryv. After the dismissal of Yushchenkos government, this positive trend continued, but at a significantly slower pace. According to statistics from the Ministry of Employment and Social Policy, at the beginning of 2002 at least 25% of the population had income below the poverty line, with the income of half of these people no higher than 120 hryv. a month. Due to a sharp fall in State revenue, there were again delays in paying salaries in the state sector, while the much trumpeted pension reform proved to be aimed exclusively at former state officials and had practically no effect on lightening the burden of poverty of those with little. Yet, nonetheless, the income level of those who were active and wanted to work, albeit slowly, did rise. A large role in this was played by the 7 million Ukrainians, forced to work abroad. An increase in number of births led to a slowing down in the demographic decline. However the rise in prices to a large extent negated the growth in income, and a large part of the population (by our calculations, approximately 22—25%, still has an income on the poverty line or below.
3. Political conflict gradually turned into a situation where opponents were stifled using any means, in particular, with the help of state bodies, including those of law enforcement. This was demonstrated clearly in the election campaigns of 1998, 1999, 2002, 2004 and the referendum of 16 April 2000. Infringements of political and civil rights during the elections and referendum were the most serious of all the years of independence. Voters were flagrantly and persistently pressurised to make ‘the correct choice, and there was practically no chance for any opposition candidate to have contact with the electorate through electronic means of mass media. No means were barred when it came to applying administrative pressure to ensure the desired result, and the bodies of executive power turned both the elections and the referendum into a show which elicited no other feelings, than humiliation, shame and outrage.
Following victory in the 1999 elections, the presidents team went on the offensive, in order to crush dissent once and for all, ignoring in this all principles and norms of the law. First of all, a coup was effectively organised in parliament. The actions and decisions of a ‘parliamentary majority which met away from parliament in another building all together were declared legitimate without any grounds whatsoever. By voting again for the key leadership positions in parliament and on parliamentary committees, and taking a number of other decisions in the absence of the minority, the majority fundamentally violated universally recognised international standards of parliamentary democracy. The next step, which was aimed at effectively subordinating parliament to the President, was the Referendum of 16 April 2000 on introducing amendments to the Constitution, supposedly at public request, but in fact, following a presidential initiative. The referendum was a flagrant violation of the Constitution, both with regard to the introduction of addenda to it, and procedural guarantees for expressions of the will of the people, and, most importantly, in relation to Article 3 which proclaims the dignity of a human being to be the highest social value. Coercion of voters and intimidation were of a total and thoroughly idiotic nature: from doctors collecting signatures in support of the referendum from their patients, to teachers taking school bags away from their students so that their parents would come to school to collect their childrens bags, and would also vote. Students and their lectures were ordered by the administration of their institutes to bring documents confirming their participation in the festival of democracy. Nonetheless, the referendum was a flop, with both the opposition and society as a whole finding enough strength to counter this national farce. However society in general was still weak, and those in power strong, and determined, as before, to keep total control. This was clearly seen in the parliamentary elections of 2002. Having mobilised all resources and yet been abjectly defeated, the party in power succeeding through intimidation, blackmail, and bribes to form the biggest faction in parliament, thus stealing victory from the bloc “Our Ukraine”. In order to retain power-giving authority, other drafts for reforms to the Constitution were pushed, the carrying out of which was also of an imposed natured. The opposition succeeded in defeating these attempts to crush constitutional rule, however the issue regarding amendments to the Constitution to suit those in power remained open.
The case of Gongadze and Major Melnichenkos tapes, as well as the activity of the Committee “Ukraine without Kuchma” speeded up the process of confrontation of those in power and the people, and its formalisation in the political field at an institutional level. After the dismissal of Yushchenkos government, it became clear that a political opposition had appeared with all chances of changing the course of events in the country. The political confrontation of those in power and the opposition became more and more ferocious and turned into open conflict during the election campaign of 2004.
4. Criminal and legal policy became increasingly brutal. Torture and inhumane treatment during preliminary investigation and during questioning for the purpose of extracting a confession, became an everyday occurrence, most often remaining unpunished or, worse, being seen as normal. This leads to a spread of arbitrary rule and a sense of impunity in the law enforcement bodies on the one hand, and an increased feeling in all others of being defenseless, on the other. The level of trust in the police dropped during these years by 5 – 12% (depending on the region). Our country was a record holder for the number of prisoners per head of population and for the number of death sentences passed in that period. The number of people convicted of crimes rose from 108,500 (35% of whom were given prison sentences) in 1991 to 222,200 (37% receiving prison terms) in 1999. The problem of overcrowding in pre-trial detention centers (CIZO) became more and more serious. At the beginning of 1994 38,9 thousand detainees were being held in CIZO with official space for 11,300 people, while by the end of the year 2000 this figure stood at 46,2 thousand, while the number of official places had risen to accommodate only 1800 more detainees. Despite recommendations from international organizations to shorten the length of time spent in custody during preliminary investigation, this remained unchanged, with the maximum custodial period standing at 18 months. Nor was there any success in introducing limitations on the periods of summary detention in custody during investigation, time for familiarizing oneself with the case and court procedure. Despite the fact that judges sent approximately each tenth criminal case away for supplementary investigation, it was not uncommon for people accused to spend years in pre-trial detention centers, although innocent, simply because there had been no verdict in their case, and a judge would not dare either acquit them or change the preventive measures. Incidentally, the number of acquittals during all those years did not exceed 0,35%. The conditions of custodial detention in pre-trial detention centers were in themselves harsh and inhumane. The acute worsening of the economic situation was reflected also in financing of CIZO and prison institutions (UVP) – expenditure on food during those years fell to 8—12 kopecks a day for each prisoner between 1998 — 1999, and on medical care – to 4—7 kopecks. Such pitiful financing can explain the high percentage of illness and high mortality rate in places of imprisonment. In 1999 3081 prisoners died, which almost equaled the mortality rate in the country as a whole (14 deaths in each thousand of population) and this is despite the fact that the vast majority of prisoners are young people fully able to work (almost half are under the age of 30).
The introduction of a new Criminal Code, and court control over arrests, did not ease the problems with criminal and legal system as had been expected. The repressive nature of criminal and judicial policy remains at present intact. The number of those convicted of a crime and imprisoned is decreasing only very slowly. The number of people suspected of a crime, where the court imposes precautionary custodial measures has not fallen, and thus the conditions of detention in pre-trial detention centers remain harsh. The general number of prisoners remains on the level of 190 – 200 thousand. As a result of increased funding of the criminal executive system, there has been a fall in the mortality rate, however it remains relatively high. The problem of tuberculosis in prisons is not being adequately addressed.
The reform of the judicial system has stalled. It should be noted that people are now seeking redress from the courts much more often. In 10 years the number of civilian suits has increased more than 2.5 times, while the number of complaints about unwarranted actions (or inaction) of state executive bodies and state officials are 50 times higher. The courts are now more obviously seeking to be independent. A number of decisions were taken in cases which gained publicity, which went directly against the wishes of executive bodies, leading to an outburst of irritation from the high-ranking state officials in the country. The former Head of the Supreme Court, Vitaly Boiko, as well as his deputies and judges of the Supreme Court spoke frequently of courts being dependent on the executive and of cases of interference in their activity. Judges salaries also leave a great deal to be desired.
There have been some changes for the better as regards prevention of torture. In December 2000, the death penalty was declared by the Constitutional Court to be in breach of the Constitution, and was replaced by life imprisonment. Torture is defined as a separate crime in the new Criminal Code of Ukraine. Prison institutions have become more open. Thanks to the principled stands of the Ministry of Defense and the Chief Military Procurator, and greater cooperation with human rights organizations, there have been less serious cases involving “dedovschina” (mistreatment and bullying of conscripts by those with higher rank) in the army. Through the efforts of human rights organizations the problem of torture and inhumane treatment has begun to receive much more attention in the mass media. Bodies of the Ministry of Internal Affairs have become more open.
5. Freedom of speech was increasingly restricted. Control over the mass media, especially forms of electronic media, became more and more blatant and strict. Independent information and analytic programs virtually disappeared. The ability of journalists to freely express an opinion was directly dependent on the political views, interests and possibilities of the owner of the channel, and of the financial-political group which backed it. In each form of the media there were (and are) permitted subjects for criticism and areas not to be touched. Since all financial-political groups were dependent on the President, the latter had to be immune from criticism. This unwritten rule was broken during periods of heightened political conflict between the President and parliament, between the President and the opposition (publications controlled by Pavel Lazarenko, Yevhen Marchuk, Oleksandr Moroz) during parliamentary and presidential elections. However it became very difficult to express an overtly opposing viewpoint; the state executive bodies gradually developed a huge arsenal of means for forcing those in opposition to be silent. With time this became richer and more varied: the closure of means of mass media (using an administrative order in the case of the newspaper “Pravda Ukrainy”, removal of license, reallocation of radio frequencies); making rules for registration more complication, endless checks from various monitoring bodies — KRY (whose checks were, in general, unlawful in relation to non-governmental organizations), from the tax authorities, fire services, etc (moreover the objects of such checks were not only the mass media, but also those business structures which provided them with funding), blocking accounts in banks, printing companies refusing to print issues and even withdrawing printed issues, refusal to allow publications centralized distribution, intimidation and even beatings of journalists. After the parliamentary elections of 1998, the Security Service began to be used against opposition publications.
One powerful and widespread instrument of pressure was the use of court suits brought by state officials defending their honor and dignity with absurdly large amounts of compensation for moral damages. Unfortunately, the courts recognized these claims more and more often, which sometimes led to a newspaper going bankrupt. Thus the newspaper “Vseykrainskie vedomosti” ceased issue after satisfaction of an absurd suit to defend honor and dignity with a massive 3.5 million hryv. awarded as compensation for moral damages. In order to silence critics, as well as civil suits to defend honor and dignity criminal prosecution for slander or libel was also applied. According to statistics of the Ministry of Justice, from 1998 to 2000, and in the first 6 months of 2001, 372 people were convicted of slander, 8 of whom received a prison sentence.
From 2000 to 2001 the scope for freedom of speech and the press broadened somewhat. The opening in the year 2000 of a substantial (for Ukraine) number of new sites, such as korrespondent. net, FORUM, «Ukrainskaya pravda» and others to a large extent gave new life to Ukraines information expanse. Network publications attracted a large number of experienced journalists away from the printed forms of mass media. A lot of the methods of control developed by those in power did not work here. Moreover, journalists immediately used the cassette scandal, broadened the range of topics considered and made their coverage much more biting. However, it would not, in our view, be possible to speak of a significant expansion in freedom of speech. There remains, as previously, virtually no independent journalism in the country, with journalists still forced in the same way to remain within the boundaries imposed by the owners of that particular form of the mass media. Among successes (achieved largely thanks to the efforts of human rights organization), it is worth mentioning the removal of slander and insult from the new Criminal Code, and the passing by the Plenary of the Supreme Court of Ukraine on 25 May 2001 of a progressive resolution “On court practice in cases involving compensation for moral (not material) damages”, in which the Supreme Court strongly recommends that the courts apply the European Convention for the protection of human rights and fundamental freedoms. Between 2000 and 2004 there were a large number of precedents Article 10 of the Convention was applied by courts in law suits against the mass media, where a rejection of the case was argued from the position of the European court of human rights. On the whole, one can state that suits against journalists to defend honor and dignity are now much more often decided in the latters favor, as long as the journalist acted conscientiously. Thus, for example, all known suits brought against journalists to defend honor and dignity by generals of the Ministry of Internal Affairs were rejected.
In the middle of 2002 a new attack on freedom of the mass media, in particular electronic forms, began, where the use of ‘shadows made all news programs similar and uninteresting. The printed mass media also became less interesting. The desire of those in power to also bring the Internet under their control is obvious, however the Ukrainian Internet community has thus far thwarted such plans.
6. The practice of classifying as secret and limiting access to official information has become wider, with the justification given that this is defending the information security of the state (with this concept not defined by any law). Progressive laws, regulating access to information, have been effectively nullified by subordinate legislative acts and unlawful practice epitomized by the widespread use of illegal stamps restricting access to information. In particular, there are stamps with “Not for publication” (used by the President), “For official use” and “Not to be printed” (used by the Cabinet of Ministers and other departments). From our observations, the number of documents with these stamps rose sharply during the period of election campaigns and the referendum. The number of documents with the stamp “Not to be printed” reached 10% of the general number of documents. It is hard not to notice that that it is the very President of Ukraine who classifies a much larger number of documents than the Cabinet of Ministers or any other department. These stamps of secrecy are not defined by any law, and the regulations for working with documents which have this stamp are either not defined by any legislative norm whatsoever, or, as in the case with DSK, effectively block access to documents with that stamp.
The range of information which can be classified a state secret has also broadened significantly. A “Code of types of information which are a state secret” was first published (in 1995), but then classified as secret. All of the above are flagrant violations of Ukrainian, as well as international, legislation. As for open information, departments are extremely reluctant to make this available. The response to formal requests for information is frequently a formulaic letter giving no answer, or there is often no response whatsoever. From 2000 to 2004 the situation with access to information about the activity of state executive bodiesbecame a little better. In 2000 all bodies of executive power opened their own web-sites, and access also appeared to drafts of laws. Following persistent demands from human rights organisations, the Security Service of Ukraine in March 2001 declassified the “Code of types of information which are a state secret”. On the whole, access to information held by state bodies remains a serious problem. The amendments of 11 May 2004 to laws on information and on printed forms of the mass media significantly narrowed the scope of the rights to information and freedom of the mass media: one is now only allowed to work with information which is open according to the legal regulations for access. What is more, administrative liability is now foreseen if a journalist makes information for official use only public. What exactly information classified with the stamp DSK is still not known. This effectively means the introduction of censorship.
7. The abolition of registration led to a new task of creating a register of individuals. The main decisions of the State, passed in this field, have, unfortunately as their aim the creation of an effective mechanism for spying on the private lives of Ukrainians. Long discussion as to which state body should be responsible for this register — MIA or the Ministry of Justice, or a separately created special body, and what the register should be and how to ensure protection of the personal data, ended unexpectedly on 30 April 2004 with a Decree of the President. The Decree states that the MIA shall be responsible for the register which will be on the basis of the Single state automated passport system, which began in 1996, and the process of bringing the Single register of individuals into force should be accelerated. There was no adequate response from the opposition to this Decree which effectively violates the Constitution and discards a number of existing draft laws. This solution to the problem of registration of individuals means in effect the use of a singe multi-purpose individual identification number, which will make it possible to unite all data bases where information about the individual is contained. One can expect heightened conflict in this area connected with the mass refusal of Orthodox Christians to accept such an identification number. In general, if these plans are successful, they will mean that Ukraine becomes a police state.
It should be mentioned that some of the human rights violations listed above are incompatible with the level of freedom characteristic of a post-totalitarian society, and have therefore been the subject of particular attention from human rights organizations. The point is that many human rights violations are characteristic for countries during the transitional stage from totalitarianism to democracy, although they appear to differing degrees: police brutality, lack of openness of those in power, infringements of electoral rights, manipulation of public consciousness through the mass media, poverty of the elderly, etc. There are, however, non-typical violations, and these are serious and dangerous, in that they reflect the assault of those in power on the freedom of the people and threaten to restore totalitarianism. Such violations include political repression; combined with violence and / or accusations of criminal behavior; disappearances; the use of enforcement bodies, in particular, the police or security services for political purposes; the imprisonment of journalists for carrying out their professional duties; poverty of people who are not unemployed; violations of minority rights, also with violence, etc. Unfortunately, only the last violation listed was not observed during the period under review in Ukraine (aside from a few cases involving violence towards Romany Gypsies). As far as the rights of minorities are concerned, the situation on the whole has been relatively favorable, as also with some other rights and freedoms – freedom of thought, conscience and religion, freedom of association, freedom of movement, the right to respect for family life, to equality of men and women. Furthermore, one can, perhaps, state that the rights of minorities are better observed here than in other post-totalitarian countries.
It is impossible not to notice that a policy of double standards continued to exist in the attitude to human rights. Yet, nonetheless the presence of international obligations in the field of human rights has stimulated changes in legislation and created a space for mutual cooperation between human rights organizations and the State. The participation of the latter in commenting on periodic reports about observance of UN Conventions (Ukraine is a signatory to 16 of the 25 conventions of the UN on human rights) has had a significant effect on drawing public attention to the issues being considered there. Since November 1995, Ukraine has been a member of the Council of Europe, and has since become a party to a number of European conventions on human rights. Ukrainians now have the right to make appeals to the European Court of Human Rights in cases of violations of their civil and political rights, and have begun to use these new opportunities. The number of appeals to the European Court has steadily increased, as has the qualities of the appeals put forward, the result of which have been 78 decisions declared admissible, with 23 judgments on claims brought by individuals against Ukraine (as of 1 August 2004). This could significantly influence the process of changes to the legal system.
In our country the Ukrainian Constitution is considered to be one of the best in Europe. In our view, it is difficult to agree with this point of view. Ukraine is not yet ready for organic constitutionalism, and the second section of the constitution, devoted to rights and freedoms shows this clearly. Yes, the formulations of rights and freedoms are taken almost verbatim from the UN Conventions on human rights of 1966 and the European Convention on human rights and fundamental freedoms. However, in our opinion, the inclusion into the Constitution of social and economic rights, as well as other empty social guarantees, was a mistake of the authors of the Constitution. These rights cannot be fulfilled by the State and cannot be norms with legal force. Another fault is that the Constitution also contains a large number of limitations to civil and political rights. The years which have followed since it was passed have clearly shown that such limitations, as “the morals of the population”, “defense of reputation”, “in the interests of public order” are determined not by law, but by those actually in power. This is the typical presumption of a paternalistic state: state officials understand between then citizens what is moral, and what immoral, what is for the good of society and what is not. General and special limitations introduced as supplements to the proclaimed law can render meaningless virtually all these rights and freedoms. Therefore the legal force of these constitutional norms is highly dubious. Moreover, the Constitution does not allow for appeals to the Constitutional Court of normal courts, not to mention appeals from individual citizens. Citizens may appeal to the Constitutional Court only with requests concerning the interpretation of constitutional norms, and only in cases where there are discrepancies between the application of these norms by different administrative bodies. Of the thousands of appeals from individual citizens regarding the interpretation of constitutional norms, the Constitutional Court only considered a few. In other words, the constitutional system for defending human rights did not, in effect, work, and the Constitutional Court was merely an arbiter between different branches of state power. It is true that at first it seemed a much better arbiter than could have been expected, since it tried to be independent, despite pressure from the executive, however later its decisions were more disappointing.
In 2004 all of the above mentioned trends as far as human rights violations were concerned became even more pronounced, and became fully evident during the election campaign. This took place as a confrontation between the forces in power and the people, who found the strength and courage to stand up to those in power. Factors contributing to this victory were the appearance on the active public area of two generations who had not been crushed, crippled by an inferiority complex, and who had a modern world view, the growth of small and middle-scale business, the openness of the country, the numerous visits abroad of Ukrainian citizens, a developing public consciousness and readiness for changes, the growing strength of a civil society and, in particular, of the defense of rights. The youth movements of 2004 were unconsciously (and for a certain number – consciously) human rights activists. They were, if one could put it that way, human rights activists on the offensive, as can be seen even at a semantic level in their banner: “You cant stop freedom!” As Vaclav Havel said, the presidential elections in Ukraine were the funeral toll for the remnants of Ukrainian post-communism. A bell which rang on the capitals Independence Square – as though by itself. And once again the old truth was confirmed: a political regime, which violates human rights more and more flagrantly, sooner or later is doomed.