war crimes in Ukraine

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Thirst for freedom

16.01.2007    source:
Yevhen Zakharov
We are able these days to quite legally defend our freedom from the encroachments of the State. We can even take a state authority to court and win. Yet the State to a large degree remains just as anti-people and indifferent as before

12 January marks a bitter anniversary – 35 years since the beginning of the second wave of KGB operations against the Ukrainian intelligentsia (the first was in 1965).  The repressive actions were preceded by a decision from the highest Party bodies to destroy free speech and free thinking in the USSR.  On 28 June 1971 the Central Committee of the CPSU (Communist Party of the Soviet Union) passed a secret resolution “On measures to counter the illegal dissemination of anti-Soviet and other politically harmful material” which within a month had been duplicated by the Central Committee of the CPU ((Communist Party of Ukraine) having added “of local material”  On 30 December of the same year the Politburo of the Central Committee ruled to begin an all-Union campaign against samizdat in order to destroy the infrastructure for its preparation and circulation. 

For the Ukrainian movement a separate “detective story” with “spying passions” was played out.  On 4 January 1972 Yaroslav Dobosh, a young Belgian national of Ukrainian origin and member of the Union of Ukrainian Youth was arrested.  A highly “compromising” document was confiscated - a copy of the “Dictionary of rhymes of the Ukrainian language” written by political prisoner Sviatoslav Karavansky. As it became clear later, Dobosh was forced to repeat a story about having been a contact between émigré anti-Soviet centres and their “agent units” in Ukraine. This was used as the justification for the arrests. In Kyiv on 12 January the arrests were made of Zinoviy Antonyuk,  Mykola Plakhotnyuk, Vasyl Stus,  Yevhen Sverstyuk, Ivan Svitlychny, Zinoviy Franko and others. A little later, on 15 January Leonid Plyushch was arrested in Kyiv and Viacheslav Chornovil, Ivan Hel, Iryna Kalynets, and Stefaniya Shabatura in Lviv. In all around 20 dissidents were arrested in January and over the next year and a half more than one hundred people in Ukraine.

The atmosphere in society was oppressive. Any who refused to testify against those arrested or showed the slightest sympathy for them were subjected to administrative repression, dismissed from their jobs or expelled from their institutes. They lost any chance of career advancement or opportunity to have their works published, to hold exhibitions, etc).  Thousands of searches were carried out and tens of thousands of people were terrorized through being interrogated as witnesses.

Almost all the leading Shestydesyatnyky [Sixties activists] received the maximum sentence (7 years harsh regime labour camp and 5 years exile). Their “crime” consisted of wishing to freely express their thoughts in their native – Ukrainian – language. This wish was labelled nationalism and made punishable. If the renaissance of the 1920s is justly referred to as the “Executed Renaissance” [“rozstrilyane vidrodzhennya”], so the renaissance of the 1960s could be termed “stifled”

From 1975 the Day of the Ukrainian Political Prisoner, at the suggestion of Viacheslav CHORNOVIL, was observed in the political labour camps and prisons, and by people serving periods of exile, on 12 January. On that day political prisoners issued political statements of protest against repression and announced one-day hunger strikes.  On 11 January 1981 Serhiy Naboka, Larisa Lokhvytska, Iryna Chernyavska, Leonid Milyavsky and Natalka Parkhomenko pasted up around Kyiv several copies of a leaflet reading: “Fellow citizens! 12 January is the Day of the Ukrainian Political Prisoner. Support them!” They were all arrested and the first four paid for their “crime” with three years imprisonment.

“The criminal acts” which were once harshly punished are now no longer considered such. We have, albeit limited, nonetheless the freedom to gather, worship, express our views, print what we want to (given only that we have the money to do so), etc.  We are able these days to quite legally defend our freedom from the encroachments of the State. We can even take a state authority to court and win.

Yet the State to a large degree remains just as anti-people and indifferent as before. This is demonstrated for example in the attitude to the socially vulnerable – the disabled, pensioners, large or single-parent families. It is enough to look at the 2007 Budget. Criminal law policy remains harsh, judicial reform is being stalled and the law enforcement agencies, as previously, want to control and watch over absolutely everything. 

In a word, we see clear confirmation of the old adage that the State treats people the way they allow themselves to be treated. So the only solution is to stop being meek lambs for the slaughter, to know our rights and to stand up for our freedom.

Whereas in Soviet Ukraine it was impossible to even think of creating a human rights organization, now a human rights community has virtually from scratch developed which is successfully upholding human rights. I could fill many pages with stories about the successes achieved by my colleagues.

The strong sense that human rights in Ukraine are not fully protected is explained by the fact that these successes, substantial as they may be, are lost in the huge mass of human rights violations, and are therefore simply not noticed. There is no other option but to grow, learn, become stronger in numbers and in quality, to have impact on the State and its agents, to accustom both the state and society to the idea that human rights are not to be violated.

A major role in this can and should be played by the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine (the Human Rights Ombudsperson), i.e. the highest independent public official whose work should be directed at affirming and protecting human rights and fundamental freedoms, as well as at public control over how these are fulfilled by state authorities, bodies of local self-government, their officials and functionaries. This post is extremely important for civic society and for nongovernmental human rights organizations and therefore the latter are so active in lobbying for a candidate from civic society.

Eight years have passed since the creation in Ukraine of the office of Human Rights Ombudsperson, and through all of that period the post has been held by Nina Ivanivna Karpachova. We should acknowledge what she achieved during the period when the office of Human Rights Ombudsperson was still becoming established. Bearing in mind the difficult conditions in which Ms Karpachova had to carry out her functions one can speak of her considerable contribution to the cause of human rights protection in Ukraine.

However time does not stand still and today reform is needed of the office of Human Rights Ombudsperson with systematic changes needed in human rights protection. The Human Rights Ombudsperson should be a representative of civic society – a person who is effective, tolerant, independent of any party influence and not connected with any political force and a person with considerable experience of human rights work.

Politics and human rights protection are incompatible: politicians seek power for their political force, whereas human rights defenders are concerned solely for the rule of law.

One of the main resources for improving the efficiency of the office of Human Rights Ombudsperson is its cooperation with human rights organizations (HRO).  If one compares the functions and the mandate of the Human Rights Ombudsperson and HRO and considers the work they do, it is entirely possible to consider the Ombudsperson and his/her structure as just such an HRO, only acting on behalf of the state, and to view their activities from this position

Powers need to be delegated at a regional level and regional representative offices of the Ombudsperson created. The Human Rights Ombudsperson should appoint representatives in 24 regions, Kyiv and Sevastopol, and the Crimea, with these people living in the given area, having experience of human rights activity and high standing in society. They need to work on a permanent basis, cooperating with human rights organizations, assessing the situation with regard to observance of rights and freedoms in that area, uncovering violations of human rights and freedoms, and informing the Ombudsperson about them, and in specific cases submitting complaints to the Ombudsperson about such violations

Development is also needed of the positions of specialized Ombudspersons. In Ukraine there should be three such Ombudspersons responsible for the rights of the child, the rights of minorities, and for access to information and personal data protection. They would head the relevant departments in the Secretariat of the Human Rights Ombudsperson, and would be delegated powers by the latter, with procedural independence being ensured for the three posts.

Since the Human Rights Ombudsperson receives a huge number of complaints which his / her office is simply not able to analyze and consider in good time and comprehensively, HRO could act as a kind of filter which could identify from the vast numbers of complaints those that really do deal with violations of human rights and which the Ombudsperson should consider in accordance with his/her mandate.

The Human Rights Ombudsperson and his/her representatives would also be able to review appeals regarding violations of rights in specific cases directly from the HRO.

In order to work efficiency with complaints sent to the Human Rights Ombudsperson, an electronic database must be created. The development of an internal network within the structure would make it possible within the space of a few minutes to obtain information from any computer in the network about the content and stage of review of any complaint. In order to improve the efficiency of human rights defence it would be a good idea to create a special fund (financed by nongovernmental sponsors) to pay for the work of lawyers in strategic cases.  The system of communication with the public also needs improvement which could be achieved by daily updates of the website of the Human Rights Ombudsperson, with an English language version, regular publication of a bulletin describing and analyzing violations of human rights violations, and fundamental freedoms, as well as giving accounts of successful precedents in defending human rights. There could also be television programs on Ukrainian Television Channel 1 with direct contact between the Human Rights Ombudsperson and the viewers.

The Human Rights Ombudsperson and HRO could combine efforts on raising the level of knowledge of the authorities and society about human rights and on providing human rights education and awareness raising. They could jointly produce a series of educational leaflets “Your rights”, approved by specialists and endorsed by the Human Rights Ombudsperson, which would include provisions in legislation on human rights in the situations of conflict which are most often encountered. There could be leaflets on, for example: “Your rights during detention and arrest”; “Your right to defend your name and reputation”; “Your right to assistance on the birth of your child”; “Your right to a housing subsidy”; “Your right to land”; “Your rights if they cut off your power, heating, water or gas”, and so forth. These leaflets, endorsed by the Human Rights Ombudsperson, could then be printed in large numbers and distributed among the public at various public events, in educational institutions, enterprises and organizations.

It would be sensible to prepare, publish and distribute not only printed matter, but also audio, photographic and video materials on human rights.

It is vital to inform professional groups on international mechanisms for protecting human rights. This include, for example, helping judges, lawyers, law enforcement officers to become familiar with European legal principles, norms and standards, in particular by using the European Court of Human Rights, standards of the European Committee against Torture and Ill-treatment, Directives of the European Union and others. Joint preparation by the Human Rights Ombudsperson and HRO of translations of digests of judgments of the European Court of Human Rights, the publication and distribution of the corresponding anthologies would be extremely beneficial in changing legal paradigms in the profession milieu.

No less important is developing human rights awareness among children and young people, as well as monitoring educational curricula and textbooks for secondary schools and higher education pertaining to human rights. Various activities could be run under the aegis of the Human Rights Ombudsperson such as competitions and special events to mark Human Rights Day, International Children’s Day, etc.  Such public campaigns and actions would help raise awareness of human rights among the public.

It would make sense to create working groups from experienced representatives of HRO, together with representatives of the corresponding departments of the office of the Human Rights Ombudsperson to carry out regular monitoring of certain rights. These working groups would follow all changes in legislation and practice, and would be able to initiate amendments to legislation and other normative acts and influence practice. The annual analytical reports on the outcome of the monitoring could become an integral part of the Ombudsperson’s annual reports.  

An important task of the Ombudsperson is to create, in cooperation with HRO, national preventive mechanisms against torture in order to implement the Optional Protocol to the UN Convention against Torture (OPCAT). In my opinion, there need to be particular mechanisms for the Ministry of Internal Affairs, the State Department for the Execution of Punishments, the Armed Forces and other state bodies which are in charge of places of deprivation of liberty. In order to ensure openness and transparency of the Ombudsperson’s activities, reports should be made public about staffing, expenditure, as well as annual reports about the work of both the Ombudsperson and the Secretariat, and so forth.

Changes are needed to the law on the Human Rights Ombudsperson. It would be desirable to increase the role of the Human Rights Ombudsperson and the significance of his/her decisions.  It would therefore be advisable in the new version to add the following rights:

  • to initiate amendments to legislation in the interests of safeguarding human rights and fundamental freedoms;
  • to approach legally established institutions asking for a check to be carried out of court rulings, after they have entered into force
  • to issue formal warnings to public officials responsible for human rights infringements;
  • to call for the abolition of acts which allow for human rights abuses, including by turning to the courts him- or herself;
  • to approach the bodies which public officials responsible for human rights infringements are subordinate to with a call to bring proceedings against them under current labour legislation, and call for the dismissal of individuals who have repeatedly or flagrantly violated human rights and fundamental freedoms.
  • to call for the state authorities or bodies of local self-government to dismiss individuals who have repeatedly or flagrantly violated human rights and fundamental freedoms;
  • to inform the public via the mass media about violations of human rights by public officials, or cases where public officials have not responded appropriately to appeals from the Human Rights Ombudsperson.

The activities of the Ombudsperson also need to be guaranteed, through legislating the obligation of state authorities or bodies of local self-government, and their officials, to review within a month recommendations put forward by the Ombudsperson and to provide a response in writing as to measures taking to reinstate the violated rights or providing reasons why the recommendations have not been heeded.  Secondly, by allowing for administrative (and, where necessary, criminal) liability of public officials for deliberately or repeating (systematically) ignoring formal requests from the Human Rights Ombudsperson to be given material, documents, information or explanations.  There should also be a limit on the same person holding office for more than two terms in succession.

To conclude: I recently watched a marvellous documentary by Mykhailo Tkachuk “The mystery of the Norilsk Uprising”. The overwhelming majority of participants in this uprising were Ukrainians. The film demonstrates very vividly the “virus of rebellion”, the thirst for freedom, the will to freely determine their own fate, all of which were so strong in Ukrainians. This was what inspired the Shestydesyatnyky, it was this, at the end of the day, which brought people onto Maidan [squares throughout Ukraine] in November – December 2004. I am strongly aware of the profound link of modern human rights defence with that very yearning for freedom – “our age-old sin, and our age-old pride”. And I am glad that my friends and colleagues consider ours the old European rallying cry: “For your freedom and ours!”

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