General overview of violations of human rights and fundamental freedoms
Our report concerns the human rights situation in Ukraine in 2008. It would be difficult to give a simple description of the varied tapestry which the human rights situation presented during this period.
There was, on the one hand, a political crisis, which prevented necessary reforms – constitutional, judicial, administrative, reform of the criminal justice system, etc. The struggle of political opponents for power led to the politicization of any issue where each step of the authorities, new draft law or appointment to a post, was assessed purely from the point of view of gaining advantage in the political battle. This battle had an extremely adverse effect on the level to which the State apparatus was governable, and led to an increase in unlawful acts by the local authorities which paid virtually no heed to the recommendations of the central authorities.
On top of the political crisis the second half of 2008 brought a full-scale economic crisis which the government had difficulty coping with, especially due to the loss of control and impossibility of swiftly drawing up and adopting decisions. The economic crisis hit the poorest layers of society hardest, as well as the middle class. Those on low incomes found it even harder to survive because of the rise in prices and inflation, the increase in tariffs on communal services and the lack of adequate social protection. They became even more dependent on their employers, the relations with whom are often feudal-like. Unemployment, including concealed, rose considerably, and to a large extent also affected qualified workers and office workers. The fall in GNP was the worst in Europe, and the already great divide between the standards of living of rich and poor widened still further.
In these conditions the situation with social and economic rights in general could only deteriorate, especially given that safeguarding and defending human rights was not a priority for those in power. As in 2007, the government again suspended the fulfilment of economic and social rights in the Budget for 2008 despite the judgment of the Constitutional Court prohibiting the suspension in implementing these rights via the annual law on the Budget. That is, the government is demonstratively choosing not to enforce the judgment of the Constitutional Court on the protection of socio-economic rights.
On the other hand the presence of political competition and a certain degree of freedom of speech positively affect the level of self-awareness of society which is becoming more mature and able to think clearly. An idiosyncrasy of Ukrainian society with regard to authoritarian rule continues to be its political pluralism which is a good way of preventing the victory of one authoritarian political force over others. Society is looking for new ways of overcoming the crisis, including for protecting human rights.
Human rights organizations have become stronger and have forced the authorities to take their assessments and proposals into account. They have in some issues achievement certain changes for the better. One can cite dozens of examples of successful action by human rights groups in 2008 however these successes drown in a huge sea of human rights violations.
As a result, there remains a general assessment by the population of their position as being unprotected. Human rights organizations have gained sufficient capacity to force the State to bear their position in mind, but far from enough to change the overall attitude of the State to the issue of human rights in order to teach them to respect these rights.
Nonetheless it was in 2008 that a new phase began in cooperation between human rights organizations and the State with the creation, jointly with the State, of national institutions which encourage and defend human rights, and cooperation with them. This involved the creation and activities of the Department for Monitoring Human Rights Adherence in the Work of the Ministry of Internal Affairs (DMHRA). The formation of this Department, defining of its mandate and main areas of work, discussion of human rights issues within MIA, all took place in friendly cooperation between the management of the new Department and human rights organizations. Its successes are unquestioned and assure certain progress within the MIA on safeguarding human rights. Of course this cannot fundamentally resolve the human rights problems within the MIA which are the most difficult in the human rights sphere – arbitrary detentions and arrests, unlawful violence in order to extract confessions, including torture, etc. Here changes are needed at the mentality level with decades required to achieve this, as well as systematic reform of the criminal justice system. However the work of the new Department has already been instrumental in identifying those violations, making information about them known, protecting the victims of violations, and studying the conditions which foster such violations. The newly created Department for Monitoring Human Rights Adherence, public councils on human rights, and mobile groups for monitoring observance of rights and liberties have created a new single system of departmental and public control over the observance of rights in the work of police stations. The information policy of the new institution has also been successful, with the creation of its own site http://umdpl.info, which is updated on a daily basis, with information about the current work of the Department and human rights issues in the MIA which have been encountered. In less than a year the new Department has succeeded in producing a detailed annual report on the human rights situation in the work of the MIA.[1].
We would note that in comparison with the new State human rights institution, the analytical and information activities of another national human rights institution which has been functioning for 10 years already – the Human Rights Ombudsperson – leaves a great deal to be desired. It has been four years since there was a report on the human rights situation in Ukraine although according to the law the Ombudsperson should present an annual report. Over the entire 10 years there have only been three annual reports and some special reports. The Ombudsperson’s website is updated on average once or twice a week and does not give sufficient information about the work of the Ombudsperson who thanks to her persistence has had certain success in specific cases involving human rights violations.
The experience of the new Department with the MIA is stimulating the creation of analogous monitoring human rights institutions in other State bodies. The creation of new national State institutions protecting and encouraging human rights is promoted also by a phenomenon which has been observed over the last 5-7 years: civil servants have begun appearing with human rights protection thinking, and their numbers are ever increasing. Typical features of such people are a worldview formulated in the perestroika period or after Ukraine gained independence, the lack of experience of adult life in the Soviet environment, a liking for the Internet and knowledge of one or two foreign languages, contact with human rights through their type of work. One can meet such people in the Ministry of Justice, among assistances to National Deputies [MPs], among lecturers in MIA educational institutions, etc.
Among political processes in 2008 which concerned human rights, one should note the efforts of some State bodies, and in the first instance, the President to establish historic truth about the liberation struggle in the 1940s, political repression under the communist regime, the declassifying and publication of archival documents on political repression, and an improvement in access to the Security Service [SBU] archives.
Unfortunately, the overview of positive trends in the human rights sphere can be ended on that, with the other trends being entirely negative. One should first and foremost mention the increasing lack of respect by political forces to the justice system and the principles of the rule of law; efforts to use the courts for political advantage, and unlawful actions with regard to the courts in cases when rulings passed have run counter to political interests. What kind of court reform, what kind of judicial independence can one expect in such circumstances? While there continues to be such an attitude by politicians to the court, one cannot speak of real protection by the State of human rights. In the absence of a strong and independent judiciary, protection of human rights remains unreal. It is not surprising that for several years now parliament has not passed laws aimed at implementing the Concept Strategy for improving court proceedings for the affirmation of fair trial. More detail about this can be found in the unit on the right to a fair trial.
There remains a great problem with enforcement of court rulings: each year over 70% of rulings in civil cases are not enforced. More than 80% of the judgment s handed down each year by the European Court of Human Rights concern violations of Article 6 § 1 of the European Convention specifically over non-enforcement of court rulings, including on rulings regarding wages arrears or other payments by State or other enterprises and institutions. Nor in five years has the State done anything to change the procedure to pay debts and give people the money they have earned.
In 2008 the National Expert Commission for the Protection of Public Morality expanded and increased its activities. In our view its decisions were unwarranted and disproportionate intrusion in freedom of expression, and such intrusions did not serve any urgent public need. In general the existence of a separate special body on the protection of public morality is dubious in a democratic society. Serious changes are required to legislation on the protection of public morality in order to achieve clear and foreseeable regulation.
There were also attempts by political opponents to use the law enforcement agencies as instruments in political struggle. This is demonstrated, for example, in the all-round conviction of higher officials that their communications are being monitored – statements to this effect were made on many occasions, though no single case was investigated. This is indirectly confirmed by a significant increase, of more than 1.5 times over 2005 in the number of warrants to intercept communications issued by appellate courts. There were 15 thousand in 2005 and more than 25 thousand in 2008. These figures significantly exceed analogous figures in European countries where more than one thousand orders are issued per year just in France and the Netherlands. A third of the warrants in 2008 were received by investigative units of the SBU. Such an increase in surveillance by enforcement structures over members of the public cannot fail to arouse concern, especially given that guarantees of the right to privacy remain very weak, with no progress in this sphere having been made. On the contrary there is ever more circulation in practice of the identification tax number as a universal identification code which, in violation of the law, is used in all operations. There are constant attempts to introduce biometric data to the new passports both for travel abroad, and the internal document, as well as other unlawful actions flagrantly violating the right to privacy.
The situation in the State Department for the Execution of Sentences which is assiduously holding on to its closed nature and impunity remains stably bad. This is the single State body in Ukraine which has virtually not changed over the years of independence and remains unreformed and a total anachronism.
Other law enforcement agencies also require reform, especially the prosecutor’s office, which has powers which lead to a conflict of interests and which carries out general overseeing which is not in keeping with its function.
The National Commission for the Strengthening of Democracy and the Rule of Law has drawn up a progressive Concept Strategy for reform of the criminal justice system[2], which is a good basis for reform. However the State is in no hurry to reform the law enforcement agencies. Even the tabling in parliament of a draft Criminal Procedure Code which could promote significant improvements in the work of the law enforcement agencies, keeps being deferred, although consensus among lawyers regarding the draft Code has long been achieved.
Flagrant violations of property rights, continued in 2008, these including unlawful seizures of land or other property in spite of the law, the wishes and decisions of local territorial communities or owners. Where the heads of settlement councils resisted unlawful seizures of land, criminal investigations were trumped up against them, as for example the case of Volodymyr Marunyak and other village heads in the Kherson region.
Violations continued of political rights. The Constitutional changes of December 2004 set in motion a real crisis of passive electoral law. Article 38 of the Constitution states that: «citizens have the right to participate in the administration of state affairs, in All-Ukrainian and local referendums, to freely elect and to be elected to bodies of state power and bodies of local self-government». However the Law on parliamentary elections does not allow for free access of citizens to passive electoral law. According to Vsevolod Rechytsky, «It is paradoxical, but in Ukraine we have a situation where one can stand for the office of President by paying a bond and putting oneself forward, yet one can only become a candidate for deputy of a district country by being included on a party list[3]. And when political parties include in their candidate lists only their own members, this is a flagrant violation of the Constitution, infringing the right to be elected. This means the introduction of imperative mandate through the back door. It would seem that Soviet, «democratic» centralism remains the ideal for Ukraine’s political elite. With the existing electoral system there is no place for independent individuals who wish to take part In politics, but don’t want to attach themselves to a particular party (each of which in some strange way being reminiscent of the Soviet Communist Party). Their intellect and organizational skills are not made use of, which further deepens the degradation of the political elite. This was vividly demonstrated by the local elections in Ternopil and victory of the rightwing radical force VO «Svoboda» which had never won before even in the West of the country (where the supposedly nationalist stand of the party is more likely to be popular – translator).
In conclusion, we are forced, as in previous reports, to conclude that there is no systematic policy at all on improving observance of rights and freedoms in the country. The efforts of human rights organizations, of particular departments and civil servants within the MIA and Ministry of Justice, the National Commission for the Strengthening of Democracy and the Rule of Law to improve the situation have resulted in some progress, however the political crisis, the general attitude of political forces to human rights as to something of lesser importance and insignificant when set against political expediency, prevent systemic improvements to the situation. There remains year in, year out the pressing need to achieve, via the adoption of prepared and already approved Concept Strategies for the criminal justice system, judicial reform and free legal aid, as well as draft new versions of laws on Public Broadcasting, on information, on access to public information and on civic organizations.
[1] Human Rights in the activities of the Ukrainian Police, Kyiv – Kharkiv, Prava Ludyny, 2009.
[2] Approved by Presidential Decree № 311/2008 from 8 April 2008 “On the decision of the National Security and Defence Council of Ukraine from 15 February 2008 “On the progress of reforming the system of criminal justice and the law enforcement agencies”
[3] Vsevolod Rechytsky. Ten Postulates regarding the Ukrainian electoral system http://khpg.org/en/1179324516