Human Rights in Ukraine
It is no easy task to present the human rights situation in independent Ukraine within one article. It would be most natural to review legislation, court and administrative practice concerning fundamental rights and liberties. However wishing to describe at least elements of the development of the relations between the young state and an emerging civil society, and try to identify reasons for Ukraine’s lagging behind in the post-Soviet area, I have chosen a different approach. I offer the reader a retrospective overview of the last 20 years, divided into 4 periods: the period of hope and revival in society, culminating in the collapse of the USSR; the years of disorientation, inevitable velvet restoration and becoming accustomed to major changes; the 10-year period under Leonid Kuchma – harsh offensive from the State on the individual, the dividing up of property, the strengthening of power of oligarch clans and ever more corruption. At the same time there was a strengthening of the opposition, increasingly visible and substantive resistance within society to the authoritarian regime, disillusionment within society, crisis, increasing human rights abuse, and – new hopes.
1987 – August 1991
Before ‘perestroika’, nobody except dissidents spoke seriously about human rights in the USSR. Although the USSR was a party to the UN pacts of 1966 and other international human rights treaties 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 essence they were. 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 those who defended their national rights.
At the same time, by the middle of the 80s, it was quite clear to anybody who gave any thought to 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. ‘Samizdat’ was replaced by an independent press. Public actions, organised at grassroots level emerged – 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 Verkhovna Rada in Ukraine and to Local Soviets in 1990, where representatives of the civic movement were elected in cities, and in Western Ukraine, as well as 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 had been at 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 programs 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.
September 1991 – 1994
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 shared a common aim – the democratisation of public life, and 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 factors contributing to 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 Ukraine’s 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 1932-1933.. 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 and of concern to only the isolated few. 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, to organize monitoring of these branches and to counter systematic violations of human rights. Such structures needed to be created from scratch. During those years the following organizations emerged: Amnesty International groups which later merged into a nationwide association; the Kharkiv and Donetsk Memorial Societies; the Ukrainian-American Human Rights Bureau; the Ukrainian Section of the International Society for Human Rights; the Ukrainian Media Club; the Foundation for the Defence of Freedom of Speech and Information; the Ukrainian Committee for the Protection of Children and other organizations. 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, flagrant 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 nomenclature (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 nomenclature, 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 and those who were rich (one and the same circle in Ukraine) while increasingly indifferent to the fate of all others and aggressive to anybody who expressed dissatisfaction with the system of relations which was developing.
In fact from today’s vantage point that period seems more favourable, and it is not for nothing that those years were dubbed “rose-tinged” democracy. Control by the State over the individual was not yet so strict. As a result of the inertia from perestroika progressive, in many respects, idealistic laws were passed – about freedom of conscience and religious organizations; national minorities, the printed press, about information, State secrets, citizens’ appeals, and others. The process continued of rehabilitation of victims of political repression. You could still watch the First Ukrainian TV Channel, and read State-owned media. They really did try to discuss important issues. For example, discussion of the draft Constitution in 1993 was widely discussed – in the media, special sessions of the local councils, and others, and as a result it was rejected as unsatisfactory. Independent publications still dared to carry out journalist investigations, while attacks on journalists had not become a common occurrence.
With the election of Leonard Kuchma President of Ukraine, the process of personal aggrandizement of the nomenclature, the creation of financial-oligarch clans and increasing poverty of wide layers of the population gained momentum and became more vicious. 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, passed on 28 June 1998, «human rights and freedoms and their guarantees determine the essence and orientation of the activity 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 public control over the actions of the State powers 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 everybody was forced to break the law, and was therefore vulnerable. However the bodies which could impose punishment, worked selectively: they repressed those who supported the opposition financial, or who tried to be independent (Boris Feldman, the head of «Slovyansky» 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 controlling body, and to a certain extent beginning to fulfil 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, this further corrupting the State machine and increasing corruption.
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 UAH, while the average salary was 155.5 UAH a month, and the subsistence minimum was 220 UAH) 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 healthcare, 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 UAH 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 Yevhen Marchuk, Pavel Lazarenko and Valery Pustovoitenko were seen in the 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 enforcement of a court ruling. As a result of a demographic crisis, caused in the first instance by social and economic factors, the population of the country fell 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 UAH (per month), for the second half – 118.3 UAH and for 2001 – 153 UAH After the dismissal of Yushchenko’s 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 UAH per 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 had 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 law enforcement agencies. 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 State executive bodies 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 President’s 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 children’s bags, and would also vote. Students and their lecturers were ordered by the administration of their institutes to bring documents confirming their participation in this 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 succeeded through intimidation, blackmail, and bribes to form the biggest faction in parliament, thus stealing victory from the bloc «Nasha Ukraina» [«Our Ukraine»]. In order to retain power-giving authority, other drafts for reforms to the Constitution were pushed, the implementation of which was also of an imposed nature. 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 Melnichenko’s 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. 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 legal policy became increasingly brutal. Torture and inhumane treatment at detective inquiry [diznannya] and pre-trial investigation stage became an everyday occurrence, most often remaining unpunished or, worse, being seen as normal. This leads to the 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 defenceless, on the other. The level of trust in the police dropped during these years by 5 – 12% (depending on the region). Ukraine 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 sentenced to terms of imprisonment) in 1991 to 222,200 (37%) in 1999. The problem of overcrowding in pre-trial detention centres (SIZO) became more and more serious. At the beginning of 1994 38,9 thousand detainees were being held in SIZO, with official space for 11,300 people, while by the end of the year 2000 this figure stood at 46,2 thousand, although 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 detention period standing at 18 months. Nor was there any success in introducing limitations on the total time limits for remand in custody, time for familiarizing oneself with the case and court procedure. Despite the fact that judges sent approximately each tenth criminal case away for additional investigation, it was not uncommon for people accused of a crime which they did not commit to spend years in SIZO simply because there had been no verdict in their case, and a judge would not dare to either acquit them or change the preventive measure imposed. Incidentally, the number of acquittals during all those years did not exceed 0.35%. The conditions in SIZO were in themselves harsh and inhumane. The acute worsening of the economic situation was reflected also in the financing of SIZO and penal institutions – 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 penal institutions. In 1999, 3081 prisoners died, which almost equalled 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 and able-bodied (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 of the penal system as had been expected. The repressive nature of criminal and legal policy remains at present intact. The number of those convicted of a crime and imprisoned is decreasing only very slowly. The general number of prisoners remains on the level of 190 – 200 thousand. As a result of increased funding of the penal 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.
There were some changes for the better as regards prevention of torture between 2000 and 2004. 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 was now defined as a separate crime in the new Criminal Code of Ukraine. Penal institutions became slightly more open. Thanks to the principled stands of the Ministry of Defence and the Chief Military Prosecutor, and greater cooperation with human rights organizations, there were less serious cases involving «dedovschina» (bullying of conscripts) in the army. Through the efforts of human rights organizations the problem of torture and inhumane treatment began to receive much more attention in the mass media.
5. The disrespect for the judiciary and indeed for the rule of law in general became ever more overt. This was demonstrated by the constant violation of the principles of the rule of law in favour of immediate political expediency, the disregard for the principle of court independence, pressure placed on the courts by the Presidential Administration or the State executive branch of power as a whole, the appalling state of financing for the court system and the efforts to inculcate in society the belief that the judiciary was one of the most corrupt institutions in the land. The President’s team blocked the development of constitutional legislation designed to develop constitutional norms and to establish clear powers for both the executive and legislative branches of power. Such means were used to stall laws on the role of the President, on the Cabinet of Ministers, on temporary special and investigative commissions of the Verkhovna Rada, on its regulations, on pre-trial investigation units, etc. President Kuchma vetoed the Law “On the Cabinet of Ministers of Ukraine” 8 times and the Law “On temporary special and investigative commissions of the Verkhovna Rada” 5 times.
Expenditure on the judiciary did not even meet half the required amount. Thus, for example, under the budgetary code 1139 which until 2004 covered expenses for the services of court lawyers appointed in criminal cases, for the transport and accommodation costs of victims and witnesses during court hearings, as well as the services of experts during a criminal investigation, security guards, insurance, professional services, etc, in 2001 appeal courts received 365,1 thousand UAH (67,5% of the amount set out in the budget), in 2002 – 296,2 thousand UAH (75% of the planned amount), while local courts received 79,9 thousand UAH (this being 3.6 % of the amount set aside) in 2001 and in 2002 – 927,9 thousand UAH (41,7 % of the planned amount). These figures show that access to the courts, guaranteed under Article 59 of the Constitution was in no way a priority for the Ukrainian State. The financing of the courts was absolutely pitiful and there could be no possibility of achieving independence of the judiciary under these circumstances.
The reform of the judicial system was stalled. According to the President of the Supreme Court, Vasyl Malyarenko, at parliamentary hearings held on 16 March 2005, it was moving “slowly and in a chaotic and unsystematic manner with reforms being followed by counter-reforms and attempts to review previous legislative rulings”. Trial by jury was never in fact introduced and administrative and juvenile courts were not created. The periods required for review of court cases were too long and in virtually every case there was an infringement of the principle of court review ‘within a reasonable time’. The recently introduced “small judicial reform”, the abolition of the system of cassation courts and general sluggishness in creating higher courts led to an overload for the Supreme Court, especially as regards panels of judges dealing with civil cases. Thus, as of the beginning of 2004 there were still 20 thousand cases awaiting review by the Supreme Court, and by the end of the year this figure had increased by 10 thousand. One of the most urgent issues needing addressing was the problem of court rulings not being executed, this being a violation of the right to a fair trial.
It should be noted that people had now begun to seek redress through the courts much more often. In 10 years the number of civilian suits increased more than 2.5 times, while the number of complaints about unwarranted actions (or omissions) of State executive bodies and State officials were 50 times higher. The courts were 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 high-ranking state officials in the country. The former President of the Supreme Court, Vitaly Boiko, as well as his deputies, the then President, Vasyl Malyarenko and judges of the Supreme Court spoke frequently of courts being dependent on the executive and of instances involving interference in their activity.
6. Surveillance by law enforcement bodies and the security service over the population became more and more total, this being seen most pronouncedly in the mass violations of the right to privacy of communications. Wire-tapping and tapping of mobile phones, interception of electronic mail and other means of communication took on frightening proportions. Since these investigative operations were not subject to control, it was impossible to assess the real scale of illegal, that is, unsanctioned interception of information from communication channels, this prompting numerous applications from both politicians and journalists. However even the scale of those actions carried out lawfully was staggering. As one of the judges of the Supreme Court publicly stated, in 2002 appeal courts had issued 40 thousand sanctions for the interception of information from channels of communication. This was a huge figure if one compares it with the number of warrants issued in countries with a similar population – France, the United Kingdom, etc, where the figure did not always exceed one thousand. If one assumes that a single warrant can cover the communications of around 100 people, then in 2002 the communication of as many as 4 million Ukrainians may have been monitored. The effectiveness of such operations was on an extremely low level. According to the Law “On Investigative Operations” such measures are possible only in cases involving serious or particularly grave crimes. If one compares the number of warrants issued with the number of those convicted of serious or particularly grave crimes, one can see that in general the efficiency rate of such investigative operations did not exceed 10%.
A system for monitoring communications and activity of Ukrainian citizens on the Internet was actively introduced. Back in February 2001 the Security Service of Ukraine (SBU) acknowledged that it was carrying out monitoring of information which was transmitted or received using systems and means of communication. Order No. 122 of the State Committee for Communications of 17 June 2002 stated that only Internet providers who had installed the State system for monitoring and who had received the relevant certificate would be entitled to serve State executive bodies. Furthermore, these providers were obliged to procure and install this system at their own expense. This Order had no legal basis. Understanding that they would need to legalise their monitoring, the SBU prepared a draft law which was tabled in the Verkhovna Rada as draft law No. 4042 “On the monitoring of telecommunications” in August 2003. The draft effectively legitimized the functioning of the existing system and the technical demands for it. Monitoring was presented in it as a different type of interception of information from channels of communication in accordance with the Law on Investigative Operations. However, with regard to safeguards against abuse this draft law was even worse than the Law on Investigative Operations. Human rights organizations were able to block the passing of this draft law however monitoring was still carried out even without a law.
7. People’s right to protection of their personal data was ever more infringed– this being yet another result of the desire of the State to know as much as they could about its citizens. The abolition of the ‘propiska’ (registration) system led to a new task of creating a register of individuals. The main decisions of the State, passed in this field, were, unfortunately, aimed at creating an effective mechanism for spying on the private lives of Ukrainians. Long discussion as to which state body should be responsible for this register – the Ministry of Internal Affairs (MIA) the Ministry of Justice, or a separately created special body; what the register should be; and how to ensure protection of personal data, ended unexpectedly on 30 April 2004 with a Decree of the President, No. 500. The Decree stated that the MIA would be responsible for the register which would be based on the Single State Automated Passport System [SSAPS] which had been started in 1996, and that the process of bringing the Single register of individuals into force would be accelerated. There was no adequate response from the opposition to this Decree which effectively violated the Constitution and discarded a number of existing draft laws. A law on creating a singe register was thus never adopted. This solution to the problem of registration of individuals meant in effect the use of a singe multi-purpose individual identification number, which would make it possible to unite all data bases where information about the individual was contained. In general, if these plans were successful, they would turn Ukraine into a police state. The law on creating a single register was not passed.
8. Freedom of speech was ever more widely infringed. Control over the mass media, especially forms of electronic media, became more and more tight and unashamedly blatant. Independent information and analytical 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 media outlet there were 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 held 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 Pavlo 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 media outlets (using an administrative order in the case of the newspaper ‘Pravda Ukrainy’ [‘Ukrainian Truth’], removal of license, reallocation of radio frequencies); making rules for registration more complication, endless checks from various monitoring bodies – the Control & Audit Department (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), freezing accounts in banks, printing companies refusing to print issues and even withdrawing printed issues, refusal by the centralized press distribution service to distribute publications, 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 defamation suits brought by state officials in defence of their honour and dignity with absurdly large amounts of compensation for moral damages being demanded. Unfortunately, the courts satisfied these claims more and more often, which sometimes led to a newspaper going bankrupt. The newspaper «Vseykrainskie vedomosti» [“All-Ukrainian bulletin”], for example, ceased issue after the court allowed an absurd suit to defend honour and dignity with a massive 3.5 million UAH awarded as compensation for moral damages. As well as civil suits in defence of honour and dignity, criminal prosecution for slander or libel was also applied as a way of silencing critics. 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 were imprisoned.
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 web-sites, such as korrespondent.net, FORUM, «Ukrainska pravda» and others to a large extent gave new life to Ukraine’s information realm. Internet 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 there were no real grounds for speaking of a significant expansion in freedom of speech. There remained, 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 media outlet. Among successes (achieved largely thanks to the efforts of human rights organizations), 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 recommended 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 of Article 10 of the Convention being 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 honour and dignity were now much more often decided in favour of the latter, as long as the journalist had acted conscientiously. Thus, for example, all known suits brought against journalists to defend honour 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 ‘temnyki” (directives from the State authorities instructing journalists what to cover and how, and which themes to avoid – translator) 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 was obvious however the Ukrainian Internet community thwarted such plans.
9. The practice of classifying as secret and limiting access to official information became ever more widespread, with the justification given that this was safeguarding the information security of the State (with this concept not being defined by any law). Progressive laws, regulating access to information, were being effectively nullified by subordinate legislative acts and unlawful practice epitomized by the widespread use of illegal stamps restricting access to information. In particular, there were the stamps with «Not to be published» (used by the President), «For official use only» and «Not to be printed» (used by the Cabinet of Ministers, ministries and other departments). Our observations suggest that 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» in certain months reached 10% of the general number of documents. One notes that it was the very President who classified 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 «For official use only», effectively block access to documents with that stamp.
The range of information which could be classified a State secret also broadened significantly. A «Code of types of information which constitute a State secret» was first made public (in 1995), but then classified as secret. All of the above are flagrant violations of Ukrainian, as well as international, legislation. As for information on open access, departments were extremely reluctant to provide this. The response to formal requests for information was frequently a formulaic letter giving no answer, or there was often no response whatsoever. From 2000 to 2004 the situation with access to information about the activity of State executive bodies became a little better. In 2000 all State executive bodies opened their own web-sites, and access also appeared to drafts of laws. Following persistent demands from human rights organisations, the SBU in March 2001 declassified the «Code of types of information which constitute a State secret». On the whole, access to information held by state bodies remained a serious problem. The amendments adopted on 11 May 2004 to the 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 was now only allowed to work with information open under the rules of access. What is more, administrative liability was now foreseen if a journalist made information for official use only public. Yet what exactly information classified with the stamp «For official use only» was remained unclear. This effectively meant the introduction of censorship.
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 were therefore the subject of particular attention from human rights organizations. Such violations include political repression; combined with violence and / or being accused of various crimes; disappearances; the use of law 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 being considered in Ukraine. As far as the rights of minorities were concerned, the situation on the whole was relatively favourable, 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 could, perhaps, state that the rights of minorities were 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 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) had a significant effect on drawing public attention to the issues being considered there. Ukraine had become a member of the Council of Europe in November 1995, and had, since that time, become a party to a number of European conventions on human rights. Ukrainians now had the right to make appeals to the European Court of Human Rights in cases of violations of their civil and political rights, and were beginning to use these new opportunities. The number of appeals to the European Court steadily increased, as did the qualities of the appeals put forward, the result of which as of 1 August 2004 were 78 decisions declared admissible, with 22 judgments (as of 1 January 2005) on the merits in claims brought by individuals against Ukraine. In the future the number of rulings can be expected to rise significantly which should 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», «defence 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 better than ordinary individuals 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. The legal force, therefore, of these constitutional norms is highly dubious. One can cite as an example the fact that infringements of the right to peaceful assembly which is guaranteed by Article 39 of the Constitution became systemic as a result of the number of possible restrictions allowed for by the same Article being so loosely defined as to give considerable scope for abuse.
Moreover, the Constitution does not allow for petitions to the Constitutional Court from ordinary courts, not to mention those 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 ways different administrative bodies apply these norms. Of the thousands of appeals from individual citizens regarding the interpretation of constitutional norms received during the period in question, the Constitutional Court only considered a few. In other words, the constitutional system for defending human rights was not, in effect, working and the Constitutional Court merely served as 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.
New human rights organizations emerged in those years, with there being around 200 by the end of 2004, with no more than 10 working effectively. Nonetheless the results of the work of even such an extremely small number of human rights organizations are impressive. They can boast of hundreds of cases won in the courts, the preparation of independent reports on Ukraine’s fulfilment of its international commitments, lobbying changes in a number of laws, publication and circulation of literature on civic education and human rights, a number of optional courses on human rights in schools and institutes, educational seminars for various professional and social groups and many other successful actions. Yet these positive examples were lost in the overwhelming mass of human rights violations.
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 had the strength and courage in the face of aggressive pressure to reject vote-rigging and assert their choice against those in power. Factors contributing to this victory were the appearance on the active public area of two generations who had not been crushed and 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 defence of rights. The youth movements of 2004 were unconsciously (and for a certain number of young people – 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 can’t stop freedom!»
As Vaclav Havel said, the Presidential elections in Ukraine were the funeral toll for the remnants of Ukrainian post-communism. The bell which rang on the capital’s Maidan Nezalezhnosti [Independence Square] heralded precisely its demise. The development of events as they unfolded through Kuchma’s regime once again confirmed the old truth that a political regime, which violates human rights more and more flagrantly, is sooner or later doomed. However the development of events in 2004-2009 demonstrated that the funeral had been purely symbolic.
2005 – 2009
In 2005 one could see a significant improvement in the human rights situation. As a result in a reduction in the pressure of the State on the individual there was an improvement in those areas where the State must not arbitrarily interfere: freedom of speech; freedom of association; the right to free elections; freedom of business enterprise, etc. Human rights activists’ efforts resulted in an end to the practice of using illegal stamps restricting access to information “Not to be printed” and “Not to be published”. The Ministry of Justice declassified a significant number of government acts with the stamp “Not to be printed”, and the President – acts with the stamp “Not to be published. These documents demonstrated systemic corruption of the Kuchma regime. The general atmosphere in the country became more humane.
This process, however, proved more to do with a weakening in the regime itself which had made a conditional step towards the people which increased the level of freedom. Yet where the State had a duty to do something to improve the situation (fulfil its positive duties, for example, by ensuring proper investigation into cases of torture, enforcement of court rulings, etc), the situation could not change radically since nothing was done to achieve this. The situation was exacerbated by the unfortunate constitutional reforms passed on 8 December 2004 which came into force on 1 January 2006. These had extremely negative consequences by creating a battle for power between two centres for decision-taking within the executive – the government and the President, this seriously endangering human rights.
The heightened political struggle in 2006-2007 resulted in a general lowering in the level of political freedom which is gradually being eroded away. Political rights, for example, the right to be elected, are being undermined. This right can effectively only be enjoyed by members of political parties who make up less than 4% of the voters. In a democratic country party membership cannot be a precondition for standing for electoral office. The demand to introduce the imperative mandate which is in essence the guarantee of strict factional discipline also has an adverse effect on political freedom. Our parties are becoming ever more reminiscent of the Communist Party of the Soviet Union. All political forces violate the principles of the rule of law, for example, by putting pressure on the courts. The crisis prevented the carrying out of necessary reforms – constitutional, judicial, in criminal justice, administrative, etc. The struggle between political opponents for power led to the politicization of any issue, where each step of the authorities, each draft law or appointment was assessed only from the point of view of gaining advantage in the political struggle. This has had a highly adverse effect on the State apparatus and led to an increase in unlawful actions by the local authorities which paid virtually no attention to the recommendations of the central authorities. For example, the Kharkiv local authorities totally liquidated an anti-tuberculosis hospital with 675 beds in 2009, claiming lack of funding, and this despite a shocking epidemic of tuberculosis! They ignored all recommendations from the central authorities stating that this was unacceptable.
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. In 2007 and 2008 the government suspended the fulfilment of economic and social rights in the Budget 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.
Of concern is an increase in hate crimes. The number of racially-motivated murders and physical attacks has risen significantly in recent years. At present no bodies, aside from the MIA, have taken any steps towards overcoming the problems of discrimination, racism and xenophobia.
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 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 are seen all the time, these including unlawful seizures of land or other property in spite of the law, the wishes and decisions of local territorial communities or owners.
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 achieved certain changes for the better. 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. As a result, there remains a general assessment by the population of their position as being unprotected.
In 2008 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, 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 for 2009.
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. Reports on the human rights situation in Ukraine which the Ombudsperson should, according to the law, present annually, are rare. Over the entire 10 years there have only been four 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 assistants to National Deputies [MPs], among lecturers in MIA educational institutions, etc.
Among the positive processes of 2005-2009 concerning human rights were also the efforts of some State bodies, and in the first instance, the President to establish historical truth about the political repressions of the communist regime, in particular, about the manmade famine of 1932-1933, and the national liberation movement of the 1940s, the declassifying and publishing of archival material about political repression and a considerable improvement in access to SBU archives.
In conclusion, we are forced to conclude that with a few exceptions 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. The actions of the State in the sphere of human rights remain basically unsystematic, chaotic and ineffective. 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. Of no less immediacy is the task of creating and adopting a new Constitution to replace the outdated version of 1996, which was furthermore hopelessly spoiled by the unsuccessful reforms of December 2004. A new modern Constitution would mark a real and not merely symbolic end to post-communism in Ukraine.
However Ukrainian politicians are fighting for power, disregarding human rights and failing to under what destructive consequences for the State and Ukrainians this fight could have, having forgotten the historical experience of the twentieth century that ignoring human rights sooner or later leads political regimes to devastating defeat.