• Topics / The right to a fair trial
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Human Rights in Ukraine: Chronic Ills and New Challenges
According to a study carried out by the Democratic Initiatives Foundation as part of their “Ukrainian Democratic Barometer” project, Ukrainians are convinced of the real existence in Ukraine of the right to form political parties; to create civic associations; to freedom of speech; equality of minorities and of men and women.
They considered the following to be non-existent: the right to a decent standard of living; the right to elect those in power; the right to fair court proceedings; the right to be protected from arbitrariness on the part of the authorities.
75 % are convinced that there is no equality before the law, while only 10 % believe that there is. 79% believe that those with money have an advantage before the law, 73% - those with power.
The study also included an expert assessment given by the Ukrainian Helsinki Human Rights Union (Volodymyr Yavorsky) and the Kharkiv Human Rights Group (Yevhen Zakharov). They assessed the human rights situation in Ukraine at 2.2 on a scale of 1 to 5. They consider the worst situation to be with observance of the right to life; protection from torture and observance of economic and cultural rights. They also point to a low level of protection for socially vulnerable groups (the disabled, the mentally ill, prisoners and others).
Protection and observance of human rights
The overall rating, as mentioned, for 2009 was 2.2 (unless otherwise indicated, on a scale of 1 – 5), with the first 6 months – 2.3 and from July to December – 2.10.
The human rights situation in 2009 is seen as variegated, with the political crisis making it impossible to carry out needed constitutional, judicial, administrative reform, reform to the criminal justice system, etc. The battle between political opponents led to any issue being politicized and each step of the authorities, draft law or appointment only viewed from the point of view of their possible advantage in the political struggle. The latter had a highly detrimental effect on governance of the State apparatus and led to an intensification of illegal actions by local authorities which virtually stopped paying heed to central government. An example of this was the closure in Kharkiv of the city tuberculosis clinic with 675 beds, despite opposition from the central authorities. All of this was exacerbated by the economic crisis which hit the poorest and middle class hardest.
The situation with economic and social rights was inevitably going to suffer, especially since protecting these rights was not a priority for the regime. As in 2007 and 2008, the government suspended the exercising of various economic and social rights in the 2009 Budget despite the Constitutional Court having again ruled this to be unconstitutional.
On the other hand the presence of political competition and a certain degree of freedom of speech positively affected the level of self-awareness of society which matured and became better able to think clearly. Human rights organizations became stronger and forced the authorities to take their assessments and proposals into account. In some areas they achieved certain changes for the better. One can cite dozens of examples of successful action by human rights groups 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
There was certain progress in the Ministry of internal Affairs [MIA], with the new Department for the Monitoring of Human Rights in the Work of the Police, created in 2008 working dynamically and achieving results. Of course this could not 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. Yet the work of the new Department had proved highly instrumental in identifying those violations, making information about them known, protecting the victims of violations, and studying the conditions which foster such violations. The Department for the Monitoring of Human Rights in the Work of the Police, the Public Councils on Human Rights, and the mobile groups for monitoring observance of rights and liberties were creating a new single system of departmental and public control over the observance of rights in the work of police stations.
This interview clearly preceded recent events. Despite the undoubted success of the Department, the new leadership of the MIA in March 2010 dissolved it, and in April announced plans to “create” public councils with at least the name of the “well-known human rights activist” arousing well-founded doubts about the purpose of this move. [see, for example, http://khpg.org.ua/en/index.php?id=1271864041 – translator].
We would note that in comparison with that 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. There have only been four reports on the human rights situation in Ukraine over 10 years, even though according to the law the Ombudsperson should present a report each year. .
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 to ensure fair trials.
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 2009 the National Expert Commission for the Protection of Public Morality continued to expand 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.
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.
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.
The human rights situation continued to worsen in the second half of 2009. The political struggle intensified on the eve of the presidential elections, and human rights finally ceased to be of any priority for either those in power or the opposition. Dangerous trends intensified, such as violations of the Constitution and prioritizing of political expediency over the principles of law; more and more secrecy with information and lack of transparency of the actions of the authorities with these covering up corrupt dealings.; contempt for the judiciary and the justice system as a whole; attempts by the authorities to use the judiciary in their own interests and its being included in political battles, leading to a serious weakening of the judiciary. There were also attempts to use the law enforcement bodies to fight opponents resulting in their politicization.
The situation as regards socio-economic rights continued to worsen both because of the economic crisis and the inability of the authorities and bodies of local self-government to carry out their duties properly. This all resulted in an ever-widening gulf between rich and poor.
The lack of information openness, transparency and accountability of the authorities to the public, the unwarranted classifying of information and restrictions on information are perhaps the most dangerous violations of human rights for the country’s future.
In the second half of 2009 it became clear that most local councils and their executive bodies had in breach of the law not published their budgets for 2009, detailed reports on how the 2008 budgets were spent, were hiding information about allocation of land, general plans for city development, etc.
A strong and independent judiciary is the main prerequisite for observance of human rights and fundamental freedoms. The lack of respect for the justice system, mechanisms of support of the court’s independence and authority renders protection of human rights illusory.
At the end of 2009 respect for the judiciary fell to a new low since politicians, eager to ensure control over the courts before the elections dragged them into an unseemly battle for powers, positions, court stamps, etc. In the second half of 2009 the Supreme Court demonstrated contempt for the justice system when it ignored a European Court of Human Rights Judgment in the case of Yaremenko v. Ukraine. Yaremenko, under torture, confessed to a murder which he hadn’t committed. The Court in Strasbourg found serious violations of Article 6 of the Convention, the right to a fair trial.
The use of torture and other forms of ill-treatment, as well as arbitrary detention and arrests by law enforcement bodies remain systemic violations in Ukraine. The lack of effective examination by the Prosecutor, found in many European Court of Human Rights judgments, as well as the lack of proper court monitoring over how confessions and information are obtained, court powers to exclude evidence received through torture and ill-treatment all create an atmosphere of impunity which make torture and ill-treatment routine practice.
According to a sociological study carried out by the Kharkiv Human Rights Group together with the Kharkiv Institute for Social Research, around 600 thousand people living in Ukraine may be subjected to various forms of unlawful violence.
In August 2009 a new Head of the State Department for the Execution of Sentences was appointed. Oleksandr Halinsky publicly stated that he planned to work in cooperation with civic human rights organizations. He even dismissed several penal administration heads at the demand of those organizations for beating prisoners. On 29 September public hearings were held on prisoners’ rights, these highlighting a number of problems in the area.
[Mr Halinsky was dismissed by the new government in March 2010 – translator].
During the second half of 2009 the influence of the Department for the Monitoring of Human Rights in the Work of the Police was considerable. Hundreds of people received help from its staff in reinstating their violated rights. The Department became a certain instrument of prevention of human rights abuse in the MIA. It was thanks to its activities on monitoring police holding facilities that conditions were improved in these facilities, as confirmed both by those held there and by specialists.
Aside from 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.
Expert assessments on a scale from 1 to 5
1. Legal provisions for human rights
Average for 2009: 2.30
This remains inadequate, with many provisions not complying with international human rights standards, and there being a lack of effective procedural norms to establish proper procedure for exercising many rights.
The greatest problems in legislation are linked with the activities of the law enforcement agencies and the courts.
There is still no legislative concept of discrimination, let alone mechanisms for fighting it.
Legislation on civic associations does not comply with Article 11 of the European Convention.
A number of draft laws limiting human rights were considered by parliament, including one on peaceful assembly. Necessary draft laws on civic associations, legal aid and judicial reform were not reviewed. An extremely dangerous law was passed on appropriation of land for public needs.
2. Observance of laws concerning human rights: Average was 1.90 (2.0 in the first half, 1.80 in the second)
A fundamental problem is enforcement of legislation and mechanisms for this. Legislation is disregarded at all levels of power. This is linked with unclear legal regulation and the lack of clear procedure for exercising rights. To a large extent the problem likes in the lack of effective mechanisms to force the authorities to implement legislation.
As mentioned above, failure to enforce court rulings is a major problem.
During the second half of 2009 in connection with the elections and the flu epidemic, public conflicts sharpened this leading to some increase in rights violations.
3. Effectiveness of the activities of State bodies and specialized institutions aimed at human rights defence.
Law enforcement agencies function as a punitive system with an inquisition type of criminal process and systemic violations of rights.
Fairly weak powers and also passiveness of the Human Rights Ombudsperson make this institution ineffective.
Civic organizations are hampered by an outdated law on civic associations, prohibiting a lot of activity.
3. The highest rating was received by the Department for the Monitoring of Human Rights in the Work of the Police – 3.50.
The lowest – the National Expert Commission for the Protection of Public Morality 1.25.
Other low ratings were 1.50 for the Prosecutor and 1.50 for the MIA.
4. Political rights and freedoms (freedom of peaceful gatherings, of association, the right to take part in governance, to elect and be elected)
Average 2.80 (3.00 in the first half of the year, 2.60 in the second)
There is a reasonably high level of political freedom, with no persecution on political grounds.
However in autumn 2009 the Cabinet of Ministers changed the rules for forming public councils under state bodies, making it effectively impossible to create these. This has significantly reduced the ability of NGOs and the citizens to have impact on state policy.
5. Freedom of thought, conscience and religion, freedom of views, expression, freedom of information
Average: 2.32 (first half 2.50, second half – 2.15)
The situation with freedom of peaceful assembly is reasonably positive, though worse than in 2005-2007.
There are, however, a lot of problems with freedom of association, with the law containing restrictions, going back to 1991.
There was an increase in cases where people were persecuted or suffered for their civic activity.
In May 2009 59-year old environment protection activist Oleksandr Goncharov was murdered by two assailants. His wife was badly beaten. Two days before his death, Mr Goncharov had taken part in an action to stop the illegal extraction, deposition and sale of sand at Zhukiv Island by several commercial firms.
In July there was an attack on another activist. These attacks are committed by criminals linked with corruption, however the police have not properly investigated any of them.
Freedom of association is restricted in the sphere of activities of religious organizations, this being confirmed by judgments of the European Court of Human Rights.
The second half of 2009 and the election campaign saw a worsening in the situation with freedom of speech in the media, with there being an increase in the amount of paid material in the press and in the number of attacks on journalists.
6. The right to life, equality before the law, the right to a fair trial, to privacy, freedom of movement, right to asylum
7. Economic rights : 1.77
The economic crisis led to increased problems in this area, including an increase in the number of infringements of labour legislation (people dismissed with such infringements, pay reductions), and, as mentioned, the failure by the government to pay social benefits stipulated by legislation. There were a huge number of court cases over this, with people also turning to the European Court of Human Rights.
8. Cultural rights: 1.77
The lack of budgetary funds led to a reduction in support for newspapers, libraries, etc, and bookshops were evicted.
There is no systematic policy on cultural rights.
9. Real chance for the average citizen to uphold his or her rights in court: Average: 2.65
Such cases are fairly common in civil suits, but least common in criminal cases. Only about 60 acquittals are handed down in a year, with half of these being revoked by higher courts.
Other problems in this area are the duration of such court proceedings, and failure to enforce court rulings.
There are also major problems with independence of judges, corruption and the lack of guarantees for legal aid.
10 Equal rights regardless of gender, race, state of health, language, religion etc:
Average: 2.32 (2.50 in the first half, 2.15 in the second)
11. Racism, intolerance etc: Average: 2.50
The number of violent hate crimes decreased in 2009 against 2007 and 2008. There was also a significant decrease in the number of anti-Semitic publications.
12. Protection of especially vulnerable groups (the disabled, the mentally ill, drug addicts and people living with HIV/AIDS, with tuberculosis, prisoners, etc
The system of social protection is on a very low level, with the government each year unlawfully restricting the rights of these groups through clauses in the Budget. This has become considerably worse as a result of the economic crisis.
Proposals from UHHRU and KHPG on improving the situation
- Table in parliament and pass a Criminal Procedure Code, and then new versions of the Code on Administrative Offences, on the Prosecutor’s Office and the Criminal Code. These changes are designed to ensure human rights protection and eliminate obstructions to effective investigations. The reforms should be carried out in accordance with a Presidential Decree on the concept strategy for reform of criminal justice, passed in 2008.
- Parliament should carry out judicial reform, the foundation being draft laws on the status of judges and the court system, passed by parliament in their first reading and approved by experts from the Council of Europe.
- In implementation of the pilot judgment from the European Court of Human Rights in the case of Ivanov and others v. Ukraine, the government was, by January 2010, supposed to draw up effective measures for removing problems on court rulings, especially in cases where one of the parties is the State, a State institution or enterprise.
- Pass a law on civic organizations which the Cabinet of Ministers should again pass to parliament.
- Parliament should examine a draft law on legal aid.
- Parliament should examine a new version of the law on information and a draft law on access to information..
- The Cabinet of Ministers should add to the Budget sources of financing for all expenses linked with exercising socio-economic rights.
- The Ministry of Justice should draw up and submit to parliament a law on protection from discrimination, on personal data protection, on information interception;
- In accordance with the Optional Protocol to the UN Convention against Torture, Ukraine should create an independent monitoring (preventive) mechanism of supervision over places of confinement, including hospitals and school-orphanages.
- The President should draw up and affirm a comprehensive range of measures for reducing torture and ill-treatment.
- Turn National Television Channel 1 into a public broadcasting channel, with financial and administrative independence. Its management must not be appointed solely by a State body, and there should be protected articles for financing and there should be no groups for early dismissal of the channel’s management.
Abridged and slightly supplemented from a text at http://helsinki.org.ua/index.php?id=1272022633