Human rights in Ukraine from March through November 2014: main trends
The incompatibility of domestic policy with the interests of Ukrainians resulted in open confrontation with the government after giving up of integration with the United Europe, which initially was going off peacefully, but after the use of force by the government and killing of peaceful protesters it turned into an armed clash. The Ukrainian people without prior arrangement exercised its natural right, nowhere provided for by the Ukrainian legislation, specifically the right to revolt against a political regime that had seized power using it only for its own enrichment and subjecting all its opponents to repression in flagrant violation of human rights and fundamental freedoms. Once again the Ukrainians demonstrated that for many of them freedom, justice, honor and dignity were more valuable than their own life. These events were called in Ukraine and in the world “the revolution of dignity”.
The spirit of Maidan, the desire for changes largely determined the actions of the new administration, which was formed after the victory and, no doubt, had a positive intention to reform the country, particularly in the field of human rights. However, the occupation of the Crimea by Russian troops, artificially organized separatist movements in the East, which gradually turned into an armed aggression, and full-scale military conflict with Russian Federation in the Donetsk and Luhansk Oblasts relegated human rights issues to the background. At the best, their solution was postponed to future peacetime, at worst, the changes in legislation and practice, which with some exceptions were observed also aggravated the current state of implementation of human rights and fundamental freedoms.
In general, we can state that the new administration often neglected the supremacy of Law and violated the Constitution guided by political expediency. In the first days after the victory these violations could be justified: the revolution always breaks the old legal system and creates a new one. The rapid actions were required to establish the state manageability. According to the Constitution, in the absence of the President, the head of the Verkhovna Rada of Ukraine executing his duties cannot appoint the ministers of defense, foreign affairs, the head of the SSU, dismiss and appoint the heads of oblast state administrations, nominate the Prime Minister for election and so on. However, it was impossible to leave the country without bodies of power, and those actions were indispensable. But nobody can play fast and loose with the Constitution and laws for the sake of political expediency! Nevertheless just this took place.
The Law of Ukraine “On the renewal of certain provisions of the Constitution of Ukraine” adopted on February 21 violated the Constitution. Article 85 of the active Constitution of Ukraine (valid at the time of adoption of this Act), which contained a list of parliamentary authority did not provide for any opportunity for “renewal of <...> the Constitution of Ukraine” by a single parliamentary vote. According to Art. 85 of the Basic Law, the full powers of the Verkhovna Rada of Ukraine (in terms of possible amendments to the Basic Law) include “…introduction of amendments to the Constitution of Ukraine within the limits and in compliance with the procedure stipulated in Title XIII of this Constitution”. It is obvious that this procedure is exceptional in its procedural parameters, lengthy and complex.
In addition, as stated in Art. 5 of the Constitution of Ukraine, “the right to determine and change the constitutional order in Ukraine shall belong exclusively to the people and shall not be usurped by the State, its bodies, or officials.” The latter, as the formal logic and common sense suggests, meaning that all changes to the Constitution comprising or substantially affecting the elements of the constitutional order of Ukraine should be approved only by the people at a national referendum.
This provision underlined in his time by Bohdan Futey should be considered universally binding. Strictly speaking, the above circumstances are sufficient for the Constitutional Court, under any other conditions, to disagree with the adoption of the constitutional reform on December 8, 2004 by purely parliamentary vote. In addition, the constitutional bill No. 2222-IV was voted by Parliament in a package with the ordinary bill and enactment of the Verkhovna Rada of Ukraine, which led to a legally unacceptable backward administration, i. e. a state where the texts of ordinary laws and regulations directly affected the character of the Constitution of Ukraine. It seems that only a low level of legal culture in Ukraine allowed discussing the topic of “betrayal” of the Constitutional Court of Ukraine and violation in this case of their oath by the judges of Constitutional Court.
The Parliament began to step in for the judicial power. It was inappropriate to dismiss the judges of the Constitutional Court who voted in September 2010 for the abolition of the Law on amendments to the Constitution; it was inappropriate to instruct the Office of the Prosecutor General of Ukraine to open criminal investigation into the illegal adoption of anti-constitutional decision, according to the opinion of 307 People’s Deputies! The Parliament acted illegally having assumed the powers of the High Council of Justice (HCJ).
The parliament was also unauthoritative to discharge political prisoners (with the exception of Tymoshenko), since only a court of Law is entitled to adjudicate on such a matter having reviewed the case. The Parliament could return all the powers to the Supreme Court, which it had prior to 2010, and provide a mechanism to review such cases in extraordinary proceedings, for example, at the request of the Ukrainian Parliament Commissioner for Human Rights. Instead, the Verkhovna Rada passed a Law on individual amnesty — a dubious legal construction! — to justify its actions.
Later we also observed repeated violations of the Constitution and the supremacy-of-Law principle, disregard for the judicial power and desire to manage it based on political expediency. As a result we have to conclude that the constitutional law has been distorted and the legal system has become misbalanced. The only way out is the adoption of a new constitution and further review on its basis of ordinary legislation and, consequently, practice. The developers of a new constitutional project should focus not on cosmetic amendments, but on radical change of the Constitution of Ukraine. It has to be based on powerful state, responsible government and rule of law. However, so far the constitutional reform has slowed down. The amendments to the Constitution proposed by the President were lame and were not even considered by the Parliament.
No other crucial reforms in the area of human rights−judicial, criminal justice, education, etc. — actually have come to a standstill. The only exception was the adoption of the new Law on Public Prosecution. The probation bill, prepared for the second reading, which needs to be adopted, is making no headway. The draft Code of criminal offenses has been waiting for a long time now. Its entry into force would have immediately lightened the workload of investigators who are up to the eyes in work now. But there is a drag on it for some reason. The Act on Restoration of Confidence in the judiciary has failed to replace court chairmen, 87% of them have become second termers under this Law, but this time it has been carried out in a “democratic way”. The abortive reforms in other areas (pension, medical and others) need to restart the process of real reforms.
In late March and early April, four incompatible lustration bills were submitted for consideration of the parliament; moreover, the Parliament obviously does not want to pass such a law. later the bill “On lustration of power” was submitted, which was an attempt to combine four previous bills; however; it seemed to reflect a populist approach and certain of its provisions were contrary to the recommendations of the Council of Europe, European Court of Human Rights for lustration cases and principles of international law. In particular, it specifies the layoffs of all officers and employees, which is ill-founded, and many of its procedures give rise to systemic violations of human rights. Nevertheless, on August 14 it was accepted in the first reading. More than 400 comments were submitted, but the bill was voted “for” as a whole on September 16, while the people’s deputies did not have the text of the bill, which was passed through force of the streets! It remained unknown whether the comments were taken into account and which ones specifically. The text of the Law was uploaded to the Verkhovna Rada Portal only on September 26. These actions in Ukraine simply tend to destroy parliamentarianism as such. Nevertheless, the President signed it into law.
The bills are being worked out intending to make fight against separatism more effective, such Laws “On preventive detention”, “On Amendments to the Criminal Code of Ukraine (about strengthening of accountability for crimes against national security of Ukraine)”, on suppression of separatism, on introduction of special pre-trial inquiry routine in the area of ATO and others, although all of them violate the Constitution and international human rights standards. For example, according to the first bill the bodies of internal affairs and security service are entitled without actually opening the criminal proceedings to hold a person in custody for 30 days. Meanwhile the detainee will not be covered by the norms of Criminal Procedure Code of Ukraine, her/his status will not be clearly defined, s/he will not be protected by the package of rights designed to protect persons against who fall under such preventive measure as “detention”. The detainee also may not change her/his condition under the provisions of the Criminal Procedure Code of Ukraine concerning the change of preventive measure, because the “preventive detention” will not be considered a preventive measure. The second bill contains an unreasonable rejection of the principle of limitation for criminal responsibility for a number of crimes against basics of national security, as well as new maximum size of 12 years in prison for the lower limit of criminal punishment. These laws will certainly be amended sooner or later.
It should be observed that the adoption of progressive amendments to the Criminal Executive Code contributed to the openness of penal institutions: now the right to freely visits there are granted to People’s Deputies, their assistants and doctors and journalists accompanying them. These changes have also improved the possibility of telephone communication of prisoners with their families and allowed long meetings for the life-term prisoners.
There emerged a new domestic problem of internally displaced persons (IDPs) from Crimea and Donbas. As a result of the occupation of the Crimea and military aggression in the Donbas area large groups of local residents were forced to leave their homes fleeing political persecution and violence for their support of the Unity of Ukraine. In June, large groups of inhabitants of Slovyansk, Kramatorsk, Horlivka and other cities located in the area of escalated armed conflict moved to Kharkiv, Kyiv, Dnipropetrovsk and other areas trying to escape the hostilities. In July and August the great migration set in from the cities of Luhansk Oblast where hostilities raged. The state was not ready for new challenges; numerous volunteers and local authorities were loaded with all the work and care for the IDPs. The bill prepared by the public “On IDPs in Ukraine” and endorsed by international and domestic experts was turned down by the Parliament and instead on June 19 much more simple Law was approved that solved only the registration problem of IDPs and was not aimed at solving all their problems. Under public pressure, later the President vetoed the bill. The public in cooperation with authorities and international organizations prepared a new bill, but it was adopted only 20 October and signed by the President on November 22. The registration of IDPs is conducted thoroughly badly; particularly the returnees to the liberated territories remain not accounted for. Approximately half of IDPs are not registered at all. As of December 5, there were 513,998 registered IDPs.
In general, we must admit that, despite the many mistakes the new administration managed to overcome during the period from February 22 to 30 November the political and economic crisis, re-create combat-ready armed forces and security agencies, create and train volunteer territorial defense battalions, which together with the National Guard and special forces of the Ministry of Internal Affairs rescued the country, to prevent geographical expansion of the conflict with Russia beyond the Donbas area, successfully hold off-year presidential elections on 25 May and early parliamentary elections on 26 October. The cooperation of government and municipal administrations with the public became more successful and effective. The volunteer activity has developed significantly and showed the best examples of social solidarity. However, the military conflict that absorbs all efforts and money, inertia of the political system, corruption in government and local agencies, and absence of reforms hamper the development of the country that has not far departed from the oligarchic regime of Yanukovych, on account of which there remain numerous threats to human rights and fundamental freedoms.
Respect for individual rights
The use of force, to which the defenders of Maidan in Kyiv had to resort, the death of a large number of people, the general excitement and euphoria of the first days after the revolution, a large number of weapons in the hands of people led to a big slump in immunity against violence. These days the armed men demanded to carry out their orders exclusively, there were uncontrolled mass inspection of documents, arson of houses, prevailing mob law, poles and corridors of disgrace, persecution of families of known regionals, sometimes the crowd just beat up people without any reason. The militia also was disoriented and inactive. The members of artificially organized separatist movements in the Donbas and Kharkiv began to carry out coercive actions, but much more violent and imitating corridors of disgrace and giving Euromaidan supporters merciless beatings. As was mentioned above, leaders of the self-proclaimed DPR and LPR made it a running practice to persecute at first pro-Ukrainian public figures, and then just anyone who did not like them or disagreed with their actions. As it later turned out, the people who daily had been disappearing without a trace were either shot and killed or held in the basements of public buildings belonging to the Security Service, the Ministry of Internal Affairs and others captured by separatists in Slovyansk, Luhansk, Donetsk, Horlivka and other cities. For their release the abductors demanded a ransom: either a sum of money, or a car, or any other property. Overall we know about more than 400 cases of enforced disappearances, all victims were listed, although the list is still incomplete in reality. The everyday looting, searches, forced requisition of cars and other property became a routine matter.
The detainees were kept in terrible conditions, often without electricity, without walk, on the unaccomodated premises; they were very poorly fed, and did not get medical aid. They were tortured, and some of them were beaten to death, such as deputy of Horlivka City Rada Volodymyr Rybak whose body was found in the Kazennyi Torets River near the urban village of Raihorodok, Donetsk Oblast, on April 22 with signs of torture and ripped stomach. There was also found another man in the same condition that was identified later as 19-year-old student Yuri Popravko. Rybak was abducted on April 17 for trying to take down the flag of the DPR and to raise the national flag on the building of Horlivka Administration.
The captured Ukrainian Law enforcers and defense officers were awfully tortured, beaten, and humiliated by separatists.
This led to a similar response of Ukrainian Law enforcers and defense officers, especially of some voluntary battalions such as “Aidar” (most complains concerned the soldiers of this battalion of the Ministry of Defense), “Azov”, “Dnipro-1”, and “Donbas”. Some of the men believed that they could treat the prisoners like the separatists did. As a result, we have documented cases of torture of captive separatists (even with fatal outcome), kidnapping followed by ransom demand, capture of cars, and looting because the soldiers believed that it was dictated by the laws of war. The security officers arrested people who looked suspicious; the use of violence against them became a daily practice. The prosecutor’s office did not investigate these crimes.
However, it was possible to observe the growth of hatred towards separatists, rejoicing on the occasion of killing of militants, and sharing in social networks of photos of their corpses. The rising level of public violence created the basis for justification in public conscience of the facts of torture and other kinds of violence which naturally affected the practice of public authorities. With the implicit acquiescence of the public, the Law enforcers exhibited brutality towards detainees who were accused of separatism and terrorism, as evidenced by numerous documented facts of beatings and even torture of detainees.
The right to life in the Donetsk and Luhansk oblasts has become illusory. The militants killed people (for example in Brianka Town, Luhansk Oblast four students were shot and killed just because they greeted one another “Glory to Ukraine!”−“Glory to the heroes!” Two of them died on the spot, two were hospitalized in serious condition). The exact death toll is unknown, but it is talked about hundreds of dead persons. Many civilians lose their life as a result of heavy artillery fire, and it is extremely difficult to determine which of parties in the war is responsible for shelling, although much evidence is pointing to the fact of pin-point shelling of residential neighborhood carried out by militants. According to human rights activists, only in Luhansk 348 civilians were killed, which is not the full statistics.
Respect for Political Rights and Freedoms
The state of political rights was completely different depending on the region: in the Autonomous Republic of Crimea, Sevastopol, Donetsk and Luhansk oblasts the political freedom in general was virtually abolished, while in other regions it was enjoyed almost without restrictions. Therefore, these regions should be considered separately.
After the occupation of the Crimea chasing set in for all social activists who tried to publicly declare pro-Ukrainian position and disagreed with the actions of the new Crimean leadership and occupants from the Russian Federation. Some of the activists were arrested and accused of fictional criminal offenses; for example, the famous producer Oleg Sentsov was arrested on May 11 on suspicion of terrorism. Most pro-Ukrainian public figures had to escape from political persecution and move to mainland Ukraine. Once and again the journalists were assaulted.
The referendum on the status of the Crimea held on March 16 was not recognized as legitimate. It was conducted with numerous violations of electoral rights. According to official data, for the reunification of the Crimea with Russia as a subject of the Russian Federation 96.77% voted in the Crimea (turnout 83%) and 95.6% of residents of Sevastopol (89.5% turnout). However, according to the report of the Council on Human Rights and Development of Civil Society under the President of the RF “Problems of Crimean Residents” released on April 21, the overwhelming majority of residents of Sevastopol (turnout at 50-80%) voted for joining Russia, while in the Crimea, according to various sources, 50–60% of the electorate voted for accession to Russia at a total turnout of 30–50%. Moreover, the Crimean residents voted not so much for joining Russia, as for termination, as they maintained, of “outrageous breach of all limits by corruption and villainous domination by Donetsk henchmen” while the residents of Sevastopol did vote for joining Russia.
For the first time in all years of independence the Crimean Tatars were unable to hold rally on May 18 in memory of victims of deportation of the Crimean Tatar people marking the 70th anniversary of deportation. In general, it can be concluded that the Crimean Tatars were subject to political pressure to make them reject their ethnic and religious identity. In the early days of the occupation more than three thousand Crimean Tatars moved to mainland Ukraine (mainly to Lviv) rightly fearing political persecutions due to their membership in non-traditional sects of Islam.
In Donbas, the displays of pro-Ukrainian position also became a pretext for political persecution which led to migration of large number of Ukrainian Donbas activists and journalists to other regions of Ukraine, while those who remained became victims of political persecution. Even the membership in parties like Batkivshchyna and All-Ukrainian Union Svoboda called forth arbitrary arrests and detention as hostages in outrageous conditions. There were cases of arrests of persons who had expressed their own assessment of the actions of DPR and LPR in social networks. The exact number of detainees is unknown, but it can be argued that their number totaled at least 400 prisoners. The membership in election commissions during the presidential elections in Ukraine on 25 May also incurred a risk of becoming the object of political persecution: the separatists smashed up ballot stations, destructed property, beat judges of elections ad abducted separate committee heads intending to prevent the election. As a result, in the Donetsk oblast only 15.37% and in the Luhansk oblast 8.94% of voters were able to participate in the elections. The referendum held on May 11 in Donbas under conditions of opposition of DPR and LPR, on the one part, and the Ukrainian authorities on the other, looked rather like a farce than free expression of popular will. The election was successful only in some areas at some polling stations, and the results were rigged.
In other 23 regions of Ukraine the level of political freedom after the victory of the revolution of dignity was rather high. The political discussions might well be inflammatory, but all political forces were able to express their views despite the fact that the state began criminal prosecutions for acts of separatism in public speeches and media. So far, no trial has taken place; therefore it is difficult to say to what extent the state intervention in such cases is proportionate. The overall high level of political activity significantly decreased in the East. In the east and south, especially in Kharkiv and Odesa, the peaceful assemblies sometimes turned into fights and even armed conflicts. According to our observations, such events were almost always deliberately provoked and looked like prepared-in-advance special operations, such as events in Odesa in early May. It should be noted that with the deepening military conflict in Donbas the public events became more aggressive, and animosity among political opponents intensified. The peaceful gatherings became tenser and they were accompanied by clashes of protesters with militia and mutual accusations of violating public order, abuse of power or inactivity. The absence of a Law on freedom of assembly has become even more pronounced.
The election of the President of Ukraine, despite the difficult situation in the country, passed without serious violations of voting rights and election observers recognized the election as free and fair.
Over this period of time the legislation on political rights underwent little changes, although these changes are necessary because they have to normalize political life in accordance with the current political situation, which may become explosive and lead to a new Maidan.
Observance of civil rights and liberties
The situation with the observance of civil liberties is fundamentally different in the Crimea and Donbas, on the one hand, and in the other regions of the country, on the other.
On the whole, the freedom of expression in Crimea is roughly in the same situation as in Russia. A few pro-Ukrainian media or media that tried to freely express themselves mostly ceased to exist, in particular, the popular “Chornomorka” was shut down. On the peninsula all Ukrainian channels were turned off and only Russian TV channels were broadcasted. There remains the only broadcaster that allows free discussions: the ATR Crimean TV Channel; but it is under constant pressure from the new government of Crimea, including the coverage of the leaders of the Crimean Tatars. There are also several online sites that attempt to provide accurate information and independent comments. But they are working under constant threat of repressions.
The freedom of religion in the Crimea is threatened: there were repeated actions targeted at Islam and Orthodox Church of Kyiv Patriarchate, the number of acts of vandalism were performed against the buildings of these denominations.
The situation in the Donbas, in the region controlled by the DPR and LPR, in particular, in Donetsk and Luhansk is even worse. Here the civil liberties−the free flows of public opinion, freedom of assembly, association, etc.—were actually suppressed. The journalists, who had turned down the propositions to work for propaganda media of LPR and DPR, were forced to leave the Donbas, but they try to support their local Internet resources from outside or start up new projects.
Both in the Crimea and Donbas the journalists are exposed to assaults, threats, beatings, damage of appliances and more.
In other regions of the country the persecutions for the expression of opinions have been stopped, the pressure exerted on journalists has disappeared, and they feel free. However it should be noted that the free journalism as a phenomenon is a sort of rarity in Ukrainian information space, as it was in the past as well. The majority of journalists are working like propagandists and not like reporters. This is partly due to the extremely intensive anti-Ukrainian propaganda in Russia, where the Russian media constantly distort information, manipulate public conscience and just blatantly lie. In Ukraine, there are also many such media that present the facts selectively in order to manipulate readers’ consciousness. Therefore Ukrainian journalists and media as a whole try not to report negative facts which might be used by opponents for information war against Ukraine. For this reason, the freedom of information is also limited: in the time of military conflict the state limits the coverage of events which generates numerous fakes the Internet and social networks.
It is very important to consolidate achievements of the revolution in this field at the legislative level to evade mistakes of 2005–2006.
Observance of the right to equal rights;
outburst of xenophobia and intolerance
There remain the most serious problems with indirect ageism and level-of-health discrimination. Traditionally there is a wide-spread hidden discrimination against the Roma and LGBT community. As a result, all Roma were forced to flee from Donbas because the militants of LPR and DPR pledged to exterminate them.
A new issue of discrimination based on citizenship has emerged recently: it concerns Crimean citizens who do not want to obtain Russian citizenship and want to remain citizens of Ukraine. By Russian legislation these citizens are subjected to restrictions concerning official positions in government and municipal authorities. However, in the Crimea the people fear that without Russian citizenship they will not be permitted to work in public institutions. Moreover, the residents of the Crimea, who give up Russian citizenship, will not be eligible for Russian pensions, salaries, and social benefits. only one month term starting from April 1 was granted for refusal of Russian citizenship and confirmation of Ukrainian citizenship; initially the officials opened only three offices for application taking (Simferopol, Bakhchisarai, Bilohorsk), where it could be done, but at the end of April there were eight offices already. As a result, many residents of the Crimea were not able to exercise their right to choose citizenship.
Despite the high level of inter-ethnic and inter-religious tolerance, which is a tradition in Ukraine, the existing problems in this area have deteriorated due to the aggressive policy of the leaders of the Russian state. The relationships between ethnic Russians and ethnic Ukrainians became more complicated, especially in the Crimea.
In the Crimea, the condition of ethnic Ukrainians and Crimean Tatars has seriously deteriorated. The ethnic Ukrainians became the object of persecution for their use of Ukrainian language and Ukrainian symbols, they are forced to hide their identity because of the threat of violence and harassment, including political, because for the new Crimean authorities belonging to the Ukrainian minority automatically implies support for the unity of Ukraine and its territorial integrity. The Ukrainian language has almost completely disappeared from the information space on the peninsula. The question is about closing down schools with Ukrainian language of instruction.
The Crimean Tatars are also in a dangerous position as they suffer from threats and physical assaults. The Crimean Tatars are forced to obtain Russian citizenship, but they thing that if they agree they can stumble across the problems of land and property ownership, access to education and employment. Some Crimean Tatars belong to religious groups that are considered illegal in Russian Federation and therefore they justifiably fear persecution on political grounds. As a result, more than three thousand Crimean Tatars left the peninsula, mostly going to Lviv.
In the east, there was an increase of intolerance, display of hostility and hate crimes against people of Ukrainian identity that used Ukrainian symbols. In particular, it became apparent in destruction of cars with Ukrainian symbols. The Maidan activists were labeled as “Banderivets”, “Nazis” and “fascists”. This is a direct consequence of total misinformation and lies which are mass produced by Russian media. To prevent further growth of intolerance it is very important to debunk these baseless allegations about manifestations of nationalism, fascism and extremism by Ukrainians and Ukrainian authorities in general, so that they do not spread in the world.
Rights of servicepersons
The absence of adequate legal qualification of the conflict in the Donetsk and Luhansk oblasts, the understandable reluctance to abandon the term “anti-terrorist operation” and to call this operation a military conflict and impose martial law gave rise to serious violations of rights of participants in these events. The KhHRPG is holding an inquiry into many cases where according to the documents the servicemen are away on military business or registered at some military unit, and therefore cannot prove their participation in hostilities, get an injury certificate (they get only a certificate of treatment for a specific disease without naming an injury as the cause) and others. There were arguable instances of imputation of a desertion when as a result of being under fire of multiple rocket launchers Grad from Russian territory had to save their life and leave their combat position. It is necessary to look for and find legal framework that would reflect the real state of current military conflict determining the legal status of the participants.
Observance of economic, social, and cultural rights
The realization of social and economic rights of Ukrainians in the period under review was a big problem: in the country devastated by the regime of Yanukovych the financial and economic crisis set in; it was exacerbated by the need of the off-budget means for creating combat-ready forces and conduct of conduct of operations. However, the government managed to fulfill its basic responsibilities to ensure social and economic rights and avoid default and collapse of the economy.
The problems concerning this category of rights are still there. The quality of life continues to decrease and indexes of relative and structural poverty are going up. The subsistence level, i.e. the basic indicator for the whole social security system, has not been reflecting the real minimum of human needs for many years now, because it ignores many vital spending instances and is based on a product mix, non-food products and services, which has long been obsolete. Moreover, in order to determine the certain types of social security the officials go on using the index of guaranteed subsistence level, which shows the inability of the state to grant today the level below the minimum standard of living.
Things look black with this category of rights in areas of Donbas controlled by the DPR and LPR. The salaries, pensions, etc. are not paid at all, in many areas there is no supply of water, gas and electricity. The state of prisoners in correctional facilities is catastrophic: they are simply starving.
After the revolution of dignity there is a noticeable improvement in the efforts of the government to administer the cultural sphere. Thus, the Ministry of Foreign Affairs and the Ministry of Culture and trying to show in the European capitals the best examples of Ukrainian modern art by initiating artistic tours of Ukrainian performers abroad, organizing exhibitions and more. Maybe, for the first time in Ukraine there are signs of cultural policy. Although, undoubtedly, the difficult socio-economic situation in the country significantly hampers the efforts.
Observance of Laws on human rights protection
Unfortunately, the enforcement of laws relating to human rights in the period under review became very complicated. The state refused to fulfill its obligations to people even if they were confirmed by court decisions. There remain many valid legal norms regulating social guarantees, although their realization now depends on available budget funds backing the guarantees and the Cabinet of Ministers determines the amount and targeting of social assistance based on the available resources. This practice was confirmed in 2013 by two decisions of the Constitutional Court and has not changed ever since. The claims for failure to comply with laws on social security are not receivable in courts and old instructions not to execute past judgments are still valid. In terms of current military situation it is very difficult to implement these provisions on social security. To be honest, it would be advisable in this situation to distinguish the social security benefits which can be cancelled and cancel the relevant rules of Law (such as, for example, children-of-war benefits) from socio-economic rights, which should be observed in the case of relatively weak social groups. But will the new administration dare to take such unpopular steps, or it will not?
The effectiveness of state agencies
and specialized targeting protection of human rights
and fundamental freedoms
Overall, the situation remained as it was in 2010–2013: the crisis of state institutions aimed at protecting human rights, especially Law enforcement agencies and the courts, was aggravating. The enforcement of judgments, in particular, decisions of international bodies, remains a big problem. In this regard the state has not gone very far from the time of Yanukovych. The positive potential of the Criminal Procedure Code is not used properly, in fact, the militia learned to circumvent its provisions, which, according to them, keep them from their work.
There remains a significant problem of inefficiency of investigation of allegations of torture and ill-treatment by the staff of the bodies of internal affairs and penal system, or due to their inaction, acquiescence or connivance. The public prosecutor’s office is extremely ineffective performing its function of thorough, prompt and impartial investigation into these allegations. The cases of illegal use of force during the events on the Maidan in the capital on November 30, December 1, December 11 and mass murder on February 18–20 are not properly investigated yet. The kidnappings, beatings of Maidan activists in March and April in Kharkiv, Donetsk, Luhansk and other crimes, torture and murder of civilians and POWs, other crimes against their life and health, crimes related to violation of property rights have not been investigated.
The commission by separatists of heinous crimes in Donetsk and Luhansk Oblasts, which did not exist in the past in Ukraine−enforced disappearance for political reasons, out-of-court executions, arbitrary arrests and torture of hostages, capture of administrative buildings, etc. — took place by omission or acquiescence, or, worse, aid of local Law enforcers, bodies of SSU and public prosecutor’s office. Unfortunately, rather than to uphold human rights, Law enforcement agencies were often subjects of these disorders.
During this period the work of the Ombudsman was rather positive. The Secretariat of the Commissioner of the Verkhovna Rada of Ukraine continued implementation of national preventive mechanisms under the Optional Protocol to the UN Convention against torture; this mechanism gradually affects the staff’s treatment of persons held in custody. The Commissioner sought to protect those who were suffering from the actions of the separatists, in particular, she was actively involved in evacuation of orphanages out of the zone of counterterrorist operations, participated in the liberation POWs, denied lies of Russian propaganda and so on.
Was it possible to restore the violated rights in court? The experience of human rights advocacy provides many examples where the presence of a strong and well-founded legal position, professional representation of interests in court, consistency and patience a person ultimately has a better chance to defend her/his rights even despite corrupt and dependent judiciary. The information space is full of stories that tell about such incidents. However, the layer of human rights violations and unfair judgments is rather thick; therefore these successful cases get lost in it and go unnoticed by most people, and the dominant view is that it is useless to go to court.
The vast majority of human rights violations took place, among other things, due to the lack of serious constraints and mechanisms of control in the government and absence of legislative support for protection of fundamental rights and freedoms.
Therefore it is necessary, against all odds, to immediately initiate reforms to protect human rights and fundamental freedoms, in particular, to take the following steps.
1. Draft a new constitution and adjust sections on the principles of the constitutional order, human rights and fundamental freedoms, elections and referendums in accordance with international standards; insert into it the section “Civil Society”; recognize the jurisdiction of the International Criminal Court.
2. To implement reform of the criminal justice system based on the concept adopted in April 2008, including:
— To reform the Public Prosecutor’s office;
— To adopt the draft Code of criminal offenses, simultaneously change the Criminal Code and the Administrative Offences Code;
— To radically reform the militia based on respect for human rights, rule of Law, demilitarization, de-politicization and decentralization, increased accountability and transparency, close cooperation with the public and local communities, and professional training of personnel;
— To reform the Security Service and other special services;
— To reform the State Penitentiary Service, to adopt a Law on probation prepared for the second reading;
— To go on with the creation and implementation of juvenile justice.
3. To ensure effective public control over Law enforcement, in particular through the public councils, mandatory consultations with the public on these issues, annual public reporting of Security Service, Ministry of Internal Affairs and other Law enforcement agencies on observance of human rights in their activities, which should include the following information: on investigation and search operations that restrict human rights (secret searches, wiretapping and other communications control, etc.), on the number of arrests, other lawful operative and investigative activities, number of criminal proceedings and number of persons who were informed of arousing suspicion of committing crimes etc. , to create independent body (mechanism) for an effective investigation into allegations of torture by militia and State Penitentiary Service officers, provide for legislative support of re-examination by the Supreme Court of Ukraine of criminal cases for which there are reasonable doubts about the legality of sentences.
4. To finalize judicial reform ensuring the independence and accountability of judges and implementation of court decisions by the state.
5. To expand the scope of provision by the state of free legal aid and transfer the function of representing the interests of the citizen from the public prosecution office to the free legal aid system.
6. In the domain of electoral right and referendum:
— To adopt Election Code;
— To replace the existing parliamentary election system with a proportional system with open regional voting lists;
— To amend the legislation and remove restrictions for participation of political parties in the elections, in particular the restrictions concerning the time of foundation of the party;
— To lower the passing-to-parliament down to 3% of the vote;
— To adopt a new Law on national and local referendums and other forms of direct democracy, such as to provide that the authorities always consider draft decisions supported by a certain number of citizens;
— To stipulate effective recall procedure for mayor and deputies of Local Radas;
— To establish administrative responsibility of the people’s deputies in the form of public works for voting not with her/his personal card.
7. In the domain of the freedom of association:
— To cancel administrative responsibility for the activities of unregistered public associations (art. 186-5 of the Administrative Offences Code);
— To revise the tax legislation in order to provide preferences for non-profit organizations to raise funds from individuals and legal entities to carry out important social and non-profit activities.
8. In the domain of freedom of assembly:
— To cancel permitting procedure for peaceful assemblies of religious organizations (part 5 art. 21 of the Law on freedom of conscience and religious organizations);
— To develop and adopt a separate Law “On freedom of peaceful assembly” to define the duties of the authorities during the peaceful assembly;
— To generalize the court practice restricting freedom of peaceful assembly in accordance with Article 39 of the Constitution of Ukraine and Article 11 of the European Convention on Human Rights;
— To annul articles 185-1 and 185-2 of the Administrative Offences Code.
9. In the domain of freedom of expression the following steps should be taken:
— To create public television and radio under the Law on the basis of the UT-1 and National Radio Company of Ukraine with guarantees of editorial independence in accordance with international standards;
— To legally prohibit the creation of state-run media and determine the procedure of privatization of all public media through their privatization by groups, sale or liquidation;
— To bring into line with international standards and against each other the Laws “On Information”, “On Access to Public Information”, “On Personal Data Protection” and others, and then to harmonize all information legislation with these basic laws;
— To take off the books the Law “On Protection of Public Morality”;
— To take off the books the Law “On State Support of Mass Media and Social Protection of Journalists”;
— To cancel authorization procedure for state registration of the print media;
— To liquidate the State Committee for Radio and Television.
10. In the domain of social and economic rights it is necessary:
— To divide welfare payments into those identified as the realization of socio-economic rights and those resulting from occupation of certain posts or certain privileges;
— To legally determine that benefits, which were awarded according to occupied positions or a privilege may be limited depending on the economic situation in the country;
— To forbid to cut or not to provide finance implementation of socio-economic rights (e.g. dedicated funds for poor, vulnerable strata of the population, people with disabilities, etc.);
— To concentrate social policy on targeted assistance to those who need it;
— To include NGOs on the basis of equal partnership into the provision of social services.
11. In the domain of human rights the necessary steps are as follows:
— To develop and adopt a new Labor Code, the concept of which should not set the interests of the employer above the interests of the workers;
— To change the practice of business privatization without direct involvement of employees in the privatization process and without substantial property sharing by the personnel;
— To ensure the equal rights of all trade unions in the system of control over the administration of enterprises, in the development and adoption of collective agreements; to institute appropriate administrative and criminal penalties for refusal of registration and discrimination against independent unions.
— To ensure disclosure of tax reports of the deputies in Verkhovna Rada, city and oblast radas, mayors and officials belonging to the 1–3 categories of civil servants.
12. To abrogate the Law “On the Unified State Demographic Register and documents proving the citizenship of Ukraine, identity or her/his special status” and stop funding pursuant to this Act; develop new laws on the documents that identify a person and define a new procedure for registration of citizens domiciliary.
13. To conduct a real reform of property rights registration with open real estate registers, land cadaster, etc.
14. To amend the legislation intended to combat all forms of discrimination.
15. To develop and adopt a Law “On mandatory medical insurance” and implement this system in Ukraine.
16. To grant the openness and transparency of the health system by monitoring the quality and transparency of tenders for technical equipment and drugs with participation of the public.
17. To implement reforms aimed at carrying out pilot and quasi-pilot judgments of the European Court of Human Rights on Ukraine.
18. To ensure hard-and-fast execution of decisions of the UN Committee for Human Rights, UN Committee Against Torture, UN Committee on the Elimination of All Forms of Discrimination Against Women and other UN committees the terms of reference of which cover individual complaints.
19. To ratify the 3rd Additional Protocol of the UN Convention on the Rights of the Child that creates opportunities for children to submit individual complaints.
20. To ratify the UN Convention on Enforced Disappearance.
21. To combine the branch state archives of the Security Service of Ukraine, Ministry of Internal Affairs and others created before December 1, 1991 into the Archive of National Memory and include it into the system of archival institutions of Ukraine and provide access to these archives on the basis of a special Law.
Prepared by Yevhen Zakharov, Director of KHPG.
 For detailed coverage see: http://khpg.org/index.php?id=1407914802
In spoken language regional means “member of the Party of Regions” (translator’s note).
It should be noted that the command tried to establish discipline in voluntary battalions of MIA, several dozen soldiers were dismissed for misconduct, and gradually the situation changed for the better.
The authors are members of the Council Alexei Bobrov, Svetlana Gannushkina and Olga Tseitlina, Lawyer, network “Migration & Law”.