war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

The right to a fair trial

The rights of persons participating in a criminal case should be essentially enlarged

According to Article 44 of the Criminal-Procedural Code of Ukraine, an advocate is admitted to the participation in the case since the moment when the accusation is given to the suspect; when the suspect is detained, the advocate is admitted since the moment of compiling the protocol on the detainment.

This law is rather progressive compared to the previous one, when the advocate was admitted only after the completion of the investigation, when the suspected started to get acquainted with the materials of the case. Nonetheless, the law may not be left in its present form. The rights of the people, who participate in a criminal case, must be essentially enlarged.

Everyone may recollect foreign films where after the detainment by the police the suspect proudly declares something like: ‘Without the advocate I will not give you the time of the day’. On 27 June the TV program ‘Today’ made known that the Constitutional Court of Russia decided to admit advocates to the participation in a criminal case since the moment when a citizen is invited by militia or prosecutor’s office to give some testimony.

A person is at the moment neither a suspect nor an accused, but still it has the right, as in other countries, to demand the participation of his advocate in the matter. It is high time to introduce the proper changes to Article 44 of the CPC of Ukraine, otherwise rights of our citizens will be violated all the time.

A bright example of the considered situation is the criminal case on a road accident, according to Article 215 part 1 or part 2 of the CC of Ukraine.

This category of cases has many delicate spots as to the investigation. That is why an investigator very often repeatedly interrogates the guilty (or the alleged guilty) as a witness.

The suspected cannot get acquainted with the investigating officer’s conclusions in the proper time, and the investigator may arbitrarily put questions before experts with the incorrect basic data. The witness, being at the same time a future culprit, may put his own questions with other basic data or prove, for example, that the speed was quite different, or that the obstacle appeared earlier or later at the collision. The future accused may demand to summon the needed eye-witnesses, to demand to make the sketch of the road, if it is needed.

I believe that following Russia’s example the legislative power of Ukraine ought to take all necessary measures to essentially increase the rights of those citizens who are summoned as witnesses.

I am sure that such measures will drastically reduce the number of complaints against torture and other cruel measures applied by militia.

Is it justice?

It is very difficult for me to write about this case, because I cannot be impartial.

When I learned that the Kharkov oblast court agreed with the verdict pronounced a month ago in the case of Yuri N. by a district court, I was desperate. What can be done if a man is being killed in front of you? Killed without sense and without aim, as practically all is done in our unfortunate country. Come to the central square and go on a hunger strike? But the article by which Yuri is condemned is not very suitable for public demonstrations. What else can be done? To write complaints? I will, of course, but it is hopeless. First, because the judges who pronounced the verdict and who left it without changes are quite sure that they have acted humanely and justly. The article by which Yuri is accused prescribes the minimal term of five years, and Yuri got ‘only’ 3.5 years. Yuri keeps asserting that he has never committed the crime, of which he is accused. But who will believe the culprit?

Yuri got his 3.5 years after a very grave stroke that he had at the age of 30 in the autumn of 1999. Being an invalid of the second group, he could hardly survive the stroke. Yuri is an old ‘customer’ of the Kharkov Group for human rights protection, on the one hand, and of law-enforcing bodies , on the other hand. The last fact makes it extremely difficult to get sympathy from the public. But I shall risk. The Criminal-Procedural Code states that a judge must pronounce the verdict on the base of the profound internal belief. Then, perhaps, on the base of my internal belief I shall try to prove that the verdict was illegal and unjust, demonstrating immorality and cruelty characteristic of our courts.

In autumn of 1991 a lost and desperate woman turned to the Kharkov Group for human rights protection (then we had no office and she came to my home). She asked without hope if we assist in such a case as hers. We listened to her and promised to do what we can. The first Yuri’s term in prison he got for a petty theft. As many young people who were almost forcefully made to take drugs, he turned to stealing when he had no money for narcotics. So he got his first prison term. Who and how ‘assisted’ Yuri to fall from the third story and get his spine broken is unknown. Yuri did not tell it even to us, though he trusted us and told much. His mother learned about the accident not at once. What she got was an official message that her son was transferred from the colony to a Kharkov hospital. Several weeks passed before the mother, by hook or crook, learned that her son had his legs paralyzed, that his hands function inadequately and that his kidneys are harmed. Nobody wanted to operate Yuri in the prison hospital. The Kharkov Group managed to have Yuri transferred to the oblast hospital, to organize the consultations by a brilliant surgeon professor Gruntovskiy. He was successfully operated and released from the prison by the state of his health. Metallic rods were left in his spine. I describe all this in so many details to make the reader understand our attention to Yuri.

Yuri was anxious to get rid of drug addiction, he started to attend a Evangelist church. His appearance became utterly changed, but he continued to suffer from great pain, and doctors decided to make another operation. Unfortunately, they applied pain-killers, and after the operation Yuri again began to use drugs. Soon he got another term for theft — 1.5 years. I anticipate reproaches: what kind of people you, human rights protection activists, protect? I shall answer without hesitation: yes, I protect also the poor in spirit and I will continue to protect them. Yuri, in spite of his broken and complicated life is a very noble man, always ready to protect everybody. Cruelty and violence were always unacceptable to him. He was released by amnesty.

In winter 1998 we learned that Yuri, who finally stopped to take drugs, was arrested for rape. No one of us, who knew Yuri, believed in this accusation. There are crimes and felonies so untypical for a given person that they just cannot be committed. ‘I do not believe,’ said I to Yuri’s mother when she told about the development of events and many unbelievable sides of the case. Mother just waved off my comment: ‘He was twice convicted, who will believe anybody?’ But suddenly our hopes were confirmed: Yuri had been staying in prison already for half a year when Olga, the ‘victim of the rape’, came to our Group. She said that she came trying to correct what she had done. Olga was utterly confused: in her family life, in her fear before the husband, and before the investigating officer, and before her parents. We quote a passage from Olga’s statement handed to the Kharkov Group.

‘I turn to you because during the crime investigation my rights were abused and my testimony was misinterpreted by the investigator, as the result of which it appeared that my complaint to militia accused Yuri. I have no claims to him, he did not exert either physical or psychological pressure on me, and his behavior may not be interpreted as violent.’

We turned with a letter to the district court, appending Olga’s statement. These materials were added to the case. We also wrote to the district prosecutor’s office.

Leninskiy district court presided by judge Klimenko did not agree with the arguments of the prosecution and did not find anything criminal in Yuri’s behavior. According to Article 117 part 3 only one man was condemned for rape — the owner of the house where Yuri and Olga visited as guests. Yuri was released quite ill and psychologically broken. He could not understand how anyone could believe that he could rape a woman, he, who always detested such crimes.

It seemed that the court pronounced the only reasonable decision, and that all Yuri’s troubles ended. But, perhaps, the investigation officers thought about the question, who would be responsible for half a year of Yuri’s incarceration. Olga came to the investigating officer and tried to change her testimony, but nothing was changed, and her coming was not even put to a protocol. Meanwhile, N., the first rapist, handed in his cassation, and the district prosecutor protested against the verdict. As a result, the oblast court cancelled the previous decision of the district court and directed the case for the additional investigation. Yuri had no forces to survive this infinite hellish round. After one of the sessions (by the way, he was not detained, although his crime is considered grave) Yuri had a hard stroke. A doctor form the motor ambulance was astonished: people at Yuri’s age very infrequently have hard strokes. The stroke was grave and extensive, and doctors had difficulties to save Yuri’s life, and the court machine continued to turn.

Kharkov Group for human rights protection turned to Leninskiy district prosecutor’s office. We appended many documents and put many questions. How can an invalid of the second group be tried on the basis of the testimony of one person? How may one be tried if the victim changed the testimony? We received a remarkable answer, which is worth of quoting:

‘Since the victim in the course of the first court session repeatedly changed her testimony, the verdict on the cassation of the district prosecutor is cancelled on 5 January 1999 by the court collegium of criminal cases of the Kharkov oblast court, and the case is directed to the same court for the consideration with the same composition of judges.

Since 26 February 1999 the criminal case has been resumed, and now all the details of the crime are investigated, including the testimony of the victim, who continues to keep her position by changing her testimony.’

In fact, they explained to us that the fate of a man, his freedom and honor, must depend on the mood of the victim. Another procedure is possible: the prosecutor’s office must believe only that testimony which blames Yuri and which Olga gave because of the fear of her husband. Later, at the court session, she categorically rejected that in Yuri’s behavior were any features of violence.

However, the court disregarded this testimony. Yuri was brought to the court from a hospital where he stayed because of hypertension of blood. From the courtroom Yuri was taken to the preliminary prison, since the same court of Leninskiy district presided by another judge found him guilty in the group rape. He got a very short prison term — only 3.5 years, but this term may cost his life.

Is it justice?

Children’s rights

Are not you bored?

It is difficult not to agree with the most of I. Nikonova’s conclusions, but I think they need some corrections. By insisting that the power is guilty because it ‘put the Ukrainian language and culture under the conditions harsher than for the Russian’ Nikonova does not want to understand that the culture of Ukraine is created not only by ethnic Ukrainians in the Ukrainian language, but by everyone who lives and works in our country. She does not understand that all the books that are printed in Ukraine are Ukrainian books, regardless of the language. I am puzzled by the stubborn position of the Ukrainian and Russian cultural intelligentsia who do not notice each other instead of attempting to mutually enrich each other. Such attitude gives birth to clumsy decisions to introduce a 50% tax on the sale of books in the Russian language in Lviv with the further use of these funds for printing books in Ukrainian. Or, which is worse, to adopt a law to give financial privileges only for the publication of Ukrainian-language books. It is understandable that the state must support the publication of books in Ukrainian, but is it the correct way to create the market of the Ukrainian books? The result will be the opposite, which can be proved as a mathematical theorem — the book-sale business will fall into decay as a consequence of such a policy. People must not be coerced in the language sphere, and the coercion is what our ‘professional patriots’ try to do all the time, which gives birth to the natural protest of Russian-speakers and makes their ‘professional patriots’ to raise noise about the oppression of the Russian language and culture. After all, this is reflected in the political clashes. Are not you bored to step on the same rake again and again? As to me, I am tired to say obvious words that Ukraine is a many-national and many-lingual country, and that one language must not be oppressed by the other.

Lviv lesson

A Ukrainian composer Igor Bilosir has been killed in a drunken brawl in a Lviv cafй by an ethnic Russian. The reason of the quarrel was the difference in languages which the fighters spoke. The details are still not clear, and the investigation of the crime is still continuing.

I believe that mass-media, when commenting upon the murder of Igor Bilozir, and the public actions that followed the murder. somewhat shifted the focus from the reasons to less substantial details. It is a significant event that occurred in Lviv.It is a symbolic event. I do not mean the crowds that vandalized the cafй. I do not mean the behavior of those who came to the funeral of Igor Bilozir that demonstrated anti-Russian slogans. They all were consequences, cruel, uncivilized, but quite predictable. The core of the event is that for the first time in Ukraine one citizen of Ukraine killed another citizen because he could not accept the natural right of the citizen to use that language which suited him most in a public place.

It is not important whether the victim was the people’s artist of Ukraine or, say, a fitter. After all, it is not so essential whether someone was killed or remained alive in the brawl. It is not so important who started the brawl — that will be determined by the court. What is essential for all of us is the fact that nowadays in Ukraine one may be beaten for the word pronounced in one’s native language. It is unimportant for which language one will be beaten, although it is especially strange when one is beaten for the Ukrainian language in Ukraine. This event demands us, the public, to develop and to assess a strategy that will do such events impossible.

Is it accidental that a Ukrainian-speaking composer was killed in a Lviv cafй by a Russian-speaking officer? I believe that it is not accidental. There are lots of such organizations as the ‘Soyuz’ party, ‘Evrazia’, ‘Russkaya obshchina’ and many others that wave the slogans about ‘trampling’ the Russian language in Ukraine, that fight against the modest attempts to lead the Ukrainian language and culture from the post-imperial decline, regarding, perhaps, such attempts as destroying their hopes for the ‘single and inseparable’ Russia.

A cafй is also a place of propagating the Russian popular culture. As a rule, the owners of such establishments tune their radio to some local FM radio station, most of which, contrary to thew law, do not include to their programs Ukrainian songs, thus feeding their customers with samples of the Russian pop-music of the lowest kind. This fact of serving coffee under such accompaniment certainly offends many customers.

We, Ukrainians, are guilty that they began to kill us for our native tongue. With great readiness we switch to the ‘comprehensive to all’ Russian when we appear in public.

Nonetheless, it seems to me that the most guilty party of the Lviv event is the authorities, both local (in all regions of Ukraine without exception) and the central power too. Their guilt is not that they could not stop the destruction of the cafй, and not in their inability to catch the carriers of anti-Russian slogans (in which the authorities are blamed now by pro-Russian forces). Their guilt is that they, using economic obstacles, put the Ukrainian language and culture under the conditions harsher than for the Russian. They continue to do it, paying no attention to the appeal of the Ukrainian intelligentsia. The power is guilty because during a decade they did not manage to force their own bureaucrats and captains of industry to respect our too liberal laws in the language and cultural sphere.

I want to believe that the Ukrainian society will draw the proper conclusions from the Lviv lesson, that our national elite will wake up and make the state to control the national policy, that the authorities will stop to hush-hush the negative events, that the press will distinctly and honestly inform us on the arising problems. Only then we shall manage to build a civil society, and the welfare then will appear itself.

Court practices

Quality of the recruits from Kharkov and the Kharkov region in 1999

The Kharkov oblast Union of soldiers’ mothers, the Kharkov working group of the international society of human rights and the Kharkov Group for human rights protection conducted a research of the quality of the recruits from Kharkov and the Kharkov oblast in 1999.

We believe that until there exists the conscription, recruits must have the proper state of the physical and psychic health. From our experience we know that the majority of unpleasant accidents in the army happens just with the soldiers who have physical defects or deviations from the behavioral norms. Such people cannot stand the load, they become victims of the dedovshchina and often desert their units. It is they who commit suicides and suffer from accidents. Commanders of military units have to pay special attention to them, being thus distracted from their direct duties. Many of such recruits stay in hospitals, thus spending frugal finances of the army, while able-bodied soldiers have to do extra work. It is possible to continue the list of damages owing to unhealthy recruits, but they are well-known. Unfortunately, recruiting commissions pay insufficient attention to the above-listed arguments. That is why we decided to send letters to all military units, to where recruits-1999 from Kharkov and the Kharkov oblast were sent. The total number of such letters was 44.

We received ten answers. The results, as it could be expected, appeared to be distressing. All in all, in those military units, from which we got answers, serve 263 soldiers of the considered group (of the autumn conscription). What happened with them can be seen from the following table.

Got to hospitals or to medical units at once after the arrival 4 1.5% Have chronic maladies that became virulent in the first days of the service 25 9.5% Have deviations from the normal behavior, were detained by militia, used drugs 24 9.13% Related to the risk group, since they have high tendency to suicide 5 1.9% Conscripted with violations of the law (have the right to the postponement by Article 17 of the law ‘On the military duty’) 1

(has a newborn baby) 0.38%

Some recruits managed to get in the table to several lines, but totally 48 recruits out of 263 figure in the table, which means that more than 18% are quite or partially unable to pass the military service.

Unfortunately, the data are incomplete because many military commanders did not answer our questions, nevertheless this is a well-representative sample. Those commanders who did not answer our letters do not understand, perhaps, that we cooperate with them. We contact the parents of those soldiers that raise problems for their commanders, we seek and send medical cards which enable doctors to monitor the dynamics of the disease in question. We have set permanent exchange of letters with some commanders and they even became readers of our bulletin. We hope to work fruitfully with them.

During the spring conscription of 2000 the oblast recruiting commission included two representatives from the Kharkov Union of soldiers’ mothers and from the international society of human rights. This permitted us to help those who turned to us or in general had conflicts during the conscription. Our representatives N. Kriukova and M. Shutaliova worked actively and fruitfully. In particular they analyzed the course of the conscription. Their analysis showed that the operating laws on the conscription are far from being perfect. In some following issues we shall describe the situation in details.

We would like to stop this article on the optimistic note, but again we have received a message of the new accident. Private T., who was recruited from Chernivtsi on 27 April and served near Kharkov, was brutally beaten in the beginning of June and send to the Kharkov hospital. Another serviceman, private N., committed suicide by hanging.

What were the reasons and who was the guilty needs investigation.

In spring-2000 they called 2200 recruits from Kharkov and the Kharkov oblast. Who will be the next?


Human rights defence

The newspaper ‘Day’ in the framework of the project ‘Public forum’ appealed to the readers asking them to answer the following questions:

Do you know of any concrete case when civil rights were protected in Ukraine? Who assisted in the process? How realistic would it be to turn similar processes into a full-scale phenomenon?

What is the role of public organizations in the legal education of citizens and in the protection of their rights? To which degree does the state machine count with public organizations, how important is their role in the society?

Which human rights are abused in Ukraine most of all?

Violation of human rights is mainly due to the public apathy: what can activate the public interest to this problem?

Below we publish the answers of the correspondents of PL

Sergiy Fedorynchyk

Yes, I know of the cases when citizens successfully protected their rights in Ukraine. It concerns both personal rights and, so to say, collective ones. These are, for instance, the rights for secure life and healthy environment, which is guaranteed by Article 50 of the Constitution of Ukraine.

In the Sokalskiy district of the Lviv oblast the local branch of the ‘Zeleny Svit’ (abbreviated ZS, meaning ‘Green World’) managed to prohibit the distribution of poisons by agricultural aviation. The ZS of town Kreminna of the Lugansk oblast made the local authorities cancel their decision to start construction in the locality, where water was taken. The ZS of Severodonetsk and of Rubizhne stopped the project of burning unserviceable pesticides at the local plant. The ZS of Nikolaev and its sister organization in Lviv protested in court the construction of potassium terminal. The ecological center ‘Bakhmat’ together with other public organizations of Artemovsk and Kharkov made the authorities prohibit to use salt mines in Artemovsk for storing radioactive and toxic waste. Certainly, beside these victories one often observes violations of human rights where the public tried, but could not reach its goals. There are many cases when the fight takes a lot of time, and the chance to win becomes less and less.

First of all, it must be said who hinders the right protection. Most frequently state organizations and their administrators abuse human rights. Even if the initiator of abusing rights is some administrator of an enterprise, later the solution of the conflict depends on the authorities of the executive power or of the prosecutor’s office. These people do not follow the law, but some relations and interests, including corruptive ones. In such cases the public can win only if they create a chain of arguments, since separate arguments do not help. First of all, the public side must clearly understand their rights and interests, know the proper legislation, realistically assess the position of their opponents and the authorities. Then they must have great patience and courage and diligence, without which they would hardly win in court (since the majority of Ukrainian citizens are beggarly now, we do not consider the opportunity of hiring good advocates). It is the court which now more and more often becomes the place of protecting their rights by citizens. That is stipulated in Article 55 of the Constitution: ‘Human rights and freedoms are protected by court’. Although the Ukrainian court system has many drawbacks, it is in the court that a citizen has chances to prove his demands on the legal basis and, sooner or later, to achieve his goal. Public organizations and objective description of the problem in mass media can help to achieve the just decision at this stage. Court and judges still depend on the executive power, but during the autonomous existence of Ukraine a certain progress is observed. Unfortunately, most of our compatriots cannot fight for their rights through the court system. Like children they wait that the paternalistic power will solve their problems. At the same time they do not trust the power. There is a subquestion, how realistic is the transformation of this process to a large-scale one. This transformation is a very long and many-stage process. At the first stage the process would need active representatives, the public organizations, editorial boards, and international funds (it is impossible to do without them since there is no middle class in Ukraine). All these people have to work out a common strategy. This strategy must not be grounded on some pretty borrowed ideas and slogans, but on the analysis of the EXISTING PRACTICES IN UKRAINE. This analysis must be done both by the practitioners of human rights protection and sociologists, psychologists and lawyers. Public organizations — not only those that are officially called human rights protecting — must focus their activities on the practical assistance to citizens, they must increase the set of successful cases. Each such case deserves the detailed analysis that will assist to use it systematically in the human rights protection activities. I doubt the efficiency of organizations that study the theoretical aspect that propagate the human rights, but do not receive citizens to assist them. Such organizations resemble a teacher of physical training, who cannot demonstrate his pupils how to do any exercise. Several millions dollars were given by international funds to the Ukrainian lawyers foundation. For this money the foundation held many seminars and conferences, published a lot of literature, but it never did anything to assist citizens in trouble. Maybe this strategy assisted to create the human rights protection movement, but this money should rather be directed to practitioners.

The role of public organizations in the human rights protection is essential. First of all, this is a source of the moral support: the person, whose rights were abused, feels the moral support in the fight with the tremendous state machine. Secondly, public organizations, which have experienced lawyers, may grant the real juridical defense and even take part in the court session. Thirdly, public organizations can help to do the case more public and distribute the information about positive results, which encourages other citizens to protect their rights.

Theoretically, the state machine must take into consideration public organizations, but its parts — concrete officers — are not very willing to do it in practice. Here a lot depends on the principal and steady position of the public organizations.

The role of public organizations in our society is still insignificant. This is connected not only with the small number of such organizations, but also with the fact that public organizations of Ukraine are weakly interconnected; they have not created and they did not follow a moral code of their activity.

As to the rights, there exists, unfortunately, a great muddle in the minds of many our compatriots, even having higher education. Here one must distinguish between so-called ‘natural’ and ‘consumer’s’ rights. ‘Natural’ are the rights which are given to man by nature, whereas the state can only take them away. For example, this is the freedom of speech, the freedom of consciousness, the freedom of transportation. Most rights mentioned in the Universal Declaration of human rights are natural. ‘Consumer’s’ rights are those that may be granted by the society that built a well-functioning state. This is the right for education, the right for health protection, the right for work, for living accommodation and so on. Since the good has no limit, there are no unique standards for consumer’s rights, and it is possible to say about the richest state that such rights are not provided in the full measure. That is why the international human rights protection movement always focus the attention on the natural rights, whereas the Soviet propaganda paid the main attention to the consumer’s ones.

Remnants of this propaganda remain in the minds of our compatriots. They somewhat influenced a number of formulations about the consumer’s rights in the Constitution. On the background of the economic crisis, the fall of the living standard, the degradation of medical aid and education, the most abuses of human rights concern consumer’s rights, and the left opposition concentrates on it. Yet, this direction leads to populism. The world experience shows that in every country, where freedom is chosen, sausage appears automatically. And in those countries, where sausage is the top priority, it happens somehow that after a period of time there is neither sausage nor freedom. It follows that the violation of natural rights is more dangerous. And although the list of the rights abused in Ukraine is very lengthy, I believe that the most dangerous violations are those of the freedom of speech.

The limitations on the freedom of speech, which are growing in Ukraine, are at the same time the limitations on obtaining information. More and more frequently we have not full and objective, but sketchy and filtered information. It concerns not only a man in the street, but MPs, ministers and President’s administration. For example, contrary to the law ‘On information’ and Orgus convention ‘On the access of the public to information’, the national energy program of Ukraine to the year of 2010 is classified as ‘for service use only’. In this program a significant growth of atomic energy stations is planned without any serious grounding and contrary to the common sense.

As a consequence of the unofficial prohibition to print critical materials about the atomic energy in Ukraine is pulled to the adventurous increase of the Khmelnitsky and Rivne atomic stations. The documentation for this reconstruction was created in 1974 and in 1982, respectively. Violating the law ‘On using atomic energy’, the technical-economic grounding was inadequate, and has no positive assessment of ecologists and other experts, without which not only building, but financing contradicts the law. The site of the Rivne atomic station is located on the crossing of tectonic breaks and on karst grounds. The Khmelnitsky atomic station has not enough water for cooling additional reactors. An objective analysis shows that there is no need to build new power sources, but to modernize the existing ones and rationally use that energy which is produced at present.

Another important human right which is massively violated is the right to appeal. Any protection of any right suggests the use of this right. What concerns handing complaints to one instance after another until one reaches the upper levels of the power, I think that this method is the less effective. The upper level authorities have a tendency to pass down the complaints just to the very people and organizations which provoked the complaint. This directly contradicts Article 7 of the law ‘On appeals of citizens’: ‘To direct the complaints of citizens for their solution to those organs or officers, whose actions caused the complaint is forbidden’. But I do not know of any case when a state officer was punished just for the violation of this demand. A citizen has very few chances to defend his abused rights in the prosecutor’s office too. In fact, the prosecutor’s office serves the executive power. In cases, where the human rights are abused by the executive power, the workers of the prosecutor’s office may cover the abusers or even assist them. When one complains at the prosecutor’s office for some incorrect actions or passivity, the upper levels of the prosecutor’s hierarchy usually do not react.

Only successful cases of the fight for civil rights can activate the public thought. If the number of such successes grows, if people know about the citizens who successfully protected their rights in every administrative district, then much more people will start to fight. Since it is unreal to communicate personally with such victors, the role of professional and interested journalists becomes important, for they can tell about these stories to the wide public. It is important not to decorate the reality and speak also about failures. I am sure that journalists who are interested in human rights and in the superiority of the right will do it well.

Evgeniy Zakharov

According to Article 3 of the Constitution of Ukraine, the establishment and provision of human rights and freedoms is the main duty of the state. However, the Ukrainian state is unable to fulfil this duty, and it becomes a source of abusing human rights, and, since a public control over the activity of the power is absent or weak in many spheres, the violations grow in number and in scale. Yet, there are many examples of the successful protection of civil rights, especially when the violation is obvious. The probability of success grows if the people, whose rights are abused, turn to human rights protection organizations in the proper time. For example, the Kharkov Group for human rights protection processed 299 written complaints on abusing human rights in 1999 (we do not mention oral complaints, whose number was much larger). We have completed the consideration of 133 complaints; in 70 cases the positive result was achieved. It should be noted that the success depends much on the character of the abuse and on the opportunity to cooperate with the proper state bodies. This, in all cases of complaints from recruits and servicemen we have reached success, because in the most cases law was violated, and the military commandment willingly cooperated with public organizations. For example, during the past year ten people, who left their units, turned to us. Two of them had already been punished for deserting, the rest run from their units for the first time, and, following our advice, came to the commandant’s office for explaining the cause of their behavior. We investigated each case, and it was established that the men were recruited without proper medical examination. Some of them, being not able-bodied, could not execute their service and suffered from the dedovshchina practically all the time. On the basis of the collected information we sent letters to various instances (including the Supreme Court) about the two convicted, G. and N. The results are as follows: five people were demobilized from the army by the state of health, three were transferred to other units where they finished to serve without accidents, and G. and N. were released from the penitentiaries where they stayed half of their army service.

But complaints at the abuse of social and economic rights, for example, at the pay arrears are difficult to satisfy. Here a practice of not executing the court decisions has become customary. Usually it is difficult to protect the rights of the detained or condemned, since the victims are at odds with the law, while the attitude to the law-breakers becomes more and more cruel, and the officers of the penitentiaries do not support the benefit of the doubt. That is why the complaints at torture in militia, at cruel conditions of upkeep in prisons are difficult to support. To check the complaints is difficult because penitentiaries are closed state bodies. There are some positive tendencies in the work of courts which satisfy claims of citizens against state bodies more often.

There are some groups of people who more often succeed in the protection of their rights. They are well-to-do citizens able to hire high-skilled advocates. Since the number of the public organizations protection citizen’s rights are scarce (two orders of magnitude less then in the countries with ripe democracy), as well as the number of people, who are able to pay to well-skilled advocates, the few positive examples of the successful defense of rights are lost in the mass of abuses. Besides, many abuses have become system ones, they are deeply rooted in the legislation and court practices. That is why the old phrase that to protect human rights is like bailing out the sea with a spoon (some add with the spoon full of holes) remains true. There is no other way out as the increase of the number of human rights protection organizations and the growth of their quality. Their activities must improve the court system and administrative practices.

Today the court turns to an efficient human rights protecting system very slowly, and the executive power stands in the way of this process, permanently infringing the court independence. Independent experts assert that half of court decisions are unjust. The prosecutor’s system is almost hopeless, although separate cases of protecting human rights can be found. The apparatus of the ombudsperson could not until now organize any efficient work on protecting human rights. The reason is a very lax law on the ombudsperson. Recently I have met with one of the bosses of internal affairs in the Kharkov oblast, and it appeared that he never heard about the very existence of the ombudsperson. The press could attract public attention to this problem, but it turns to the topic very infrequently, and there is no mention of the ombudsperson except in specialized publications. To sum up, the success of human rights protection activities seems to become in our country not soon.

A goal of a human rights protection organization is the establishment and protection of human rights and freedoms, an efficient control over their observance on the side of the state, its bodies and officers. Human rights protection organizations should diminish the violence exerted by the state. To this end, they must work in many dimensions simultaneously: human rights protection in concrete cases (gratis for the complainer), public investigation of facts of human rights abuses by state bodies and officers, legal enlightenment, analysis of the status of human rights. It would be grand if the organizations existed which would specialize only in one key direction, such as the observance of the right for life, the defense from torture and degrading treatment, freedom of opinion, freedom of speech and free access to information and so on. However, there are very few human rights protection organizations, not more than a hundred in the country as to our estimation; it seems that the number of efficiently working is about ten. Since the situation with many aspects of human rights is not studied at all, the efficiency of their work, having such a great number of abuses, is not striking. Neither public nor state organs hardly notice the existence of these organizations. Nevertheless, the results of the activities of the existing human rights protection organizations are noticeable. they have on their account hundreds of won cases in courts, preparation of independent reports on executing international obligations by Ukraine, publication of the main documents on human rights, holding enlightenment seminars for representatives of various professions and social groups, and many other successful actions. I cannot agree with those experts who assert that only professional powerful organizations have the right to exist (see, for example, the publication ‘How one can protect himself from human rights protectors’, ‘Day’ No. 68, 2000). Certainly, the principle ‘Do not harm’ must be one of the most important, because it happens so that people, who name themselves human rights protectors, inflict harm to citizens. Certainly, it happens so that grants from international charity funds intended for human rights protection are given to organizations, which imitate the protection. Nevertheless, the more will be the number of human rights protecting organizations in Ukraine, the more they will be able to become professional, and the more frequently the state bodies and officers will have reckon with them.

During later years negative tendencies of the developments of human rights are increasing in the country. Firstly, the administrative pressure is becoming stronger, people become more defenseless and dependent on the state machinery than before, and those, who want to go in for business and tend to be economically independent, get under the press of numerous fiscal bodies, whose administrative procedures become more and more sophisticated without any economic effect. But the consequences for the development of business are deadly, so any hopes for the forthcoming improvement of the economic situation are unreal. Secondly, poverty and social inequality are growing. Not less than 15% of the population have the income below the boundary of poverty (Hr 73.7 per month), and the difference between them and 15% of the richest permanently grows and now is 5 – 6 times greater than in the Western Europe and the USA. The social and economic rights proclaimed in the international agreements and guaranteed by our Constitution (including them into the Constitution is the Soviet archness that had been boring us for decades), such as the right for dignified living standard, the right for medicaid and similar ones look nowadays as mockery. The violation of such rights is most important. The state did not determine exactly what is ‘the sufficient level of feeding, closing and living accommodation’ and that facilitates not to fulfil the listed duties, especially with respect to old people, handicapped and the families having many children. The massive multi-month pay and pension arrears from the budget, miser sums to assist the families having many children, the assistance to oncological patients equal to Hr 3.7 per year (!), closing large departments in psychic hospitals, terminating to give free medicine to chronic psychic cases and many similar phenomena give the right to say that the state threatens the right for life in a much more wider sense than by the death penalty.

Thirdly, the political struggle gradually turned into suppressing the opponents with the use of any means including the use of state bodies and law-protecting ones too. This was well demonstrated by the president election campaign, which was accompanied by the violation of political rights, unobservable in the previous years. The notorious referendum of 16 April used the same tools. The power disdain no tricks for the administrative pressure needed to guarantee the planned result. The organs of the executive power turned the election campaign and the referendum in a spectacle provoking no other feelings but humiliation and shame. Fourthly, the violation of the freedom of speech and the control over mass media, especially electronic, grows all the time. The authorities especially do not like any criticism in their address, the claims of state officers against journalists and mass media are tremendous. Local mass media are especially helpless, because they, as a rule, fully depend on the local power. Fifthly, more and more items of information are classified as containing state or other secrets, and the access to the official, even non-secret information becomes more and more difficult. This is a great danger for human rights, since only the well-informed society can execute one of its main functions — to control the activities of the state power.

Although many efforts are done in this direction, the protection from torture and degrading treatment remains an acute problem. Illegal methods are widely applied to draw a confession from a suspect; besides, mere staying in some preliminary prisons must be treated as a torture. The conditions may not be expected to improve because of the economic situation and the preservation of repressive character of courts. In spite of systematic amnesties, by the proportion of the incarcerated (453 persons per 100 thousand population) Ukraine remains one of the world leaders. This number is expected to grow since the new Criminal Code, adopted in the first reading by the Parliament, is even more cruel that the operating one.

As before, the situation with dedovshchina in the army is difficult, although the set contacts of human rights protection organizations with military units during later years partly improved the situation. It should be confessed that the Ministry of Defense and other military structures cooperate in solving conflicts connected with dedovshchina and other negative phenomena.

Upon the whole, one may assert that the general state with human rights has deteriorated. The main reason is, in my opinion, the preservation of the administrative system based on suppression and coercion that generates the social apathy and the suppressed mood in the society.

First of all, an open and wide discussion in the press and electronic mass media must be open of the problems concerning human rights and the work of the state bodies, whose duty is to protect human rights, and public human rights protection organizations. This discussion must inform the society on the successes and failures of the attempts to protect human rights; they must report on court trials concerning socially significant problems, inform on international mechanisms of human rights protection. Public hearings in the Supreme Rada on the problems of human rights with representatives of public organizations will be very desirable, if the information about this hearings is made public.

It seems important to create a special law on the activities of public human rights protection organizations. In the Ukrainian legislation such organizations are mentioned only one time — in the law ‘On appeals of citizens’. Experts of our organization created a draft of the law ‘On public (civil) control over state activities’ (this draft is published in the book ‘Freedom and state’), where the human rights protection activity is described on the normative legal level. This draft could become a basis for the development of the new law. Adopting this law would stimulate the society interest to human rights protection problems.

Aleksandr Bukalov

As far as I know, no special statistics exists about how often citizens win their cases while protecting their human rights. But I know well what happened with myself. My personal experience I accumulated while working as a journalist in a regional newspaper. I know several cases when citizens turned to court complaining of abusing their rights and managed completely or partly to succeed. Here are some of successful examples.

Citizen T. from Kerch, a father of five children, was condemned to two and half years for the fact that a public organization headed by him did not pay taxes of about Hr 1000. After a number of publications in the newspaper and subsequent appeals of the newspaper to court and prosecutor’s office, citizen T. was released. He spent less than a year in a colony. By a decision of the court his punishment was exchanged for another, not connected with incarceration.

Ms V. from a small settlement in the Donbass was detained by militia, without due reasons, as she considered. She turned to court with the claim against the militia precinct. The court decided to make the militia to pay her a fine for the moral damage in the sum of several thousand hrivnias. It is true that she could not get the money for the long time because of the empty budget.

A young man from the town of Stakhanov took part in a brawl, in which a man was killed. He was detained and battered to extract confession. The court convicted him to 12 years of incarceration. The intervention of journalists resulted in the reduction of his term to six year, but the court did not consider his beating by militia.

I would like to point out that positive results were achieved in these cases not so much by publications in the newspaper, but owing to other actions of the journalists: turning to court instances or to prosecutor’s offices, with sending their requests, copies of the publications and so on.

I believe that there occurred cases when citizens protected their rights by themselves, without any external assistance. But from my own experience I know of the cases when mass media helped the victims.

If to look more closely, then one can see something common in all such cases. This common feature is that the success came to those citizens, who were persistent in their fight for justice, who had courage, time and money to protect their rights. When any of the three factors is absent, the success becomes problematic. Alas, nothing can be done here, it seems to be a law of nature. Mainly, the injustice is based on the fright of those, whose rights are abused, on fright and on ignorance.

It is true that sometimes the fright saves the victim. It is unreasonable to try to reconstruct justice in an absolutely hopeless case. The problem partly consists of the ability to assess if one has sufficient forces, belief and hope to defend justice.

Last year a tragic case occurred in Donetsk. It began when a militiaman detained at a discotheque a girl-student although she was sober and behaved correctly. It was just a way of chiseling money: someone is detained and the victim’s friends collect money for the ‘ransom’. Many victims were patient, but this girl decided to protect her dignity. When being detained, she uttered the phrase: ‘Show your documents’. This enraged the militiamen and they took the girl to the precinct. In some time she was found hanged on her own tights. The court came to the conclusion that she was led to suicide. Unfortunately, one must confess that sometimes even timid attempts to protect one’s rights may have tragic consequences. That is why the degree of risk one is ready to bear for protecting one’s rights — is an individual choice.

And this choice is to a certain degree related to the level of juridical education of citizens, which their knowledge of what rights they have and what ways of the protection they can use. That is why the demand is great nowadays for the brochures which give advice how to behave during the arrest and which rights citizens have during the trial. The role of NGOs in distributing such information is very great, it is they who have opportunities and resources gratis or almost gratis to fulfil this immense work, for which the state never finds financing, which is not strange because the state does not seek financing. While solving various conflicts it is essential how just is the position of the claimant, what he wishes more: reconstruction of the abused rights or revenge. Rather frequently the latter goal becomes the dominating one and a situation arises which is near to that when the claimant almost becomes the abuser of right.

When the population is well-informed about the successful protection of rights, this is very important . A miner from Donetsk, S., due to a professional disease had to drop his work in 1993. The mine had to pay him 15 average wages, what the mine certainly did not do. Last year S. handed a claim to court. The mine agreed to pay him , but the size of this sum had to be such as in 1993, without accounting for the inflation. Now this sum makes less than one average monthly pay, i. e. it is 20 – 30 times less than it should be. The administration of the mine hinted to S. that he can get the required sum, after giving a half of it ‘to the needed people’. S. did not agree. So the court decided that S. had to get the beggarly compensation. When S. exclaimed: ‘This is an unjust decision!’, the judge cynically answered: ‘If we had lived in a law-abiding state, then the decision would have been just, but we live in a different country. You may complain to the oblast court’. The oblast court assessed the decision as unjust and returned the case to the same district court — for a new consideration. The district court did not react for half a year, since the just decision will create a critical situation for the mine, because the precedent will make hundreds of suitors to demand the same compensation.

The fact that there exist examples of cases being won by citizens remains someone’s personal experience, and it is very difficult to multiply this experience. Just in this place the role of NGOs and mass media becomes important. Fancy that S. will after all manage to win his case and that will be told by a dozen of local newspapers. I think that the effect would be noticeable. Certainly, to permit this event happen, we need the positive decision of the court and preparedness of regional mass media to tell about the experience, although they may expect sanctions. It would be grand, if some NGO would monitor such a case and prepare a leaflet with the description of the details, and then distribute this leaflet to the Donbass mines. We may only dream about such a turn of events since the level of dependence of mass media is too large. But one must try. In Ukraine, I believe, there exist such mass media and such NGOs capable to bring to public attention some typical cases.

It should be noted that there exist serious obstacles for the official distribution of the similar experience. They exist not due to the engagement of the mass media and not because public organizations are inactive. The main reason is the high level of the social apathy of the majority of citizens, their aggressive indifference. As a rule, such people are quite indifferent to the violation of the rights of other people. They start to speak about the abused rights and the necessity of their protection only when their personal rights are concerned.

Aleksey Svetikov, Sergey Kamyshan

‘Zeleny Svit’ (ZS, ‘Green World’) was formed in 1988 and has been protecting human rights for 12 years. We protect the environment, and to live in a healthy environment is one of the fundamental rights of man. Since 1997 the main component of our activities became legal defense of citizens whose rights were violated. Our legal aid did not consist only of consultations and appeals to authorities; it included the direct participation in the court sessions in the capacity of a public organization. During the last three years our representatives participated in more than 100 court sessions, in 28 administrative, civil and criminal trials. In 15 trials our adversaries were the town executive committee, the mayor or militia.

In 1999 ZS initiated the creation of the Lugansk oblast organization named the Committee of electors of Ukraine, which has become now the leading human rights protection organization of the Lugansk oblast. In the framework of this Committee two public reception points work in Severodonetsk and Lugansk. For the first five months of the current year 67 persons were assisted in these centers. And certainly these cases were not directed against neighbors — they concerned human rights abused by the state or the relations between public organizations and state bodies. In June we plan to open two more reception centers in Lisichansk and Pervomaysk. We had many successes, both in well-known loud cases and in smaller cases of separate citizens. Our experience enables us to affirm that the existing in Ukraine legal field enables the public to positively decide questions connected with the protection of citizens’ rights. However, most cases last too long and are not supported by other citizens. That is why helpless individuals seldom have enough patience to bring their cases to the successful end. Most frequently they confine themselves to compromises in the form of peaceful agreement. By the way, the negative attitude of the population to the legal defense and to members of human rights protection organizations in our post-totalitarian state is easily explainable, if one recollects that rights of an individual need to be protected usually when they collide with the interests a larger number of individuals (people or a territorial community). Protection of human rights is almost always protection of minority rights, and the work of human rights protectors is often met with such questions as: ‘Why must we for the sake of some irresponsible citizens suffer, if we are in majority?’

Here are some examples of successful cases in the sphere of human rights protection: on 12 March 1999 the town executive committee took two decisions, according to which the people who have the privilege of free town transportation could use their privilege only during 4 hours per day. In all other time those people, who include the handicapped, veterans who took part in battles, Chernobyl rescuers and the like, had to pay their fares like all others. After this decision was taken, the privileged groups of people, including invalids on crutches, were thrown bodily out of trolleybuses. What was astonishing, this openly illegal decision did not raise protest of 40 thousand veterans from Severodonetsk. Only one of them handed a complaint to the court and fought for his rights during a year. His efforts (with our assistance), were successful — in December 1999 the town court declared the decision of the town authorities illegal and demanded to cancel it. Now veterans again use the town transport gratis. But another part of the protest, according to which the town authorities had to pay for the moral damage, was not satisfied by the court. Now we prepare documents for sending to the Strasbourg court. This case had another consequence: in February of this year more than 600 persons, mainly war veterans, held a meeting with the goal to initiate a local referendum on the pre-term retirement of the town mayor and the town council guilty of violating the legal rights of citizens. Surely, the town mayor did not register the meeting, the initiative group elected by this meeting and the complaint. Now his refusal of registration is directed to the court with the assistance of our group.

Here is another example. In January of the current year we assisted to formulate a claim to the court of incorrect actions of the secretary of Severodonetsk town council N. G. Taldonov, who refused in writing a deputy of the town council S. A. Gulenko (the leader of the opposition in the council) the access to information on the council activities. In May the claim was satisfied, and now we are preparing the claim on recompensing the moral damage.

Here is an example of out-of-court protection of rights: on 5 May 1997 the Prime-Minister P. Lazarenko signed Order No. 245-p, which proposed to carry out chemical identification, packaging and labeling of the prohibited to use pesticides stored in the village of Olshanitsa of the Kyiv oblast and then to send them for destruction to the firm ‘Krasitel’ in the town of Rubezhnoye that is situated not far from Severodonetsk. In fact, this was a beginning of a greater plan of creating in Rubezhnoye a center for destruction of dangerous chemical substances that had to be transported to Rubezhnoye from entire Ukraine. In summer 1998 the installation for burning the dangerous substances was created. Local mass media and public organizations explained that the planned process in the thickly populated district is dangerous. The local organizations of ZS explained to citizens that this is a way of abusing their right to live in a healthy environment. They cooperated with the local town council and with the local MP Yu.Ya. Ioffe. As a result, at first the prosecutor’s office ruled out the order to stop the works. Yu. Ioffe complained also to the General Prosecutor’s office. Finally the central government refused from the realization of the project.

Nonetheless, the protection of human rights is mainly the task of the court. Our experience shows that we took part in 19 cases, and 14 of them were won, four ended in peaceful agreements, and one was lost with two cassations. Such score is possible to get only having a high-skilled advocate. If you have no advocate, you will get no assistance from the state structures and, as a rule, from advocates, who have to earn their living.

We consider it very important for the future of Ukraine to decrease the antagonism between the state and public organizations, especially human rights protection organizations. The latter protect the abused citizens, so, by their status, they oppose the state. The both parts of this conflict have no wisdom to defend their positions with dignity. The duty of mass media is partly to damp this war by way of objective elucidation. This will help the population too: they will see that their rights can be protected.

Roman Romanov

If to speak about separate cases, one may find successful examples even in societies where status of human rights is the lowest. Certainly, one observes such cases frequently enough even in Ukraine. The first condition enabling one to protect his rights is his will and readiness to use all tools of the protection which exist at present in Ukraine. There are people, who are capable to do much without assistance, but certainly their number is very small. In our society there exist various institutes whose goal is to assist a victim of violations of human rights. They are the court system, human rights protection bodies, advocates, the Supreme Rada with its committees and other bodies, including the service of the ombudsperson, public organizations for human rights protection and, perhaps, mass media. The first two institutes are kept for the account of tax payers and they play an important role in protecting human rights, in spite of well-grounded and numerous reproaches. Unfortunately, our law-protecting system is the source of protection of human rights and one of the most energetic violators of these rights. The court system, certainly, is changing, but the changes occur very slowly, and very often judges take their decisions not according to the law and their inner convictions, but under the conditions when threats of the state officers, money and the like determine their decisions. Our courts are still regarded by the public as a part of the punishment machinery, not like a body whose duty is to solve conflicts appearing in the society. Meanwhile, the number of turning to courts per year grows, which testifies of changing the above-mentioned stereotype.

Advocates, in my opinion, survive today not the best time; they inadequately satisfy the function fixed with them in our society, although they are the people, whose role is the most significant in protecting the rights. The most demanded nowadays are the advocates who formerly worked in law-enforcing bodies. For a good fee they use their former ties, they can radically change the situation to the benefit of their clients without demonstrating their professional mastership. This shameful practice is, in my opinion, a tremendous threat to the efficiency of human rights protection.

The parliamentary control in any society is quite necessary; it really is able to guarantee the protection of rights in many cases. The figurehead in this activity certainly must be the ombudsperson. Besides, every MP must execute this social function, first in the relation to his voters. As to public organizations, employed in human rights protection — this is a reaction of the society to the inadequate protection of human rights. Lately a considerable number of such organizations has been created. There are different opinions as to the efficiency of such organizations. But even if the efficiency is low, I believe that during recent years they underwent great changes. There exist in Ukraine NGOs on human rights protection that work on a very good level, have minimal conditions and are able to fulfil significant social functions. Such organizations exist separately, they search financing and that is why they may not be regarded as a threat on the public or state level. Although the existing laws on unions of citizens do not give them any rightful place (it is considered that they may protect the rights of their own members exclusively), they protect other people. Last, but not least, mass media must also play an active role, similar to that of the public human rights protection organizations. The press is a watchdog of democracy and it must bark whenever a threat to democracy and human rights appears. It is very important if they are able to wake with this barking a sleeping and unsuspecting society. To do this is not simple. When the masses wake up, then it will be possible to speak about the efficiency of the system of protecting human rights in the entire unity of its elements.

PL commentary.We are not surprised that representatives of powerful right protecting organizations determine the total abuses of human rights in Ukraine differently, and that their attitude to their opportunities in protecting human rights is rather optimistic. Their position is rather well-grounded by their own experience. Firstly, all represented organizations had been protecting human rights practically, secondly, they participate in the human rights protecting network that unites many human rights protection organizations, which assist each other in solving common problems. But they work in different manners.

On the one hand, the situation with human rights in Ukraine is deteriorated in many directions, on the other hand, powerful organizations and well-skilled advocates more frequently successfully assist to those, who turned to such organizations. Thus, there exist in the country, if one may say so, well-trodden paths through a bog. Here is an example. The Kharkov Group for human rights protection receives more complaints not from the Kharkov oblast, but from little towns of the Donetsk and Lugansk oblasts, desperate letters with complaints at the brutal violation of human rights. On the other hand, the most optimistic authors of this set of notes are the authors from Severodonetsk. So we see that there remains much work for human rights protectors in Severodonetsk as well. Usually this need to be assisted, sometimes is realized in the appearance of small groups. The human rights protection work is hard and the apathy of the population is great, so it is difficult to predict where new groups will appear. The newspaper ‘Day’ set a good example, having printed the answers of members of human rights protection organizations, which prefer practical cases. All who answered the questionnaire of the ‘Day’ want to expand the movement, believing that it is the most important condition of the civil society. Only a well-ramified and flexible structure may serve as an efficient tool against arbitrary actions of the authorities on the post-Soviet space of modern Ukraine.

When the Kharkov Union of soldiers’ mothers cooperates with Kharkov Group for human rights protection, or turns for help to the Sevastopol human rights protection group and personally to R. Romanov, or to human rights protecting journalists from Lviv — this is not only a passing element of work, but the main condition of success.

Unfortunately, all newspapers except the elitarian ‘Day’ pay little attention to human rights protection, and the cooperation of journalists and human rights protectors is, as a rule, accidental. Not only the development of human rights protection movement, but also a close and permanent cooperation with mass media may help our society. This is an obvious conclusion that can be drawn after reading the answers to the questionnaire of ‘Day’.

We invite our readers to send their answers to the questionnaire. We think that this is a fruitful discussion that must be continued.

I. Sukhorukova


A conference on the ‘Protection of constitutional rights of servicemen: international and national experience’

The Ministry of Defense of Ukraine and the International society for human rights on 20 – 21 June held in Kyiv the international conference ‘Protection of constitutional rights of servicemen: international and national experience’. Many well-known international and foreign experts took part in this conference: the main military inspector of Switzerland Dieter Weber, the main military judge of the US appellation court Eugene Sullivan, the main military judge of the Great Britain James Rung and many other outstanding barristers.

The central apparatus of the Ministry of Defense of Ukraine was represented by the general-lieutenant of justice V. I. Kravchenko, the Supreme Rada was represented by an expert from the research directorate O. P. Petrichenko. The conference considered the questions on the legal provision of constitutional rights of servicemen, the role of military prosecutors and judges in the practical protection of these rights. International experts told how these rights are protected in Switzerland, the USA and the UK.

The participants of the conference learned that in Switzerland the military service consists of 15 weeks of training, followed by two weeks of training each year. They have the same problems as in Ukraine: dodging the service and some kind of dedovshchina. They have military prosecutor’s offices and courts that consider all crimes that are committed by servicemen. But disciplinary punishments is the prerogative of commanders of military units. Switzerland has a military code that considers military crimes, but essentially civil crimes (crimes against one’s family, bankruptcy, etc.) are considered in civil criminal code, not in a military one. Since 1980 the unique system of military court has been introduced in the country. A case against serviceman is started by the commander of the military unit. It happens that the commander refuses to start the procedure of accusation, then the procedure may be started by the military prosecutor. Since 1991 they have a law about alternative service determined by personal beliefs. There exists a military appellation code. They have in Switzerland units of military police, which is staffed with policemen who pass their military service. A military policemen (as well as a civil one) have the right to detain a person for 12 hours. To keep a suspect longer they must have the decision of the court.

In 1999 military courts of Switzerland considered about 1450 cases. The most common (70%) accusation is dodging military service. In Switzerland they have 14 military courts of the first instance and 3 appellation courts.

The main military judge of the Great Britain James Rung said: ‘If you have an army, you will certainly have problems with the servicemen’s rights. A military may not have the same volume of rights as a civilian’. Ten years passed since the Great Britain started to call to the army only volunteers. They have military police, military prosecutor’s office, military courts, field court martials. Insignificant felonies are punished by military commanders. As such a punishment a commander may use a detainment up to 28 days, and, in especially dangerous cases, up to 60 days. But a serviceman in this case has a right to complain to a court that may cancel or diminish the punishment. A commander may punish a serviceman only for his military offences. Such offences as theft, brawls, drug-taking and alike committed by servicemen must be considered by military courts. Judges of military courts are military, but the control over the military courts is done by civilians. The court sessions are open. One of the most frequently used punishments is a money fine that is paid by a serviceman from his wages. Servicemen who suffered from their variant of dedovshchina have to turn to the military court or to military police; both of them are independent of the commander of the unit. The military police have the right to arrest people and carry out investigation.

Eugene Sullivan’s report was also informative and interesting. He said that American servicemen are limited in their rights compared to the civilian population. By his assessment, they have about 90% of the rights. For example, what concerns the freedom of transportation, am American officer has not the right to go for his vacation to the North Korea, Iraq and Cuba. About the military legislation one can use the words of a well-known American advocate Beily: ’If you are not guilty, then you should go to a military court, where you will be able to prove your innocence easily. But if you have committed a crime, then go to a civil court, since there, with the aid of a good advocate you will go dry from the water’. The military court procedure is like that in a civil court. The differences are few, for example, in a civil court the jury counts 12 persons, whereas in a military court only 5 – 10. Usually the reason is that in the places of dislocation, especially overseas, it is difficult to find the proper number of jurors. The speaker pointed out that the Ukrainian legislation demands an ideal person to become a prosecutor. The armed forces of the USA have military police (about 30 thousand).

V. V. Bondarev, a judge of the military collegium of the Supreme Court of Ukraine, told that Ukraine has 28 military courts with the rights of district courts and four courts with the rights of the oblast ones. These courts consider the cases of the same kind as foreign ones plus some cases that are typical for Ukraine — about pay arrears or about promised but not given living accommodation. What concerns Constitutional rights, that is the task of the Supreme Court that considers according to Article 32 of the Constitution the cases of protection of honor and dignity. So, the Supreme Court considered the case of colonel-major Kotsiuba vs. the Ministry of Defense. The former was driven from the army for a road accident in his unit, of which the colonel-major was quite innocent. The colonel-major won the case and was restored in the army. In general Bondarev’s report resembled jubilee reports of the Soviet times: our legislation is without drawbacks, our judges are crystal clear and our servicemen are guilty themselves if their rights are abused. It is confirmed by an anonymous questioning of servicemen about dedovshchina. It appeared that 80% of those, who suffered from dedovshchina, never complained.

There were many other interesting materials, especially the draft of the law ‘On creating military police’. We hope that soon the materials of the conference will be published and all shall be able to study them.

Point of view

What is our memory?

I live and work in Kharkov that, during the entire course of its history, was an outstanding center of the Ukrainian culture. Many brilliant personalities: scientists, artists, writers, actors linked their lives with Kharkov. These people, not always in blood, but in their mentality were genuine sons and daughters of Ukraine. In spite of the frantic resistance of the empire they created the Ukrainian culture of the top quality. I shall mention only such writers as O. Gonchar, I. Bagrytskiy, G. Tiutiunnik, such linguists as B. Grynchenko and O. Potebnia, such poets as P. Tychyna and V. Sosiura, such producer as L. Kurbas, such historian as D. Bagaliy, such architect as V. Krychevskiy, such painter as S. Vasylkivskiy, such a maecenas as Alchevskiy. Not a smaller constellation we have among natural sciences. Imperial and post-imperial leaders of ours tried to wipe out the memory of the listed personalities. So Kharkovites have many people to recollect in order to restore the historical justice and their self-esteem. Yet, we understand that now, under the existing economic conditions, it is not the proper time to erect monuments to our outstanding compatriots or hang numerous memorial plates on the notorious KGB headquarters to commemorate people who had been tortured in this building. We agree to wait until the economic conditions improve.

Meanwhile, our local power, which always refers to the shortage of the budget, wastes money to commemorate those who never had relations with our city or did not like the Ukrainian people. An example is granted by marshal Zhukov, whose signature was put under the order of 1944 to deport from Ukraine all Ukrainians who happened to be under the German occupation. Fortunately this order appeared to be unrealizable because of the lack of railway trucks. Nonetheless, a monument to marshal Zhukov was erected already on the timers of the independent Ukraine, and a subway station was renamed in his honor. The authorities found finances for this and for a new caprice — erection of the monument to… Lomonosov.

Well, this ‘self-made scientist’ learned in Ukraine, but in Kyiv, not in Kharkov. Why shall we waste our money? It would be much more reasonable and cheaper to put memorial plates on the walls of Kharkov National University and Kharkov Polytechnic University to commemorate outstanding professionals. The same should be done on the ‘Writers’ House’. But there is no money for this in the city budget.

Analyzing monumental-memorial sympathies of the Kharkov authorities one easily comes to the sad conclusion: the selection of candidates for commemorating is done according to their belonging to imperial structures and the Russian culture. Why? The answer may be single: either to feed in Kharkovites the complex of provinciality or to make them remember about the ‘single and inseparable Russia’. The goal is not noble and not safe since it creates in a part of the society the illusion of being able to get back under the imperial yoke. The other part of the public will never agree with such a destiny, so we may leave the state of the public piece of which we are proud today.

I believe that the public of our city must require from the authorities to stop wasting money and erect monuments in honor of the persons and events unconnected with our city. When the city budget, after fulfilling other, more acute, demands, will enable us to spend money for commemorating, then the objects of commemoration should be selected first of all among persons and events connected with Kharkov. And in no case those who acted to the detriment of Ukraine should become the objects.

PL commentary. How well it were if the Kharkov authorities commemorated only Lomonosov! In spite of all talks about multiple deficits in the city budget the authorities decided (‘by the request of labor collectives’, which, by the way, do not get wages for several months) to rename the subway station ‘Industrialnaya’ (‘Industrial’) in honor of Grigoriy Vashchenko, the first secretary of the communist party of Kharkov in the 70s.

Fancy that in the modern Germany a subway station were called by the name of Goering or some local gauleiter. Meanwhile, because of the deficit of the local budget the medical aid to psychic cases is reduced and the patients are dispersed to their homes.

Until our deputies and authorities live mentally in the red past, the hopes for future are vain.

“Prava Ludiny” (human rights) monthly bulletin, 2000, #07