“Prava Ludiny” (human rights) monthly bulletin, 2001, #03
Results of the poll about the social-economic situation in various regions of Ukraine Ukrainian politics: political technologies overrule the right The office of students brotherhood vandalized and robbed Information from the public committee ‘For truth! Letter of Andrey Ishchenko Protest actions of the opposition and reaction of the authorities The right to a fair trial
Frightful stories from the present day Kyiv GULAG Humanization of criminal-procedural legislation: a long step forward Appeal to advocates of the Dnepropetrovsk oblast In a law-abiding society advocates play an important role… And what about Ukraine? Cop on duty as an interpreter of the Constitution Freedom of expression
The public committee ‘For truth! expressed its alarm about the freedom of speech in Odessa The authorities of the Nikolayev oblast started the new stage of fighting the freedom of speech An appeal of Kharkov journalists about Dmytro Shurkhals arrest 15 days of arrest to a journalist On refugees
Illegal and brutal actions by militia are going on Army
Commentary to the resolution of the Supreme Court of Ukraine No. 05-3342 св 00 of 18 September 2000 Resolution of the Supreme Court of Ukraine No. 05-3342 св 00 of 18 September 2000 Point of view
When would you agree to become an executioner?
Results of the poll about the social-economic situation in various regions of Ukraine
All is going well, one can exist, %
All is not is so well, as one would wish, but I overcome the difficulties, %
The life is difficult but bearable, %
It is impossible to endure our state any more, %
Cannot think of a definite answer, %
City of Kyiv
The poll results quoted below demonstrate the exchange of priorities. Now, first of all, the population is interested in health care. This fact creates benevolent psychological conditions for reforming the system of health care. The authorities must hurry and develop an efficient program for the employment of different layers of the population and creating jobs.
Which problems must be solved by the Ukrainian government first of all, according to the opinions of the population, %
Pay and pensions arrears
Aid to the poorest
Living accommodation problems
Dignified standard of living
Separation of the society into the poor and the rich
Weakness of the state power
Fooling of depositors
Science and culture
Re-union of Ukraine with Russia and other CIS countries
Absence of electricity and central heating
Domination of imported goods
Privatization of land
Crisis of morals
Integration of Ukraine into Europe
Ousting of Russian language
Fighting efficiency of the army
Inclusion into the NATO
Slow expansion of Ukrainian language
Privatization of large enterprises
Threats to the territorial integrity of Ukraine
Weekly ‘Politika i kultura, No. 10 (93)
Ukrainian politics: political technologies overrule the right
Some time before politicians trusted on the public the so-called Constitutional Treaty, which in the final count was signed, and for a certain time it became the juridical fixation of the political compromise. But it could not serve a greater role. Soon various political forces began, when it was profitable for them, refer to different parts of this document, in other cases they preferred to refer to the Ukrainian Constitution of 1978 that at that time was still officially operative. As a result, the Constitutional Treaty could not play the role that was expected, and only postponed the development and adoption of the new Constitution. Because of this everybody suffered: Ukrainian citizens and all our society, for important intellectual forces were dragged into endless discussions on the main positions of the Treaty and then the Basic Law instead of developing the needed codes and other legal acts. The precious time was hopelessly wasted.
This destiny may await the ‘political agreement (or ‘political memorandum) that is being prepared by the working group consisting of MPs and representatives of the government. The obvious utopianism of the ‘political agreement is confirmed by the facts that first, signing it directly contradicts the Ukrainian Constitution and secondly, its authors support incompatible views concerning not only its content, but also its subject, conditions and procedure of its signing. One must not be a prophet to predict the further development of events. Even if the agreement were successfully signed soon, the problem of its realization would arise. ‘Political bargaining will begin among various political parties and the Prime-Minister for the portfolios in the government and in local executive bodies (which contradicts the Ukrainian Constitution). Certainly, the Ukrainian President will not stand aside in these squabbles. All this may last many months. In any case the so-called ‘coalition government will be formed not before the midsummer (this is an optimistic forecast) or even the autumn. As is known, the next election to the Parliament will be held in March 2002, and the new composition of the Parliament will regard the ‘political agreement as non-existent either legally or morally. Thus no time in fact remains for the constructive work of the government. A rhetoric question appears: what is the sense of signing this agreement and creating the ‘coalition government? Will it raise the living standard of Ukrainian citizens, or will it provide the support by the government of the planned election campaign?
The actions of creating the so-called ‘permanent parliamentary majority developed according to a similar scenario. This question, allegedly by peoples initiative, was included into the all-Ukrainian referendum of 16 April 2000. The question what the term ‘permanent parliamentary majority is still open not only for politicians, who insistently appeal to create this majority, but also to scholars, who study such problems. Basing on the text of the Ukrainian Constitution it is possible to speak at least about three ways of creating such parliamentary majority: a) simple (226 MPs) – Articles 91, 84, 87, Part 2 Article 111); b) two kinds of the qualified majority: 2/3 of the constitutional composition of the Parliament (i.e. 300 MPs) – Articles 20, 155, 156, and 3/4 of the composition (i.e. 337.5 MPs) – Part 5 Article 111. By the way, as to the latter kind of the parliamentary majority this concept is unsatisfactory not only juridically, but as a text, which is a clumsy creation of peoples deputies.
The theoretical justification of the necessity to from the parliamentary majority and the attempts to ‘tie it with operating in Ukraine constitutional model (as well as other questions of the all-Ukrainian referendum and their so-called ‘implementation to the Constitution of Ukraine) served as an occupation for not only the overwhelming majority of MPs, political figures, state authorities, but also for the noticeable number of state officers and lawyers, which diverted them from their direct duties. Certainly, it would be much more useful if they all directed their energy to the preparation of the necessary legal base for efficient reforms (adoption of codes and laws, liberalization of the tax system, implementation of the administrative reform, etc.). That is why, as in all recent years, the government had to prepare the draft of the state budget on the same obsolete tax base, while more than 90% of the Ukrainian population stay on the wrong side of the poverty line (according to the data quoted by President Kuchma).
Besides, the parliamentary majority cannot be created artificially. It may appear in the Parliament only as a result of an election. No agreements or voluntary obligations taken by individual MPs or fractions to join the majority may not have any juridical consequences. Likewise, in any moment these MPs or fractions may repudiate from the cooperation with the majority. That is why the political discussion about the creation of the so-called ‘permanent parliamentary majority contrary to the election results, as well as any efforts to create such a majority have no prospects, while the present Constitution operates. From this standpoint the declaration of the head of the state about his efforts to create the parliamentary majority looks somewhat peculiar, since the Constitution of Ukraine does not stipulate such power for the President. Moreover, the Ukrainian President, as well as any other state officer or state organ, has to act according to Part 2 Article 19 of the Basic Law: ‘only on the base, within his power and in the way stipulated by the Constitution and Ukrainian laws. The sense of the constitutional division of powers is the principle that ant branch of power may not interfere with the functions of another branch or take upon itself its duties. In which way can the head of the state influence the operation of the only law-creating organ? First of all, by using his right to veto laws adopted by the Parliament (for example, if the vetoed law, in the Presidents opinion, restricts the rights of man and citizen or contradicts the Basic Law), by suggesting the Parliament to adopt drafts of laws, codes and other legal acts, by proclaiming some laws urgent, which will oblige the Supreme Rada to consider these laws out of turn. Yet, forming or even any influence upon forming the parliamentary majority on the side of the head of the state is outside his constitutional powers. According to the present constitutional model, the parliamentary majority must be situational, hence temporary. The very attempt to create a majority contradicts Part 2 Article 80 of the Ukrainian Constitution that guarantees the right of an MP to express freely and to defend his own opinion and to vote correspondingly. That is why the attempt to make the Parliament create a majority restricts the constitutional status of peoples deputies. Moreover, a question arises: what is the meaning for an MP of belonging to the parliamentary majority? If an MP is forced to vote in such a way, as it is demanded by the majority coordinator, then it is not democracy any more. Yet, if an MP has the right to vote according to his opinion (according to his consciousness, convictions, experience and professional knowledge), as it is stipulated by the Constitution, then there the parliamentary majority would stop to have sense.
At last, the most principal. The creation of the coalition government is typical only for a parliamentary republic or a parliamentary monarchy under the conditions that not a single party or block have got no majority in the Parliament as a result of the election. In such countries the government is formed by the political party, which got the majority of votes. In this case one may speak about the responsibility of this party and the government formed by it for the results of the activities of the latter. ‘The coalition government, as a well-known Russian lawyer V. Chirkin wrote, ‘is created in parliamentary monarchies and republics, when the places in the Parliament are distributed among various parties. To from a government in a dual monarchy or presidential republic, where the composition of the government head is appointed by the head of the state only, the distribution of political forces in the Parliament is juridical meaningless. Although the head of the state may account for the distribution of parties in the Parliament (and it is frequently done in modern conditions) such government cannot be called a coalition one. The sense of the latter is how a party in the Parliament may win the vote of confidence without having the majority. For this they must provide the support of MPs of several parties from the parliamentary majority. Such a situation is typical for Italy (in the last decades), for Japan (since 1993), for Belgium and the Netherlands, where all the parties are small, and none of them is dominating (V. Chirkin, ‘Fundamentals of the comparative state studies, Moscow, ‘Artikul 1997, pp. 264-265).
Today, according to the operating Constitution, Ukraine is a presidential-parliamentary republic, not a parliamentary one. So, the demand addressed to the Prime-Minister to create the coalition government is unconstitutional, since the Ukrainian Constitution does not contain any criteria, which may be used by the head of the state and the Prime-Minister in the process of forming the personal composition of the government. This means that they have no duty to consult with MPs and may decide this question according to their own opinion. That is how the Prime-Minister may choose a candidate, and the President has the right either to confirm this candidate or to reject him. This certainly does not prevent to have consultations between the head of the state and the head of the government. So, according to the operating Constitution, the participation of the Parliament in forming the government is non-existing. This is the very constitutional model, which was directly introduced by the present supporters of creating the coalition government.
The situation, which appears today as to the problem of creating the coalition government, resembles very much the political discussions (which were rather insistently pressed upon the society by certain political forces in the autumn of 2000) about the joint responsibility of the Parliament and government for the state of affairs in the country and the reforms. Then the subjects of the political process appeared to have enough common sense to understand the absurdity of such ideas. It is not surprising, since the Ukrainian Constitution does not stipulate such a responsibility at all. According to the operating constitutional model the Parliament has the right to agree with the Presidents candidature for the Prime-Minister, and has no right to participate in the forming of the government. That is why the Parliament cannot be responsible for the actions of the government. The Parliament has its own work to do, mainly in the sphere of creating laws – the convenient legal base for the efficient work of the government. We mainly mean the Law on the Cabinet of Ministers of Ukraine, Civil, Tax and other codes. It is the absence of these laws that brakes social and economic development of Ukraine, and not artificial problems like ‘the permanent parliamentary majority, ‘the coalition government, ‘the joint responsibility of the Parliament and government, ‘political agreement between the Parliament and the government, the demands to V. Yushchenko ‘to make clear what is his political party, etc.
Having no constructive suggestions, some politicians, even having refused from their communist past, the time repeat the bolsheviks error, all the time looking for enemies. The role of the latter in Ukraine is usually played by the free mass media (which elucidate the events in the country ‘in a wrong way) and the government (which ‘miscarries the reforms). And where is the head of the state with his extremely broad powers, where are his law drafts, with which he had to ‘load the Parliament? Only after this one would have the right to criticize the Supreme Rada for artificial prolonging the law-creating process and non-constructional attitude. And where is our Parliament, whose work satisfies only its chairmen? Almost five years have passed since the adoption of the Ukrainian Constitution, but not a single code has been adopted since then. This illustrates very well the efficiency of the work of the Supreme Rada in its main function – adoption of laws. Parliaments of the civilized countries spend all their potential and most of their time to fulfil this function. Unfortunately, the Ukrainian Parliament digress from this function very easily, devoting the time to political fights and quarrels.
And what has the Parliament done to facilitate the efficient work of the government? Practically nothing. The legal status of the Prime-Minister still remains rather vague, his political image and role are artificially belittled. Moreover, the existing system of relations between different branches of the power, the possession by the President of too much power and, in fact, the complete irresponsibility for the results very often (if not to say always) make a current Prime-Minister just a scapegoat, who is responsible for all the troubles of the state and has to retire for them. This enables the President permanently play the part of an aloof observer and ‘commentator of events in the country. It also enables some members of the government to openly ignore the orders of the Prime-Minister, who has no tools to influence them. Can such a government efficiently work under such conditions? Is it necessary to exchange another dozen of Prime-Ministers to see the obvious: in order to carry out real reforms, and not those on paper, it is necessary to create the proper legal base for government activities? Thus the artificial problems of creating the coalition government, demands to the Prime-Minister to determine to which party he belongs, attempts to drag him into political squabbles, the idea to sign the political agreement between the Parliament and the government again may drag our society into a fruitless discussion, while the pauperization of the majority of the population will last. Moreover, such appeals, and especially the latter idea to sign the political agreement, is actually another to circumvent the operating Constitution, while it is rather complicated to introduce changes observing the proper procedure. It would need 300 votes, which is impossible having the Parliament such as it is; besides the changes will need the confirmation by an all-Ukrainian referendum. It seems that some politicians, who dared to represent the so-called ‘parliamentary majority, actually attempt to change the operating Constitution in the part, which treats the legal status, principles and mechanisms of mutual relations of different branches of power. The Ukrainian Constitution determined the interrelations among the Supreme Rada, the President and the Cabinet of Ministers rather distinctly. That is why different branches of state power have only to obey the existing norms, punctually and carefully fulfil their constitutional functions, instead of searching new, diverse, but almost always futile ‘ways or ‘recipes of improving the situation in the country. And the ‘noise around signing the political agreement and creating the coalition government is another attempt of certain political forces to attract public attention and to obtain additional political dividends before the coming parliamentary election. This is a part of a long-term PR-campaign, prepared by experienced image-makers for these political forces. Before the coming parliamentary election we shall certainly become spectators of several similar ‘political shows.
The office of students brotherhood vandalized and robbed
This is the second case within half a year. This time the place was vandalized very insolently, and one cannot help thinking that the primary aim was not to rob, but to paralyze the activities of the organization. The culprit penetrated to the office through a window. They managed to cut and break out the window bars, and it happened on the street, where militia has a regular beat. The place bore the traces of a meticulous search: the drawers were emptied and the safe carried marks of the attempts (unsuccessful) to open it. When we found in the early morning what had happened, we turned to militia. The militiamen, who came did all they had to do: inspected the room, made lists, took testimony and fingerprints. However, it should be mentioned that they did the same the previous time, in autumn, when four doors were broken and a telephone (!) was stolen, and until now no one is found.
We suspect that what had happened is not a mere burglary, but a well-planned action to frighten us and to impede our work. This is not a mere material damage, this is a serious blow on the further work of our organization. We shall hardly be able to fulfil our nearest plans. What must we expect next time?
Information from the public committee ‘For truth!
In what follows we quote the complete text of the appeal:
To Dr Mykhaylo Zgurovskiy
Rector of the National Technical University of Ukraine (NTUU) ‘Kyiv Polytechnic Institute
Respected Mykhaylo Zakharovich!
We must express our protest against the pressure, which is exerted upon us in the connection with our civil position and realizing our rights guaranteed by the Constitution.
On 23 March 2001 some militiamen and clerks from rectors office demanded from a group of students of the institute – members of the public committee ‘For truth! -- to leave the territory of the institute and not to spread the informative materials prepared by the committee. The militia and rectors office did not stop their illegal demands even after we showed them the corresponding text of the Ukrainian Constitution.
In the connection with this incident we declare that the Constitution and legislation guarantee us, as citizens, the right for the free expression of our opinions. Article 34 of the Constitution unambiguously reads: ‘Everybody is guaranteed the freedom of thought and speech, for free expression of opinions and views. Everybody has the right to gather, store, use and spread freely information in the oral, written and any other forms.
Articles 21 and 22 of the Constitution indicate that ‘rights and freedoms of citizens are inalienable and inviolable, ‘are guaranteed and ‘may not be cancelled. The only restriction of rights, which the Constitution does for students and teachers of higher schools is the prohibition of creating organizational structures of political parties in higher schools.
The public committee ‘For truth! is not a political party, and we, as law-abiding citizens, do not create any party structures in the university. So, any restrictions of our constitutional rights with the reference to sublegal acts and especially on the oral orders are illegal.
We hope that the events of 23 March were an irritating misunderstanding, and we shall not need to protect our rights by way of adequate actions of students solidarity.
Letter of Andrey Ishchenko
When I was lying on the ground among other bodies I got some other blows with a rubber club on my head and back. That happened when I moved. Later I, together with other detained, was brought to the Dniprovskiy district precinct of Kyiv, where they took what remained after other searches: a golden cross, a wrist watch and Hr 12.
No protocols on my detainment and arrest were compiled and signed by me. No receipt was given about the confiscated things. I was not tried by any Ukrainian court either.
In the precinct my photo was taken by a photo and video cameras, my fingerprints were taken. I also wrote an explanation, in which I demanded to call a motor ambulance for me. After this an motor ambulance came and took me, accompanied by militiamen, to the hospital of urgent aid (3 Bratislavskaya St., Kyiv). I was placed to the toxic ward, which is permanently guarded by militia. I handcuffed to my bad post. Doctors found cerebral concussion, bruises of soft tissues on the occiput, haematomas on my head and bruises on my back and legs. From 9 to 13 March I was staying in the toxic ward under round-the-clock guard. Nobody explained to me the reasons of my detainment and arrest, I do not know these reasons even now. Only late in the evening of 13 March the ombudsperson Nina Karpacheva managed to squeeze into our ward. She told me that I was free to go. But my detainment was prolonged by one day by the militia even after my transfer from room No. 212 of the toxic ward to room No. 14 of the neuro-surgical ward No. 2.
In the Dneprovskiy precinct they returned to me a part of the confiscated things. Yet, until now they have not returned to me several things: 70 USD, the pager, keys and others.
I regard the actions against me personally as a crime, in the result of which I was illegally detained, then arrested with the brutal violation of all proper procedures. I demand to start a criminal case against officers, who persecute me for my civil position and political convictions, who detained me illegally and kept me five days in captivity. They beat me brutally, bruised me and tortured me. The misuses their power and robbed me. I demand them to return my things and money that were illegally confiscated.
I declare that on 9 March 2001 in Kyiv during the action ‘Ukraine without Kuchma I did not participate in anything illegal or conflict situations, did not call to violence to any law abuses.
20 March 2001
Protest actions of the opposition and reaction of the authorities
Sergiy Buravliov, a judge from the Starokyivskiy district court, considered an administrative case concerning 14 out of 40 activists of the action ‘Ukraine without Kuchma detained on 1 March (Article 185 Part 2 of the Administrative Code of Ukraine). The court session was held in the building of the Pechorskiy district precinct, where the culprits were held in the isolation block. Having considered the materials given by militia and having heard to the testimony of eye-witnesses, the judge closed the case since he did not see any violations of the Administrative Code in the actions of the accused.
It should be mentioned that the legal aid to the accused was given, without any preparation, by a peoples deputy Yuri Karmazin, who accidentally happened to be at hand. The other detained were not so lucky: their cases were considered without legal aid, and the majority of the accused were condemned to fines.
Oleksandr Rozhko, Kyiv
After the clash between the militia and the participants of the action ‘Ukraine without Kuchma on 9 March in Bankovaya Street the law-enforcers detained several persons suspected in the participation in the clash. It happened in the evening of the same day. Servicemen of the elite militia unit ‘Berkut broke into the office of the UKRP party, as it rumors, without search and arrest warrants. They broke some property of the party, detained all, who were in the office, brutally beating many of the detained (information by ‘Helsinki-90 committee).
According to various data 60-70 persons were detained.
At the same time the militia started raids at the railway and bus stations in Kyiv, detaining young people, mostly students. Only at the main railway station about 100 of suspects were detained.
According to ‘Helsinki-90 committee, in the evening, after 8 p.m., militiamen began to detain students in hostels of State University, Polytechnic institute and Economic University; in the process they made searches without search warrants.
The total number of the detained is not exactly known. The militia acknowledged that they detained not less than 203 persons, but ‘Helsinki-90 committee asserts that this number is about 250. Moreover, the relatives of the detained were not informed about the event.
Some activists, as eyewitnesses told, were dragged from the crowd by some plain-clothed agents. The activists were taken to a place unknown with their eyes tied closed; in several hours they returned home, so nobody knows where they had been taken to.
On 10 March judges of district courts were summoned to precincts. Directly in the cooler they announced the verdicts about committing violation of the administrative law (Article 173 of the Administrative Code) and about the administrative arrest for the term of 3-15 days. But later the head of the Kyiv city court cancelled all the decisions by procedural reasons.
Yet, several criminal cases according to Article 71 of the Criminal Code of Ukraine (‘Mass clashes) were started.
The right to a fair trial
Frightful stories from the present day Kyiv GULAG
Andrey Kudin. ‘How to survive in custody
One day before her arrest former vice-Prime-Minister Yulia Timoshenko caustically remarked that she has the packed suitcase and awaits for a long imprisonment. Ms Timoshenko would not joke in such a way, if she knew what awaits her.
On 13 February the prosecutors office sent Timoshenko to the Lukyanivska prison of Kyiv, a rather notorious establishment – the center of torture, psychological pressure and other pleasantries both in the Soviet times and today, after ten years of the independent Ukraine.
The nasty state of health of that came to Timoshenko after her arrest pushed to the footlights the state in Ukrainian prisons, and this picture appeared to be ugly.
In spite of the bragging speeches of Ukrainian state figures about the improvement of the conditions in the penitentiary establishments, many citizen continue to associate them with the notorious Soviet GULAG.
Both convicts and human rights protection organizations say that Ukrainian penitentiaries remain centers of violating human rights. They say that the attitude of the prison personnel to convicts almost have not changed since the time of Stalins terror. They also say that, like in the old times, prisons remain a tool of political repressions.
The opaque legislation of Ukraine is the other tool – according to the operating laws, militia has the right to send people to a prison only on the basis of a ‘strong suspicion, without any court decision. This ‘strong suspicion played the decisive role in bringing Timoshenko on the bad side of the prison bars. And she was not the first in this sad list.
‘In Stalins epoch all was simpler. The hypocrisy and cynicism of the current situation is now called ‘democracy, said Andrey Kudin, the author of the book ‘How to survive in custody. He said: ‘The logic of the current regime is similar. Everybody not loyal must be found and removed.
Kudin is 36-years-old, he is a Doctor of Philosophy (not a Ph.D.). Now he is specialized in human rights protection. In 1997 he was arrested because of the letter from his acquaintance, who affirmed that Kudin was mixed in a hired murder. Kudin was acquitted by the court and his arrest was acknowledged as illegal. But what was done, was done.
Kudin was released from Lukyanivska prison in February 1998 with the cerebral trauma so grave that he was acknowledged an invalid of the second group (out of the 3 groups. – Translators note). He said that the trauma was the result of numerous beatings by militia officers, who tried to batter the needed testimony out of him.
Kudin asserted that in reality everything was much more complicated. Later it became known that he had never been officially accused of any crime. A week after his arrest the Parliamentary Committee of fighting corruption and organized crime came to the conclusion that the actual reason of his arrest was the desire to press upon his farther Viacheslav Kudin, a member of the National Council in charge of radio and TV broadcasting. This Council allocates time and frequencies for various private radio and TV channels.
According to human rights protection affirm that arresting people and then forcing them to give false evidence is the usual practice in Ukraine. Tatiana Shpak, the wife of Sergey Shpak, who is kept in the Lukyanivska prison, said that her husband became another victim of this practice.
‘My husband kept his hunger-strike during half a year protesting against his arrest grounded on the evidence obtained under torture, she told. -- ‘He could not walk and his teeth fell out. Sergey was given only one glass of water per day. No medical aid was given to him until I complained to the authorities.
Sergey Shpak was accused of robbery. He terminated his hunger-strike last October and now he is expecting the trial in the Lukyanivska prison. His wife complains that all the evidence against him was faked by investigation officers.
Kudins book ‘How to survive in custody analyzes in details the Ukrainian punitive system. The book contains pieces of advise how one must behave at the moment of the arrest, what to answer and what not to answer during interrogations. The book describes various methods of torture and degrading treatment, which militiamen use in order to get the needed testimony from the detained. Kudin wrote this book during his stay in the Lukyanivska prison.
Kudin wrote: ‘In cold seasons all the convicts sleep in their upper clothes because the temperature in cells rarely exceeds 5 degrees C. Awful anti-sanitary conditions, absence of ventilation, fresh air and day light result in various illnesses.
The authorities deny that in the treatment of convicts is so bad. They say that last year the convicts handed only one complaint. According to the information from the ombudspersons office, the inspection held in the middle of February showed that the conditions in the Lukyanivska prison were normal.
Kudins book, however, informs the reader that the people, who inspected the prison, were shown the same cells for window dressing, ‘with standard spoons and linoleum on the concrete floor. Other people, who know actual conditions in the Lukyanivska prison, also ridicule this misinformation.
‘They perhaps are joking. Exactly so as 10 years ago the conditions in this prison serve for degrading inmates, said Stepan Khmara, a former dissident and the head of the anti-President Ukrainian Conservative party, who stayed in the Lukyanivska prison for nine months since October 1990.
Another inheritance of the GULAG system in the Lukyanivska prison is solitary incarceration cells, where the convict spent up to 15 days.
‘The cell is a cold cubicle with a concrete floor and a berth, which is permitted to occupy only for 8 hours at night. All the remaining time the prisoner must stand or move. Any attempt to lie on the floor threatens to get pneumonia, told Evgen Dikiy, the head of the human rights protection organization ‘Helsinki-90. Conditions in Ukrainian prisons are lagging far behind the world standards, reckons Dikiy.
Organizations that control, how human rights are observed, say that the Lukyanivska prison does not satisfy even the minimal UNO rules, to say nothing about the more requiring rules recommended by the Council of Europe.
‘Since 1917 not a single prison in Ukraine has been built, Dikiy said, ‘The treatment of convicts in the Lukyanivska prison has not improved enough since the days of the Russian Empire. The only advance is that a cell intended for 8 people now contains not less that 18.
Some statements by Dikiy are doubtful. Stepan Tkachenko, an ombudspersons speaker said that that the upkeep conditions in the Lukyanivska prison have actually improved during several recent years.
‘First, metallic window shields, which blocked the sunlight, have been taken off, hot water has been served, bare plank beds have been exchanged for usual beds, said Tkachenko. – ‘The nutrition expenditures for one convict have been increased from 17 kopecks to Hr 2 per day.
Yet, even Tkachenko confessed that the upkeep conditions are still lower that the standard. He confirmed that the prison might be used in order to break the spirit of quite innocent people.
‘This is typical, when people are thrown to prisons rather because of a suspicion than hard facts. People stay in preliminary prisons for several years, and then it becomes clear that they are innocent. These people will leave the prison quite with a broken spirit. They will never be like before.
On paper the Ukrainian law forbids such punishments, and, theoretically, a court must consider a case within two months. In practice, people wait for a court decision even during four or five years.
Tkachenko makes excuses that courts are overloaded and under-financed. Skeptics add that politics is often involved. They say that the arrest of Yulia Timoshenko, the most implacable foe of President Kuchma, confirms this statement.
Last-year arrest of the top officials of the ‘Slavianskiy bank that worked with the money of the enterprise ‘The United Energy System of Ukraine headed by Timoshenko is also considered by many as a witch-hunt. The bank president stands in a prison awaiting for trial during more than a year.
Dikiy reckons that the principle ‘Guilty until proved otherwise is a Soviet one.
‘This was a tradition since Stalins times. Officers in charge simply do not know how to investigate an affair, if the accused is not in captivity, Dikiy says.
Timoshenkos chances to be released in the near future looks dubious. Lukyanivska prison has already harmed her health.
According to a message of ‘Ukrainska Pravda of 27 February, Viacheslav Peredriy, a professor of RAND institute of nutrition, said that Timoshenko was examined in her cell and her health was acknowledged very poor. He refused to give any details, explaining that he himself was unwell after his visit to the prison.
General Prosecutors office more than once negated the information that Yulia Timoshenkos health is poor.
© KPnews. com 2000
‘Kyiv Post, 7 March 2001
PL commentary. In general, agreeing with the article from ‘Kyiv Post, it must be noted that, contrary to skeptics, the upkeep conditions in some preliminary prisons (especially in new ones) have become a little better, and the conditions in penitentiaries have considerably improved in the recent years. Unjustified restrictions in sending and receiving letters and parcels have been cancelled, an opportunity to phone to ones relatives has appeared, clerics of various confessions have the right to visit penitentiaries, convicts have got the right to possess the Bible, the penitentiary personnel contact with public organizations, although the proper level of openness has not been reached yet. This optimistic correction is justified, since all penitentiaries in the article are called ‘prisons, although in Ukraine there are only three prisons and they are used for keeping the most dangerous hardened criminals. The bad conditions are mainly due to insufficient financing. In fact the food for a convict costs from 8 to 30 kopecks per day – is it possible to nourish one for such a sum? The more so, the financing is planned according to the capacity of a penitentiary, and the latter is always overcrowded by 2-4 times. It should be also noted that the representatives of human rights protection organizations must be more accurate and objective in their assessments. Errors in one figures give birth to distrust to others. And Evgen Dikiys statement that no prison has been built in Ukraine since 1917 is a blunder. Only during the independence several preliminary prison and penitentiaries were built in Ukraine. In the Soviet times many penitentiaries were built to keep the limitless flow of criminals, which increased by tens or even hundreds times compared to those of the czarist times.
As to torture, degrading treatment and psychological pressure, they actually happen even before starting the case or during investigation. The latter is especially frequent in ordered cases with a political lining, as in the mentioned ‘Slovianskiy bank affair or Yulia Timoshenkos case. Some obstacles to the lay of things are may appear after the introduction of the new norms on detainment and arrest. They were mentioned in the previous article. Yet, until now the Parliament has not adopted the law with Presidents comments. Secondly, the efficiency of the law depends much on the law-application practices.
As to release of Yulia Timoshenko, we believe that not all the is are dotted after the decisions of the Pecherskiy district and Kyiv city courts.
Humanization of criminal-procedural legislation: a long step forward
The essence of the changes is briefly as follows.
During 24 hours after the moment of the detainment the police authorities must hand to a court a motivated document on the application of the preventive measures to the person suspected or accused of committing the crime. The court has the duty, during 72 hours after the moment of the detainment, to take a motivated decision on the preventive measures; the consideration of the case must be carried out in the presence of the prosecutor or investigation officer, the suspected and his advocate. According to the new Law, an arrest is an exceptional measure. If, according to the operating CPC, the arrest is done, if there are sufficient grounds that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case, then, according to the newly adopted law, the sufficient proofs must be gathered for the arrest that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case. The suspect is freed from the arrest, if he agrees to fulfil the needed conditions required by other preventive measures. This norm may not be to persons, who had committed a grave crime, as well as to persons, who are suspected or accused of committing a grave crime or of committing a crime together with an organized criminal group.
The terms of captivity were also changed. Two months are granted for an investigation, if this term appeared insufficient for resolving the case, and there are no reasons to change the preventive measure, then the term may be prolonged by the judge, who before had chosen the arrest as a preventive measure, for other two months. This is permitted only concerning crimes, which may be punished by not less than 3 years of incarceration. The prolongation of the investigation up to the total term of 6 months may be granted by an oblast prosecutor or his deputies in the cases of extremely difficult and grave crimes. The prolongation of the investigation up to the total term of 9 months may be granted by the General Prosecutor or his deputies in the cases of extremely difficult and grave crimes. Thus, the maximum term of preliminary incarceration is halved.
The Law permits to direct cases to the court not entirely, but only by parts, which are considered to be proved. Here lies a great danger: the court has the right to direct a case for an additional investigation and do it many times. As a result, a court may consider the same parts of a case for many times, while the suspect stays in a preliminary prison. Unfortunately, the Law does not limit the total term for staying in captivity under investigation and trial.
Appeal to advocates of the Dnepropetrovsk oblast
Lately a new tendency has appeared in the law-enforcing system of our oblast: the statements of the Ukrainian Constitution, Criminal-Procedural Code, Law ‘On advocates and related legal acts directed to defend rights and interests of citizens are systematically ignored. These tendencies are especially noticeable in the criminal legal proceedings at the phases of the opening of a criminal case and the preliminary investigation. This situation became possible because the rights of advocates, when they defend their clients, are brutally violated by law-enforcers. In many cases, under any pretexts, pressure is exerted on the suspects in order to deprive them of legal aid at the early stages of investigation. Advocates are not given the documents of the case, which justify the detainment of the suspect, or justify the kind of preventive measures or the kind of the accusation. They are restricted in the number and duration of meetings with their clients, the terms of responding to complaints, applications and petitions are made too long, contrary to the instructions. The mentioned responses are often quite formal, they are considered longer than within three days stipulated by law, the measures on the fulfillment of the legal norms are rarely applied. When advocates defend their clients they are identified with the latter and their cases. In fact advocates are treated as ‘poor relatives. Otherwise, how one can explain the fact that advocates are not admitted to prosecutors offices and militia precincts, when they show their IDs? In spite of the nihilistic attitude to advocates in the Dnepropetrovsk oblast, one must not forget that advocates make the legal institute of human rights protection. The meeting of the oblast advocates, held on 19 January 2000, in the 1st anniversary of the adoption of the Ukrainian law ‘On advocates, appeals to all advocates of the oblast to direct to the Presidium of the oblast collegium of advocates all the available information on illegal actions of law-enforcers relative to advocates. This information will be used for the compilation of the appeal to the President of the advocates Union of Ukraine and the General Prosecutor of Ukraine. The address for sending the information: Dnepropetrovsk, 49070, 65 K. Marx St., room 12.
The present appeal will be published in mass media.
Approved at the meeting of advocates of the Dnepropetrovsk oblast on 19 January 2000
In a law-abiding society advocates play an important role… And what about Ukraine?
In Ukraine the situation is even sadder. On 13 January 2000 Article 691 was added to Criminal-Procedural Code. This article lists the additional right of a witness. Unfortunately, the right of the witness to bring his advocate is not mentioned in this list. This fact rudely violates the rights of citizens, who later may be brought to the criminal responsibility. Investigating officers deftly manipulate by this omission. For example, very often after a road accident the culprit is first interrogated as a witness. At the same time, in the absence of the culprit, the basic ODA, such as the technical expertise, are executed. In the process of the expertise the investigating officer asks the expert some questions about exceeding the speed limit, movement in his lane, etc. Very often the question are worded such that they prove the guilt of the alleged culprit. If the witness (a perspective culprit) and his advocate were present during the investigation, then they could ask question so that the expert would change his attitude. However, the witness has no rights at this stage of the investigation. Actually, when the ODA are practically over, the witness becomes the accused and only then learns what are the materials of the case. The requests for making additional expertise for elucidating other circumstances are, as a rule, rejected. The complaints to the district prosecutors office on the investigating officers actions are, as a rule, disregarded, and the materials are directed to the court. This is one of the main reasons of the great proportion of investigation errors, and further, at best, the court directs the case for an additional investigation. Very often the judge uses (directly or indirectly) in proving the guilt of the suspect the material of the expertise, although it was carried out in a biased way. Unfortunately, this practice is widely applicable not only in the cases about road accidents.
The Kharkov Group for human rights protection took an active part in defending citizen B., against whom a criminal case was started in 1997; he was accused of the theft of jewels. It appeared that there were no concrete arguments against him, and the case was closed in the end of 1997 by the Merefa district militia directorate. In summer 1998 B. was summoned this time to the Kharkov oblast militia directorate and again interrogated with respect to the former case. When the suspected asked the investigating officer Moroz to permit B.s advocate to be present at the interrogation, the officer refused because B. was interrogated as a witness. By the way, the accused suffers from a slight degree of debility; he had been, in particular, released from the military service by this reason. On 9 February 1999 B. Again was summoned to an interrogation, again without his advocate. The criminal case was reopened, he was detained and for 10 days interrogated, this time as the accused. He was kept in the preliminary prison for 18 months.
The absence in the Criminal-Procedural Code of Ukraine of the right of a witness for legal aid at any stage of the investigation brutally abuses both the interests of a citizen and of a state. Plenty of criminal cases last for years, are sent to courts, then are directed for additional investigation because of the lack of proofs, after which they are often terminated. Nobody bears any responsibility for an inadequate investigation, which causes not only material and moral damage to the accused, but to the state as well. The victims of the procedure usually stay in captivity all this time…
Cop on duty as an interpreter of the Constitution
The right for the legal aid is violated almost always in administrative cases. For example, citizen P. was summoned to a precinct. At first he gave explanations of certain actions, then his residence was searched at his presence, then he again was taken to the precinct, where the protocol was compiled about an administrative offence (although during the alleged offence he was kept in the precinct). P. was forced to write the explanation, in which he framed himself, was kept in the precinct overnight, and then brought him to trial promising to punish him by a 10-day arrest. At the court session, the judge, unlike the militia, permitted P.s advocate to be present, and this completely changed the verdict: P. was released. Unfortunately, few judges act in such a way. A more often script is such: the accused declares that he has an oral agreement with an advocate and arguments that the accusations are groundless. Yet, the judge does not postpone the session until the meeting of the accused with his advocate and takes a decision to apply administrative arrest. Cases happen when militiamen have the right to detain a person according to Article 115 of the Criminal-Procedural Code, but, instead, they compile a protocol for petty hooliganism, that may complicate the case later. It is senseless to detain one for robbery or other felony and write in the protocol that he is guilty of petty hooliganism.
Complications also happen, when meetings of a suspect and his advocate are arranged. The permission of a judge for such a meeting does not guarantee that the meeting will actually take place. Well-trained officers always find some pretexts that will make the advocate to wait for hours of nasty weather before the closed gates of the preliminary prison. The advocate may be information that his client does want to see him, that there is no suitable room for the meeting, that the arrested had been taken to reforming labor and nobody knows, when he returns.
All these examples testify that law-enforcers, like sumo wrestlers, try to oust advocates from the ring. At the same time the very presence of an advocate (or, according to the new regulations of the Constitutional Court, an individual related to jurisprudence) creates the moral atmosphere, when rudeness and maltreatment of the suspected by militia is excluded, when the suspected does not regard himself helpless, to say nothing about the fact that the presence of an advocate would prevent most complaints on activities of law-enforcers. The consideration of such complaints takes a lot of the valuable time from the corresponding officers, and this time they could spend fighting against crime. The strict obedience of the rules concerning legal aid does not require much expenditure. For this the corresponding agency legal acts are needed, following which law-enforcers would be obliged to provide citizens absolute execution of their constitutional right for legal aid. Undoubtedly, the courts must have their hand in providing this right. Many public organizations supported by various foreign and international public institutions function in Ukraine. Having united their efforts, experts from these organizations could systematize the needed excerpts from the Constitution, Criminal-Procedural Code and Administrative Code that treat the rights of citizens in their relations with the corresponding organs. These recommendations should be placed at strategic points: precincts, reception offices, coolers, preliminary prison, etc. Ukrainian citizens should know their own rights and demand militia and prosecutors office to follow these rights to the letter. If a country declares the top priority of citizens rights, then it must guarantee the fulfillment of these rights, without waiting for the prods from Europe.
Freedom of expression
The public committee ‘For truth! expressed its alarm about the freedom of speech in Odessa
The law-enforcing organs also exert pressure on the oppositional mass media in Odessa. Ivan Grigorenko, the current head of the oblast Directorate of Interior started a suit against two local newspapers -- ‘Slovo and ‘Rabota i otdykh. The reasons of these suits are that the newspapers dare to write about the misuse of power on the side of militia.
Two popular presenters of the TV feature ‘OKO Igor Grinshteyn and Sergey Kovalinskiy were forced to go on leaves by the administration of the city TV company ‘Odessa-plus, where they work. It was done immediately after the journalists permitted MPs Yuri Karmazin and Viktor Shishkin to take part in the feature ‘OKO. These MPs appealed citizens of Odessa to take part in the action ‘Ukraine without Kuchma and sharply criticized the activities of both President Kuchma and his administration.
The authorities of the Nikolayev oblast started the new stage of fighting the freedom of speech
The oblast authorities have never cherished oppositional mass media. For example, they do not admit the newsmen from the newspaper ‘Ukrainskiy Pivden to the sessions of the oblast council and to the conferences held by the oblast administration. In the notorious case in Pervomayskiy district and during the protest actions against the widening of the Tashlitska hydro-accumulating station obstacles were organized in getting the information. Now the administration has another headache -- the action ‘Ukraine without Kuchma.
According to Yuri Didenko, the head of the Nikolayev branch of the Popular Rukh, ‘the state with the freedom of speech in the oblast does not cause noticeable optimism. The pressure on the mass media is increasing. One of the fresh examples is the ban of radio ‘Liberty that was retranslated by the local radio station ‘Mykolayiv.
Further Yuri Didenko said:
‘The inhabitants of the Nikolayev oblast and neighboring oblasts have accustomed to listen to radio ‘Liberty, which reports on the recent events in Ukraine as always objectively. Alas, already for a week the listeners are deprived of these transmissions. That is the reason why many inhabitants of the region turn to the local Rukh organization and to the newspaper ‘Ukrainskiy Pivden, but they do not receive a concrete answer. Hat is clear is this termination of the transmissions is initiated by the local authorities headed by Aleksey Garkusha, a member of the Agrarian party of Ukraine.
Yuri Didenko did not believe the spread explanations about technical reasons. He said: ‘Technical problems always existed. But they lasted less then a day and so only some materials were omitted. And now the translation has been terminated for a week…
The official explanations seem especially shaky because simultaneously the authors feature of the head of the local Rukh organization, devoted to the problems of reforming the agrarian sector in the region, was stopped to be transmitted as well. This feature quoted letters from listeners on this topic, appeals to the Popular Rukh from the people, who suffer in the process of getting their land plots and property or during compensation payments. The feature often criticized the oblast and district authorities
An appeal of Kharkov journalists about Dmytro Shurkhals arrest
To the Supreme Rada of Ukraine
To the Supreme Court of Ukraine
To the General Prosecutor of Ukraine
Copies to: mass media and human rights protection organizations
We, journalists from Kharkov, share the anxiety of our Lviv colleagues about the destiny of Dmytro Shurkhal, a special correspondent of the newspaper ‘Postup in Kyiv. On 9 March he was detained bylaw-enforcers, when he was fulfilling his professional duty. The pretext for the detainment was his taking an interview about the actions of Kyiv militia against the participant of the action ‘For truth! In the process the militiamen applied violence against the journalist, he was cruelly beaten, his documents and his professional tool -- dictaphone -- were confiscated. Thus, the law-enforcers brutally violated the Universal Declaration of human rights, the European Charter of the freedom of speech, the Ukrainian Constitution and the Law ‘On the press. On 10 March the Kharkovskiy district court of Kyiv condemned Dmytro Shurkhal to 15 days of arrest for the alleged ‘hooliganism.
Filling anxiety for the lot of our colleague we at the same time are worried by creating a juridical precedent of detaining a journalist in the process of his professional activities. We consider inadmissible creating any obstacles and persecutions in the fulfillment of duties by journalists. We demand to cancel the court decision concerning Dmytro Shurkhal and to release him immediately; besides we demand to bring public excuses before the journalist and to punish the guilty.
Signing this appeal, we express our personal attitude to the fact of the punishment of our colleague, without attempting to express the attitude of the mass media, where we work.
15 days of arrest to a journalist
On 10 March the Kharkovskiy district court of Kyiv condemned Dmytro Shurkhal to 15 days of arrest ‘for hooliganism and ‘bad language used in a public place.
I wonder, whether the office of the Ukrainian President is a private place or a public one?
The KhG information
Illegal and brutal actions by militia are going on
On 29 August 2000 A. V. Chetverikov (born in 1981) turned to the reception office. He complained at the illegal actions of militia. According to his complaint, on 28 August 2000, soon after his return from the USA, where he had studied in a university, when leaving his home he met two plain-clothed men. They introduced themselves as militia officers, but did not show their IDs. Without any explanations the militiamen started to twist his arms and to beat his face. The victim was handcuffed and dragged to his flat. Although they had no search warrant, the militiamen began to search the flat. After the long-lasting search Chetverikov was taken to the district precinct, from which he was soon released. As a result, the following things disappeared from his flat: a guitar (a present from his American friends), $100 and Hr 150 and the documents for the right to own the flat. Later everything was returned except the money.
Another complaint came to the reception office щn 12 January 2001. It was from Mrs. Pobizhetska, mother of a victim (from Vinnitsa). The complainer described illegal and brutal actions of militiamen directed to her son Aleksandr Pobizhetskiy. She told that on 1 August 2000 at 10:30 p.m. armed people with tommy-guns and in armored jackets broke into the flat, where her son with his family resided. Without any explanations and without showing their documents, they threw Aleksandr down on the floor and began to kick and beat him with clubs and guns at the side of his little son. When the child started to cry too loudly, one of the men pointed his gun at the boy and shouted at him. Aleksandr was taken outdoors, and the flat was searched. During the search Aleksandrs wife and her sister were threatened and called names. Then the militia officers said that they were going to detain Aleksandr, take him to the district precinct and release next day. As a result of this brutal action the little child and the wife of Aleksandr Pobizhetskiy got moral damage. Later Aleksandr was accused of a crime. Certainly, considering such methods of detainment of suspects, one begins to brood, why during the ODA militiamen completely ignore and brutally violate legal rights of people, sometimes obviously innocent?
On 10 February 2001 a complaint from Valeriy Feygenzon, a former citizen of Ukraine and a present citizen of Israel, was received by the reception office. In his letter Feygenzon asserts: ‘Inlaw-enforcing organs faked criminal cases are fabricated, torture and beatings are applied to extract confessions from the suspects. They put gas masks on the heads of the tortured, beat them with plastic bottles filled with water, beat on the heels, put armchairs on the ribcage and use other methods borrowed from the Stalin NKVD and the Hitler Gestapo. Certainly, people cannot stand such torture and are ready to sign any testimonies and confessions. The complainer asserts that he has many convincing proofs, which testify about brutal and illegal actions of law-enforcers. In particular he has a videocassette, where it is recorded how militiamen from Kremenchug of the Poltava oblast beat and torture the interrogated people. The names of the torturers are given. The complainer demands from the top state officers of Ukraine to stop the wave of violence on the side of law-enforcing organs directed at Ukrainians and especially Jews. He also demands to start criminal cases against some militiamen of Kremenchug. Otherwise he promises to pass the film to international mass media and, as an Israel citizen, to the Knesset of Israel.
Commentary to the resolution of the Supreme Court of Ukraine No. 05-3342 св 00 of 18 September 2000
The actions of the militiamen were directed for making a search, that is the investigation action, which means ‘compulsory search of residence, constructions, plots of land and other objects belonging to some person with the purpose of finding and confiscating some articles or documents, which can be important for an investigation, or finding some sought for persons, alive or dead; the action is carried out if there is information that the items or persons to be found are concealed in the place of search. That is, the special edition points out the compulsory character of the search. So, the search relates to so called measures of the procedural coercion. Under the term the procedural coercion the juridical science means ‘a set of coercive measures stipulated in the Criminal-Procedural Code (CPC), which had to guarantee the fulfillment of needed duties of the participants of the criminal case and the proper fulfillment of the tasks of the criminal trial.
From the viewpoint of the militiamen their actions fully agreed with the mentioned definition: the law (Article 181 of the CPC) requires the presence of the searched person, to break the door is much more difficult than to make the owner to open it with the key and so on.
However, the militiamen did not take into account that there are limits of the procedural coercion, which not only protect legal rights and interests of citizens, but also regulate the activities of state officers, carrying the ODA.
The limits of the coercion during a search are determined by three elements: applicable ways of the coercion, the search object and the circle of persons, who are searched. The last element was duly obeyed: the coercion was really applied relative to the person mentioned in the search warrant, and thus it seems to be correct. However, concerning the other elements, the actions of the militiamen are open to criticism.
The ways of coercion, which are commonly applied by state agents during a search, are as follows: opening locked rooms and stores, if the owner refuses to open them voluntarily; the persons, who are present in the searched room, or those, who entered the room during the search, must stay in the searched place and must not communicate between themselves and with other people until the end of the search. The officer in charge of the search has the right, without having any additional warrants to make the search on a person present. However, this list is compiled on the basis of the current practice and is not obligatory. The arguments pertaining to space look much more convincing. The search warrant sanctioned by the prosecutor of judge must strictly indicate the place of the search. This restricts the place where coercion may be applied. Thus, the actions of the militiamen, who applied the coercion to the person to be searched not in his flat, but outside (on the staircase), clearly violated the limits of the procedural coercion during a search.
Yet, the Supreme Court mentioned a violation of the Constitution and the European Convention of human rights, but not that of the CPC. Why? Perhaps, there are two reasons for it. First, the above considerations are not the formal law, they describe only practical interpretations, the law does not give the exact and unambiguous answer to these questions. Besides, the detainment for a couple of minutes of the person to be searched does not look an essential violation worth of noting in the materials of the criminal case. Secondly, it was honor and dignity of the person that suffered from the public coercion, which means that this topic must be discussed and described in the terms of human rights protection, that is mainly in terms of the norms of the Ukrainian Constitution and the international agreements.
International-legal aspect of the situation under discussion is closely connected with the constitutional one and is expressed in the Supreme Court decision that beside Article 29 of the Constitution Article 5 of the European Convention of human rights and basic freedoms was also abused. Such direct application of an article of an international agreement of Ukraine became possible due to Article 14 of the Ukrainian law ‘On international agreements of Ukraine“ of 22 December 1993 and to Article 9 of the Ukrainian Constitution, which includes international pacts and agreements of Ukraine into the Ukrainian legislation, thus permitting Ukrainian courts immediately and directly refer in their decisions to such agreements as to the sources of the national right.
It should be noted that the Convention is not a contract, but a law-creating agreement. The main purpose of the participants of such agreements is not the creation of mutual subjective rights and duties, but the creation of the objective rights for their citizens with the corresponding duty of the state-participants to observe the rights. Therefore, the Convention was developed as a self-executable document, that is an agreement which will be applied by national courts without (or before) the inclusion of the corresponding legal norms into the national legislation.
However, the Convention is an international agreement, and this feature is revealed not only in the fact that it sets the guarantees of human rights protection, but also minimal guarantees valid for all the sides of the agreement, without demanding from the states the similarity in the measures undertaken for fulfilling the Convention. Thus, to preserve the efficiency of the tool, the special organ – the European Court on human rights – was created, that had the exclusive right to interpret the Convention articles applicable to concrete cases. Later the Court practice, having become considerably wider and deeper, became a set of rules, that made the norms of the Convention more exact. All member-countries must obey these rules for the complete realization of the indicated norms under the fear of paying considerable compensations to victims of the rule violations. This means that the Ukrainian court, before making a decision using Article 5 of the Convention, had to pay attention to how this article is treated by the European court.
In the case considered the Supreme Court meant item 1b of Article 5 that forbids any detainment in all situations except a legal arrest, or a detainment of a person for disobedience to a court decision or with the purpose of guaranteeing the fulfillment of any obligation stipulated by law.
Indeed, the actions of the officers were not legal. Moreover, in the given situation the person, whose flat is to be searched, had no obligation to be present during the search, if the person was absent from the very beginning in the place of search. The law contains a special procedure for such a situation: the search is made in the presence of witnesses and a representative of the house manager, who must guarantee the legality and objectivity of the search.
However, in this case there is a difficult spot connected with the interpretation by the court of the term ‘detainment. The matter is that the court will not acknowledge any deprivation of liberty as detainment. One must ‘account of the concrete situation and take into consideration a number of criteria, such as: kind, length, consequences and conditions of executing the measure considered. The main criteria, which court takes into account in the situations connected with brief terms of the deprivation of liberty, are often the purposes of state actions, but not their consequences. The deprivation of liberty is intended for breaking the ties with the environment and loss of independence. Along with it the court acknowledges the necessity to guarantee to police and investigation services to execute their duties. So, it would impede the actions of the police, if every brief detainment would be qualified as a deprivation of liberty.
Similar cases were come across in practices of the European court and the European commission on human rights (the organ that earlier considered all the cases on the violation of the Convention before directing them for further processing; this organ is abolished now, all his functions were inherited by the Court). In particular, the commission acknowledged as a violation of laws the coercive detainment for taking a blood analysis, yet, other cases, including a detainment for making a search, did not lead to a restriction of liberty sufficient to be interpreted as a deprivation of liberty. So, one cannot be sure that the European court, if it considered this case, would acknowledge the militiamen actions as a ‘deprivation of liberty, thus falling under Article 5.
Thus, the reference of the Supreme Court to Article 5 in the connection with an illegal detainment does not look so convincing as one would wish. However, it should be noted that the European Convention, like other international document of this type, sets only the minimal level of rights protection, and the fact that it is not applicable to the given situation does not mean that the decision of the Supreme Court is wrong.
The constitutional aspect of this decision is connected with the fact that the resolution of the Supreme Court is based on Article 29 of the Constitution protecting everybodys rights to freedom and personal inviolability. The article contains guarantees similar to those of Article 5 of the Convention (the right to be informed on the reasons of the detainment or arrest, the right to contest the arrest in a court, etc.), but these guarantees are applied in to a narrower circle of cases: the article mentions only arrest or captivity. Yet, Article 29 of the Constitution provides a more profound protection of these rights than Article 5 of the European Convention. The commented decision demonstrates that the guarantees given by Article 29 can be extended even to a situation when a person is detained for several minutes for transporting to the place of search. Article 8 on the direct action of the Constitution norms has also found its reflection in the treatment of the case. Thus, the Supreme Court showed an example of its own interpretation of this article: ‘Since the Ukrainian Constitution, as it is mentioned in Article 8, has the highest juridical priority, and its norms are those of direct action, all courts, when considering concrete cases, must estimate the contents of any law of any legal act from the point of view of its concordance with the Constitution, and in all cases the Constitution must be applied as a direct action norm. Since the concordance of the CPC adopted in 1961 with the operating Constitution is very doubtful, then the application of constitutional norms to the given case looks well grounded.
The given decision has all the chances to become an important precedent. The official legislation of Ukraine does not recognize precedent right. However, as it is brilliantly demonstrated by the book by V. M. Brynstev ‘Unofficial court precedent, the opinion of a court of a higher level on this or that interpretation of the right has a great influence on decisions of lower level courts. So, the reference of advocates on the decisions of the Supreme Court can hardly be ignored by the court.
That is what really determines the political-legal significance of the decision. It is one of the few examples of the successful combination by Ukrainian courts of the two basic principles of law-abiding states: superiority of the right and human rights protection. Besides, it has made, although not very successful, attempt of the direct application of international standards of human rights protection, which is a significant event showing the step-by-step recognition by judges of the necessity to fulfil the international obligations of Ukraine in the sphere of human rights protection. In the light of the last conclusion the joint consideration of articles of the Ukrainian Constitution and of the European Convention on the protection of human rights and basic freedoms looks very promising. If this decision is widely known among barristers, that will have a beneficial influence both on the juridical attitudes and on the development of juridical practice in Ukraine.
Resolution of the Supreme Court of Ukraine No. 05-3342 св 00 of 18 September 2000
According to the decision of the Samarskiy district court of Dnepropetrovsk of 13 March 2000, M. Stebliuk was made administratively answerable by Article 185 of the Criminal-Procedural Code (CPC) of Ukraine and fined for Hr 300. This decision was changed by the head of the Dnepropetrovsk oblast court, who took the resolution of 21 April 2000, to diminish the fine down to Hr 255.
M. Stebliuk was brought to administrative responsibility for his spiteful disobedience to militia officers from the Samarskiy district precinct; in particular, he impeded them to search his flat at the address: Dnepropetrovsk, 2 20-richchia Peremogy St., Apt. 45.
The decision of the court must be cancelled and the case closed owing to the following reasons.
According to the sense of Article 185 of the CPC, spiteful disobedience to the demands of militia officers id punishable only when such demands are legal.
From the materials of the case it is quite clear that the judge of the first instance of the head of the oblast court completely disregarded this condition.
As can be seen from M. Stebliuks explanations, on 13 March 2000 about 7 a.m. he was moving towards his workplace and was detained by militiamen.
Referring to the search warrant of the flat, where Stebliuk lived, they took him by force to the flat, forced him to open the flat and searched it.
Being interrogated during the court session detectives of the Samarskiy district precinct O. P. Komisar and E. S. Shirokostup explained that they, on the basis of the order of the investigating officer, came to Stebliuk with the purpose of making a search. At this time he just appeared from the house and walked to the transportation stop. They tried to stop him, but he said that he was going to his work, pushed them off and offended. Having returned Stebliuk home, they started the search, in the course of which he again offended them.
The circumstances of this event, as they were described by O. P. Komisar, E. S. Shirokostup and M. M. Stebliuk, do not testify about any illegal actions of the latter, since the order about the search of the senior investigation officer of the Dnepropetrovsk oblast prosecutors office did not give the detectives the right to detain Stebliuk on his way to the work and to bring him back home.
That is why there is no reason to regard the actions of the militiamen as legal.
Taking into account that, according to Article 29 of the Ukrainian Constitution and item 1 of Article 5 of the European Convention of human rights, everyone has the right for freedom and personal inviolability, so one may be detained only observing the procedure stipulated by law, then M. Stebliuks actions did not violate Article 185 of the CPC of Ukraine. That is why the court, according to item 3 of Article 293 of the CPC,
To cancel the resolution of the Samara district court of Dnepropetrovsk of 13 March 2000 and the resolution of the head of the Dnepropetrovsk oblast court of 21 March 2000 concerning M. M. Stebliuk, and to close the case.
Point of view
When would you agree to become an executioner?
‘For an idea,
Note that there was no variant about the impossibility of killing a person under any circumstances. The reverse question: ‘When would you agree to become a victim of an executioner? was not considered either. What conclusions may we draw? Is it not clear that killing by the state is immoral and illegal in Ukraine? It must be noted that, according to the tone of this light-headed morning show, the showmen did not embarrass their viewers with moral, ideological, juridical or even utilitarian arguments pro and contra the death penalty. They did not refer either to Plato, or Dostoevskiy, or to tragic experience of totalitarian regimes of the 20th century. They used nothing but a chain of jokes about medieval and modern executioners. And no one, I repeat NO ONE did not express protest and interfered to this interactive nonsense! I believe that everyone has the right to have a breakfast with ‘1+1, but…
In the course of the feature the statistics of the viewers opinions was accumulated. The overwhelming majority – 297 people – voted for the financial reason. As they say, the comment is extra. Long live Ukraine and Ukrainians! Fortunately, the showmen were not interested in the details: whom, how and for how much. The respondents were also not interested in such insignificant details and did not try to justify their opinions. Actually, what is the difference between the profession of an executioner and of a hired killer? It seemed that the viewers never paid attention to such a philosophical question.
Those prepared to kill for an idea were more than two times less – 130. They were preferable women, and the metal in their voices almost proved their sincerity. They affirmed as a well-proven truth that ‘each citizen must do this to traitors, maniacs and various scum. Some of them reproached the ‘financially-minded executioners saying that ‘if one wants to clean the country from scum, how dare you to demand money? Those, who were prepared to kill from pity were not numerous – less than 90. The potential victims were incurably ill, such as AIDS-infected. The showmen almost did not comment the new and dubious for our society topic of euthanasia. It is instructive that no one, who was against any kind of killing, could not reach the feature.
It is senseless to reproach the showmen. The topic considered again reflects the unploughed field of morals and the attitude to the problem of admissibility of killing. In the recent periods of our history the concrete humane life was considered less valuable than certain political, military and similar goals. It was not only admissible, but honorable to kill ‘for the Faith, Czar and Fatherland, ‘for victory over enemy, ‘for the revolution or ‘for Lenin and Stalin. Now we can see how the former idols are exchanged for the primitive Mammons cult, when money becomes more valuable than human life. Certainly, the great distance is preserved from our society to those, which proclaimed the right for life as most fundamental (natural right, from which no one can deprive, including the power). After all such valued have been declared by our Parliament too (Article 3 of the Ukrainian Constitution). However, this is a typical lip service. The responsibility for making human life in the new society an all-sufficient fundamental value lies upon us, NGO representatives, upon priesthood, mass media and humanitarians in general. I propose to discuss this topic in ‘Prava ludyny.
I have been working as a physician since 1983, in an intense care ward for the last 15 years. Frequenting the brink between life and death, both patients and doctors feel the value of life especially acutely. I am sure that the problem of the admissibility of depriving one of life must be considered in the circle of moral categories, not of political, ideological and economic ones.