“Prava Ludiny” (human rights) monthly bulletin, 2003, #09
The draft of the Criminal-Procedural Code The open letter of human rights protecting organizations on the consideration by the Supreme Rada of the draft of the new Criminal-Procedural Code Freedom of expression
Two journalists were attacked in Zaporozhye. "Lvivska gazeta" brought a suit against Sergiy Medvedchuk. Army
Ukraine: EU Should Press for Rights Commitments at Summit Monitoring and protection of the freedom of the press and other human rights and freedoms in Ukraine The access to justice. The freedom from torture and cruel treatment The right for privacy in Ukraine The access to information in Ukraine The freedom of expression in Ukraine Ambassador John Herbst Opening Remarks. Conference “The freedom of speech and human rights in Ukraine – 2003”
Politics and human rights
The draft of the Criminal-Procedural Code
The appeal of advocates Viktor Ageev and Andrey Fedur on the draft of the Criminal-Procedural Code:
We welcome the decision of the Supreme Rada to stop the consideration of the draft of the Criminal-Procedural Code (CPC) prepared by the group headed by Gennadiy Vasilyev.
We want to state with satisfaction that the protests of lawyers, public organizations and the progressive part of MPs against the adoption of this draft were successful this time.
At that, it is obvious that the reform of the criminal-procedural legislation of Ukraine is necessary.
We want to point out once more that the future adoption of the new CPC must not be founded on the anti-democratic draft proposed by Gennadiy Vasilyevs group, and that this draft cannot be improved by introducing the amendments into it. Ukraine needs the CPC created on the absolutely different basis.
At the same time, it is known that on 2 October 2003 G. Vasilyev and his associates will try again to present their “draft” for the consideration by the Supreme Rada. In our opinion, it is inadmissible to permit G. Vasilyev and the persons like him to take part in the development of the draft of the new CPC. It is also inadmissible for the juridical community to ignore the process of reforming the criminal-procedural legislation of Ukraine.
We hope that the story with the draft of the CPC will be a good lesson and will prevent in future the adoption of law drafts without the thorough consideration.
Advocates Viktor Ageev and Andrey Fedur
22 September 2003
“PL” remark: Parliament refused to discuss the draft of the Criminal-Procedural Code and sent the draft for remaking.
The open letter of human rights protecting organizations on the consideration by the Supreme Rada of the draft of the new Criminal-Procedural Code
To V. Litvin, the Head of the Supreme Rada of Ukraine
To MPs of Ukraine
Respected ladies and gentlemen!
We, representatives of Ukrainian human rights protecting organizations, are turning to you with the request to direct the draft the new Criminal-Procedural Code of Ukraine (draft No. 3456-1 of 19 May 2003), which will be considered by the Supreme Rada of Ukraine on 11 September 2003, for the second reading.
The draft of the CPC, one of the most important documents in any state, contains the scores of norms that groundlessly restrict human rights and fundamental freedoms. The draft does not take into account the international obligations of Ukraine in the sphere of human rights protection, establishes the absolute defenselessness of people and gives the carte blanch for the arbitrary and uncontrolled actions of law-enforcing organs.
According to the norms of this draft, it is possible (almost without any problems) to deprive a person of liberty for the commitment of “a socially dangerous action” (Article 118 of the draft) without a court decision (warrant), merely on the basis of the decision of an investigator or another law-enforcing officer. In contrast to the term “crime”, which is defined by the Criminal Code, the definition of the term “socially dangerous action” is not envisaged by the draft, so it can be interpreted differently. So, the law-enforcing organs would have the opportunity to deprive a person of liberty in secret and not to inform anybody about that for a long time. The right for defense, especially during the pre-trial investigation, is essentially restricted, even in comparison with the existing legislation. The right for the meeting with an advocate before the first interrogation is abolished, so an accused becomes completely dependent on the law-enforcers, and the opportunity appears to apply the illegal methods. The secrecy of investigation prevails over all other principles of legal proceedings. Even on the last stage of the investigation the accused have no right to learn, on which proofs the accusation is based (Article 299 of the draft). The control of the activities of the operative militia units is practically liquidated, since Article 76 of the draft prohibits the interrogation of the persons that realize the operative activities about the methods and details of these activities. These innovations will turn the society into the hostages of the unrestricted and unpunished arbitrariness of the operative militia units.
It is also noteworthy that the draft substantially worsens the position of advocates in the criminal cases. The rights of advocates are diminished to the minimum, which would not allow them to fulfill their professional duty. The procedure of the removal of advocates is too simplified, because the draft does not envisage in details the conditions and procedure of this removal. So, the right for defense is violated, and the opportunity appears to remove the advocates, who do not satisfy the prosecution. All this creates a very serious danger of the condemnation of innocent persons.
Thus, the draft of the CPC directly violates the constitutional rights of citizens, in particular, the demands of Article 29 of the Ukrainian Constitution.
By the assessments of a great number of Ukrainian and international experts, this draft of the CPC does not meet the requirements of the International treaty on civil and political rights, the European Convention on the protection of human rights and fundamental freedoms and many other international documents, which stipulate the basic principles of criminal legal proceedings in the democratic countries. The adoption of this draft will become one more barrier between Ukraine and democracy, and this, undoubtedly, will have a negative influence on the integration of Ukraine into the European community.
We do not lose the hope that the MPs will take into account the historical experience, that they will not deviate from the course of the development of the democratic law-abiding state, which is envisaged by the Constitution, and that they will guarantee the observance of the rights and fundamental freedoms of citizens, even of those, who are suspected of some crimes.
Inna Banakh, the charity fund “Povernennia do zhittia” (the Kirovograd oblast)
Volodymir Berezin, the manager of the organization “Bakhmat” (the Donetsk oblast)
Dementiy Bily, the head of the Kherson oblast public organization “The committee of young voters”
Natalya Bimbirayte, the head of the executive committee of the Kherson oblast foundation of charity and health, the coordinator of the NGO coalition of the Kherson oblast “Partnerstvo za prozore suspilstvo”
Natalya Bogrentsova, the editor-in-chief of the informational-analytical edition “Vilny vybir” (Kherson)
Ivan Boyechko, the executive manager of the Sevastopol human rights protecting group
Tetiana Varfolomeyeva, the first vice-president of the Union of advocates of Ukraine
Konstantin Vuzadzhi, the manager of the consultation bureau on human rights of the Union of advocates of Ukraine
Oksana Guzinets-Mudrik, the editor of the independent informational-advertising newspaper “VIKNA”, (Kalush, the Ivano-Frankivsk oblast)
Yevgeniy Zakharov, a co-chairman of the Kharkov group for human rights protection
Olga Zhukovska, the vice-president of the Union of advocates of Ukraine
Ganna Kiyashchenko, the head of the Poltava branch of the Social Service of Ukraine
Natalya Kozarenko, the head of the public reception office of the NGO coalition of the Kherson oblast “Partnerstvo za prozore suspilstvo”
Alla Lepekha, the manager of the charity organization “Chernigiv womens center of human rights protection”
Vlasta Loya, the head of the scientific association “Poshuk” (Uzhgorod)
Katerina Lugova, the Chernigiv public committee of human rights
Andriy Matrosov, the head of the board of the Kherson town association of journalists “Pivden”, the head of the Kherson town press club
Vitaliy Nikitenko, the head of the board of the Kherson town association for the protection of consumers rights “The total action for the support of human rights and democracy”
Oleksiy Svetikov, the head of the Lugansk oblast branch of the all-Ukrainian public organization “The Voters Committee of Ukraine”
Oleksandr Solontay, the head of the Fund of Regional Initiatives (Uzhgorod)
Anatoliy Stasishin, an advocate, the head of the board of the public organization “Podilsk human rights protecting foundation” (Khmelnitskiy)
Alla Tiutiunnik, the president of the Kherson oblast foundation of charity and health, the chief-editor of the newspaper “Vgoru”,
Natalya Shkarupska, the president of the Center of legal and political research “SIM” (Lviv)
Volodymir Shcherbachenko, the head of the East Ukrainian center of public initiatives
Volodymir Yavorskiy, the executive secretary of the Council of Ukrainian human rights protecting organizations.
10 September 2003
Freedom of expression
Two journalists were attacked in Zaporozhye.
This information was communicated by Anatoliy Eriomin, the prosecutor of the Khortitskiy district of Zaporozhye. According to the prosecutors words, on 3 September Sergiy Goncharenko, a journalist of the newspaper “Zaporizhska Sich”, was stabbed with knife in his stomach. “The victim tells that a stranger greeted him in the doorway of his house. The journalist answered the greeting. After this he felt the acute pain in his stomach and saw that he was wounded with the knife”. The journalist got to a hospital, where he underwent a surgical operation. Now his condition is of medium gravity. Eriomin informs that both the victim and editor of the newspaper “Zaporizhska Sich” Oleksandr Veriovkin reckon that the attack was caused by the preparation of the material about the repartition of the property in the sphere of trade and privatization. The criminal case was started after part 4 of Article 296 of the Criminal Code of Ukraine “hooliganism with the application of cold steel”.
On 4 September 2003 Mykola Loy, the a deputy of the manager of the weekly “Dosye” in charge of the questions of sale, was beaten in the Khortitskiy district of Zaporozhye. “Three strangers attacked him in the yard of his house and delivered several blows in his face”, tells the prosecutor of the Khortitskiy district. The criminal case was started after part 2 of Article 296 of the Criminal Code of Ukraine “hooliganism committed by a group of persons”.
It should be noted that both journalists lived in the same house. The second attack took place on the next day after the first one.
In both cases the hooligans did not took from the victims either money or other things.
The oblast organization of the National union of journalists turned to the prosecutor of the Zaporozhye oblast, the head of the militia directorate of the Zaporozhye oblast and mass media: “We have the grounds to believe that these crimes were connected with the professional activities of the victims. The oblast organization of the National union of journalists is turning to leaders of law-enforcing structures with the demand to investigate thoroughly the criminal cases started after the facts of the attacks on the workers of mass media, and to guarantee the safety of journalists”.
Zaporozhye oblast youth public organization “Young Rukh”
"Lvivska gazeta" brought a suit against Sergiy Medvedchuk.
“Lvivska gazeta” brought a suit to the Galytskiy local court against Sergiy Medvedchuk, the head of the State tax administration in the Lviv oblast, and against the tax administration.
The claim was caused by the recent press conference of Sergiy Medvedchuk, at which he made public the commercial and finance secrets of the newspaper using the documents presented by the edition to the tax administration during the regular inspection, thus inflicting the essential moral and material damage to the newspaper.
This information was communicated by Oleg Onisko in the interview to “Deutsche Welle”.
The journalists are sure that the pressure on the newspaper is based on the political motives, especially on the eve of the presidential election, and that this is the reaction to the critical publications about the activities of Lviv tax officers.
“Maybe, in this way Medvedchuk tries to make our newspaper silent”, supposes O. Onisko.
The collective of the newspaper demands the public apologies from Sergiy Medvedchuk and 25 hryvnas of moral compensation, as well as 20 thousand hryvnas from the tax administration. The court consideration will be held in October.
“Lvivska gazeta” began its own journalistic investigation of the activities of the tax officers after the complaints of Lviv businessmen.
Ukraine: EU Should Press for Rights Commitments at Summit
(New York, October 7, 2003) — European Union leaders should use todays summit with Ukraine to secure concrete human rights commitments from the Ukrainian government, Human Rights Watch said today.
The October 7 summit, to be held in Yalta, marks the single most important meeting of the year between the European Union and Ukraine.
Human Rights Watch called on EU leaders to use the summit to seek specific improvements in Ukraines human rights record, particularly in the areas of eliminating torture and ill-treatment of prisoners, guaranteeing freedom of expression, and addressing discrimination against women in the labor force.
“EU leaders should make clear to the Ukrainian government that respect for human rights is a precondition for deepening of relations,” said Rachel Denber, acting executive director of Human Rights Watchs Europe and Central Asia Division. “A high-level meeting of this kind without specific concessions would not only be an important opportunity missed—it would also represent a serious blow to those brave individuals in Ukraine who have risked their personal safety to speak out against abuse.” On a number of occasions, the European Union has publicly acknowledged shortcomings in Ukraines respect of human rights, giving rise to hope that it would use the summit to seek concrete commitments to address them. Most recently, a September 16 statement on the third anniversary of the “disappearance” and murder of Ukrainian journalist Georgiy Gongadze expressed concern about the lack of progress in the investigation into his death and continuing violations of freedom of expression in general.
EU-Ukraine relations have reached a crucial turning point with the impending enlargement of the European Union. As part of its “Wider Europe” strategy, the European Union is currently working on a new framework for relations with its eastern and southern neighbors, including Ukraine—countries that it defines as “not currently hav[ing] a perspective of membership but who will soon find themselves sharing a border with the Union.” Individualized “Action Plans” for each country will form a key component of this process, and include political and economic benchmarks by which to judge progress.
Human Rights Watch called on EU leaders to advance the following specific benchmarks as part of their engagement with Ukraine:
1. To address torture and prison conditions: The European Union should reinforce the recommendation of the Committee of Ministers of the Council of Europe that the Ukrainian government evaluate the degree to which law and practice related to pretrial custody fully guarantee the rights of persons deprived of their liberty. It should insist that custody pending trial be considered an exceptional measure, rather than routine practice, and that police not use administrative detention as a means of detaining individuals when there are not sufficient grounds for holding them as criminal suspects. It should call on the government to ensure that the Ministry of Internal Affairs issue instructions calling on all police officers to strictly observe due process when detaining people.
2. To address violations of media freedom: The European Union should condition any deepening of relations with Ukraine on demonstrable progress by the Ukrainian government in guaranteeing freedom of expression. It should insist that Ukraine undertake sustained and effective measures to prevent and punish official censorship, to eliminate arbitrary administrative and legal actions against television stations and other media outlets, and to end harassment of and violence against journalists.
3. To address discrimination against women in the labor force: The European Union should integrate gender discrimination as a key component of its ongoing dialogue with Ukraine on trafficking of women. It should press for such discrimination to be outlawed and penalized, and assist the Ukrainian government in harmonizing its legislation to meet EU standards on nondiscrimination and equal treatment in employment.
Finally, it should strengthen labor rights conditionality in the EU-Ukraine bilateral market access trade agreements designed to promote Ukraines access to the World Trade Organization.
For more information please contact:
In New York, Veronika Leila Szente Goldston: +1-212-216-1271
In Moscow, Anna Neistat: +7-095-970-4120
In Brussels, Vanessa Saenen: +32-2-732-2009
In London, Urmi Shah: +44-20-7713-2788
Monitoring and protection of the freedom of the press and other human rights and freedoms in Ukraine
The review of the intermediate results of the USA Embassy project “Human rights and the freedom of the press” for March-August 2003 (the report at the conference on 18 September)
Yevgeniy Zakharov, the Kharkov group for human rights protection
On 8 November 2002 Steven Pifer, the second deputy of the USA State Secretary in charge of the questions of Europe and Eurasia, announced the competition of the projects of the Ukrainian NGOs and mass media, which would promote the freedom of the press and the observance of human rights. The goals of the competition: a) increasing the ability of regional NGOs to realize the monitoring and to inform about the violations of human rights; b) informing the public about the international standards on human rights and the freedom of the press; c) strengthening the juridical base of the protection of human rights and the freedom of mass media. The priority of the topics: a) monitoring and informing about the violations of human rights; b) creation of the reference service for rendering the juridical aid to the victims of the violations of human rights or the freedom of speech; c) inspection of prisons and other establishments closed for public, distribution of the information about the upkeep conditions in these establishments; d) informing the public about human rights and the freedom of speech by means of TV and radio features, special columns in newspapers and magazines, consultations and conduction of round tables.
The organizers of the competition received 234 applications. 42 organizations became the winners: they got the grants (6-8 thousand USD each, the total sum was more than 300,000 USD) for the realization of the project “Human rights and the freedom of the press” during the period April-December 2003. The Embassy gave 20 grants for the work in the sphere of the freedom of mass media and 22 grants for the work in other spheres of human rights and freedoms. The grants were distributed after the regional principle: each oblast of Ukraine got 1-2 grants, and I believe that that was an undoubtedly positive feature of the project.
Kharkiv Human Raghts Protection Group (the KhG, in what follows) fulfills the following functions in this project: coordination, collection and distribution of the information, consultations, preparation and conduction of joint actions (the training at the beginning of the project and the conference with the demonstration of intermediate results in September) and the generalization of the results of the work of all partners in the form of intermediate and final reports. In March 2004 the KhG must prepare, print and spread the final report among the governmental and non-governmental organizations.
The draft began from the 5-day training for the participants of the project and other organizations. During March the KhG prepared and printed the book “The freedom of expression in Ukraine-2002” in Ukrainian and English (1000 and 500 copies, 320 and 160 pages, respectively). The training was carried on 29 March-2 April in Kharkov, 89 activists of non-governmental human rights protecting organizations and 10 experts-trainers took part in the training. Representatives of international human rights protecting organizations, such as “Article 19” (the Great Britain) and Helsinki foundation of human rights (Poland), as well as the well-known Ukrainian specialists, were engaged in the training. On 29-30 March the participants of the training attended the lectures “Introduction to the conception of human rights”, “What human rights are?” and “Public reception offices of human rights protecting organizations”. They also discussed the technical and organizational aspects of the project: joint activities and duties of the partners, spreading the information, consultations, reporting and the plans of all organizations taking part in the project. After this the participants divided into four groups and considered the examples of the successful monitoring projects and the plans for further work in the following spheres: the freedom of speech and the press, access to information, access to justice, freedom from torture and cruel treatment. On 31 March-2 April four specialists from the Helsinki foundation of human rights conducted the school on the methods of the monitoring of human rights.
Each participant of the training got the following books and informational materials:
1. “Freedom of expression in Ukraine-2001” (328 pp.)
2. “Freedom of expression in Ukraine-2002” (320 pp.)
3. “Freedom and practices of mass media in Ukraine” (128 n.)
4. The bulletin “Freedom of expression and privacy”, Nos. 3,4 (2000), 1-4(2001), 1-4 (2002), 1 (2003).
5. “Against torture. The UNO international mechanisms” (152 pp.)
6. “Against torture. The Council of Europe international mechanisms” (200 pp.)
7. “Against torture. The review of messages, 1997-2001” (200 pp.)
8. “Freedom of peaceful assemblies and the freedom of associations in Ukraine” (200 pp.)
9. “Observance of human rights in Ukraine-2001” (64 pp.)
10. “Monitoring of human rights. Informational materials”
11. “Fulfillment of the projects on the basis of the USA Embassy grants. Informational materials”
Besides, every participant received the books needed for the work on the project, which had been bought by the KhG: the Russian-English and Ukrainian-English dictionaries of juridical terms, popular juridical encyclopedia, Civil Code of Ukraine that would come into effect on 1 January 2004, reference book with the samples of court claims and other editions.
The monitoring of the freedom of the press was realized on the national (the Institute of mass information (IMI) and the KhG) and regional (16 organizations-partners) levels. The IMI and the KhG used the similar methods in their work. They obtained the data about the informational conflicts from their regional partners, sent their representatives to the places of the conflicts for the ascertainment of details and rendering the juridical consultations, represented the rights of journalists and mass media in court, informed the public about the events through their sites and electronic delivery, generalized the collected information in the monthly electronic editions “Barometer of freedom” (the IMI) and “Freedom of expression in Ukraine” (the KhG) in Ukrainian and English. The IMI cooperated mainly with its own regional correspondents, and the KhG used the materials given by the organizations, who took part in the project, and other organizations: the IMI, Association of professional journalists and admen of the Zhytomir oblast, Kirovograd association “Public initiatives”, Public committee for the protection of the constitutional rights and freedoms of citizens (Lugansk), Kherson, Transcarpathian, Lugansk and Chernivtsy oblast organizations of the Voters Committee of Ukraine, newspaper “Vikna” (Kalush), Poltava media club and so on. As a result, the cases were disclosed of direct or indirect censorship on the side of various organs of state power, as well as the attacks on journalists; several cases on defamation were won. It is noteworthy that the IMI and the KhG supplemented each other: the IMI was mainly occupied with the legal aid, and the KhG – with the analysis and interpretation of the law drafts concerning the freedom of expression.
One of the successful ideas of the project was the organization of the consultations for the participants of the project in the places of their work and in Kharkov. In April-August Oleg Tseluyko, a member of the KhG, visited the organizations-partners in Cherkassy, Poltava, Kremenchug, Sumy, Zaporozhye, Kirovograd, Znamenka, Chernivtsy, Kalush, Ivano-Frankivsk, Lviv, Lutsk, Novovolynsk, Khmilnyk, Khmilnytsky, Ternopil, Uzhgorod, Chernigiv and Zhytomir. There he met, besides the partners, with the representatives of the oblast committees in charge of information (regional branches of the State committee in charge of TV and radio broadcasting), appeal courts, oblast prosecutors offices. In that way he tried to learn the opinion of the second party in the regional informational conflicts in order to establish the reasons of such conflicts. These visits were very useful both for the collection of information and for the increase of the effectiveness of juridical consultations. For instance, the quick collection and distribution of the information about the criminal case after Article 344 of the Criminal Code against seven local newspapers, meetings with the editors of these newspapers and with the representatives of prosecutors office, who fulfilled the order of the General Prosecutors office about the seizure of the newspapers and interrogations of the editors-in-chief, as well as the debates on the prospects of this criminal case drew the public attention to the case, the circumstances of the case were actively discussed in the press, and the violations of criminal procedure were sharply criticized. As a result, in May the case was closed.
The members of the Association of professional journalists and admen of the Zhytomir oblast successfully conducted the regional monitoring of the freedom of speech in all directions: they considered the informational conflicts in the region, rendered the free juridical consultations to journalists and mass media, in particular to those, against whom the claims had been handed to court, and sometimes realized the defense in court processes. Besides, the Association elucidated the generalized results of the monitoring in its own weekly “Media Advocate” (two double issues were published: Nos. 1-2 and 3-4), one of the positive features of which was the publication of court decisions. The Association conducted the monitoring of 13 newspapers of the Zhytomir oblast and got very important results. As a result, they uncovered the cases of meddling into the activities of the editorial boards of local editions on the side of the local power organs, in particular the oblast state administration, that passed some materials to the editorial boards, which materials the newspapers were obliged to print. By the conclusions of the researchers, the local press has the tendency to elucidate the socially important topics (for, example the discussion of the constitutional reform) from one point of view. The alternative opinions are absolutely absent in state mass media and are presented insufficiently in the independent editions. Opposition political figures have no opportunity to publish their views: they can express their opinions only in the party editions, which are subordinated to them. The non-governmental editions publish the materials of the opposition party leaders only as advertisements (and not during election campaigns). In this way the editions justify the publication of such materials in the eyes of the state organs.
The detailed description of the regional informational conflicts was presented by the Kherson organization of the Voters Committee of Ukraine as a result of the monitoring of 10 local newspapers. The same sources, i.e. the local newspapers, were used by the magazine “I” for the analysis of the state of the freedom of speech in the Lviv and Volyn oblasts. All materials on this topic published by three most popular newspapers of the Lviv oblast and three newspapers of the Volyn oblast were analyzed. The results are the following: the Lviv oblast is noticeably more active and open for the press than the Volyn oblast, that Lviv newspapers are richer, which fact influences the quality of the materials, although, all in all, the total level of the materials, in the opinion of the researchers, is very low.
The Sumy oblast committee of youth organizations conducted the sociological poll of the inhabitants of Sumy and several towns of the Sumy oblast: Glukhiv, Lebedin, Okhtyrka and Romny. The poll concerned the transparency of the work of local power organs and the confidence in the press. The results of the poll were distressing: the majority of the respondents did not believe that the Presidential election would be honest, transparent and democratic, and the proportion of positive answers to the question about the possibility of exerting influence on the power through public organizations varied from 51.7% in Okhtyrka to 31% in Lebedin. So, much work should be done to reach the real impact of public organizations on the situation and to change the public attitude to such activities.
Along with the monitoring of the freedom of the press, the participants of the project carried out the monitoring of other rights and freedoms. So, the Kharkov oblast union of soldiers mothers prepared the analytic report on the basis of the results of the monitoring of human rights in the army. The authors of the report gave the classification of the violations of human rights and proposed the ways of liquidation of these violations. Kharkiv Human Raghts Protection Group collected the information about the cases of torture and cruel treatment in militia, penitentiaries and army, analyzed the legislation in order to find the legal norms vulnerable from the standpoint of the possibility of applying torture. The charity fund “Povernennia do zhyttia” analyzed the normative legal acts that concern the AIDS-infected people. The Kherson oblast organization of the VCU conducted the monitoring of the violations of the wide sphere of human rights after the publications in 10 local editions and prepared the systematic register of such violations. The similar work was fulfilled by the Transcarpathian branch of the VCU.
Some partners, in particular the KhG, attended both to the adopted law drafts and the law drafts that were still considered by the Supreme Rada. The comments were prepared to a number of laws and law drafts connected with the topic of the project: “On the introduction of changes to the Constitution of Ukraine”, “On the freedom of consciousness and religious organizations”, “On the struggle with terrorism”, “On the introduction of changes to some laws of Ukraine (in the connection with the introduction of the Law “On the struggle with terrorism”)”, “On the protection of personal data”, “On the freedom of movement”, “On the State register of physical persons”, “On the introduction of changes to some legal acts of Ukraine (concerning the protection of state secrets)” and the draft of the Criminal-Procedural Code. These propositions and remarks were sent to the corresponding Parliamentary committees, placed on several sites, published in the press, in particular, in the newspapers “Dzerkalo tyzhnia”, “Yuridychny visnyk Ukrainy”, “Lvivska gazeta” and the magazine “Korrespondent”. For instance, the analysis of the Law “On the introduction of changes to some legal acts of Ukraine (concerning the protection of state secrets)”, which had been adopted by the Supreme Rada on 9 July, was printed in a number of well-known electronic editions (sites “Maydan”, “Obkom”, “Telekritika”, IMI, KhG), in the newspapers “Dzerkalo tyzhnia” and “Yuridychny visnyk Ukrainy”. Earlier the journalists community and the experts in the sphere of the freedom of expression, including the IMI and KhG, turned to the President with the proposition to veto this law. As a result, the President used this right and the existing version of the Law will not come into effect. The Parliament also took into account some propositions by the KhG on the law draft “On the introduction of changes to some laws of Ukraine (in the connection with the introduction of the Law “On the struggle with terrorism”)”: the legislators removed the most odious norms, which permitted, in some cases, the wiretapping without court warrant and the conduction of the ODA without the institution of a criminal case.
The participants of the project also rendered the direct aid to the victims of the violations of human rights, combining this aid with the enlightenment work (mainly through the publications in the local press) in order to teach the people to protect their rights by themselves. So, during the period under report, 375 persons turned to the public reception office of the KhG, among them 102 persons turned by the electronic mail through the KhG site. Everybody, who tuned to us, got the consultations, and some of them got the legal aid (in the cases, where, in our opinion, the law-enforcing organs violated the human rights). The majority of the complainers are poor people, who cannot afford to pay for advocates services. The complaints concerned the unjust, in the opinion of the complainers, court verdicts or the decisions on civil cases; pay arrears; actions of local power organs connected with the debts for communal services; actions of law-enforcing organs, in particular, the complaints about the application of torture; repressive actions of power organs against the opposition editions and groups, etc. Two cases on pay arrears were successfully completed owing to the claims to the European Court (the claims were prepared by the KhG) connected with the violation of Article 6 of the European Convention of human rights: non-execution of the court decision about the payment of the arrears of wages. The arrears were paid at once after the Secretariat of the Court was informed about the beginning of the communication on these cases. After that the claimants recalled their writ from the Court register. The communication on another claim to the European Court, which was prepared by the KhG after the fact of applying torture in the Kyivskiy district militia precinct of Kharkov, has been started, and there are many chances that this claim will be accepted. Besides, a defamation case against Poltava journalist Druzhinina, which was controlled by the KhG, has been also completed happily in a court: the claim was rejected. There were some other good results: for example, an illegally instituted criminal case was closed after the interference of the KhG. Lawyers of the Podilsk center of human rights went to the towns of the oblast and rendered 285 legal consultations in the consultation centers. The public reception office of the Kirovograd Association “Public initiatives” received 50 clients per moths, which was twice more than it had been planned. The greater part of the people, who turned to the reception office, represented the socially unprotected layers of the population: pensioners, invalids and unemployed. The same situation was observed in the reception offices of other participants of the project: Zaporozhye oblast public organization “Youth Rukh”, “Podilsk human rights foundation”, Congress of businessmen of the Ivano-Frankivsk oblast, etc. The limited time of my speech does not permit to tell about the effective work of other partners of the project: the Cherkassy union of soldiers mothers, newspaper “Yug” (Odessa), etc.
Not all participants of the project presented the information about their activities and prepared the intermediate reports in the proper time (although we see from the reports that the work of, for instance, the all-Ukrainian independent association of judges and the Donetsk fund “Dobrota” was fruitful), so the final conclusions can be done only after the completion of the project. However, one can see even now that the project is rather successful, and many important and useful results were obtained during the work after the project.
Now I want to say several words about the preparation of the generalized intermediate report. The KhG got the intermediate reports about the fulfillment of the project from 24 organizations out of 42, 7 of these reports were, in fact, not reports, but the materials prepared in the course of the fulfillment. Thus, the KhG had the opportunity to generalize only some part of the information. This information is contained in five brochures of A4 format, which were printed in 200 copies and spread among the participants of the conference. One of the brochures includes 17 intermediate reports (“Intermediate reports of the participants of the project”, 56 pp.). The results of the monitoring of the freedom of expression are presented in the brochure “Freedom of expression in Ukraine-2003, January-August” (172 pp.). The booklet “Regional monitoring of the freedom of the press” (40 pp.) holds the materials about Zhytomir, Sumy, Lviv and Lugansk. The brochure “Legal comments” (96 pp.) contains the analyses of law drafts and the comments to them (all materials were prepared by the KhG, except one text by the fund “Povernennia do zhyttia”). The booklet “Monitoring of human rights in Ukraine. Some aspects” (148 pp.) includes the review of the facts of torture and cruel treatment collected by the KhG and its partners during the reporting period, the results of the monitoring of human rights in the army and two regional monitorings of human rights prepared by the Kherson and Transcarpathian oblast branches of the Voters Committee of Ukraine. Besides the KhG prepared the booklet “Freedom of Expression in Ukraine-2003, January-August” (58 pp., this is a partial translation into English of the corresponding Ukrainian booklet) and published the brochure “Observance of human rights in Ukraine-2002” (the translation of the report of the USA State Department). The conferees also have the opportunity to survey the exhibition of other KhG editions and to place an order for the literature they need for their work: we will send this literature by post gratis.
The USA Embassy hopes to widen the Ukrainian network of NGOs that will conduct the monitoring of the violations of human rights and the freedom of the press in the regions. Perhaps, in future this network will be endorsed by such international donor organizations as the UNO Program of development, coalition “Partnership for transparent society”, Foundation “Eurasia”, International Foundation “Vidrodjennia”, National Democratic Republican Institute, European Commission and the Institute “Open Society”.
The access to justice.
Moderator: Olena Volochay.
Plenary report: Igor Koliushko.
Participants of the session:
Oleksiy Kasyan, the President of the all-Ukrainian Independent Association of Judges, the Appeal court, Kyiv. Some aspects of the access to justice.
Arkadiy Bushchenko, the KhG. The access to court of the detained and arrested.
Valeriy Bartash, the Sevastopol human rights protecting group. On the problems of guaranteeing the right for the protection from the criminal accusation and the representation of interests.
Oleksiy Svetikov, the head of the Lugansk branch of the VCU. On the participation of citizens in the assessment of the work of judges.
Nine conferees took part in the discussion.
Five basic aspects of the problem of the access to justice were emphasized in the plenary report: informing the public; the effective system of legal aid; simplification of court procedure; acceleration of court process; optimization of court costs. Judge Oleksiy Kasyan, advocates Arkadiy Bushchenko and Valeriy Bartash mentioned several other aspects: the access to court of the detained and arrested, guarantee of the right for defense, guarantee of the presumption of innocence.
The idea exists of the creation of informational centers in every court, where citizens should be able to get the aid in the form of booklets, brochures and questionnaires, to learn about the order of the work of the court. This idea is considered now by the State court administration.
The access to court decisions is also problematical. One of the ways of the solution of this problem is the publication of all court decisions (except the verdicts issued at the closed trials) on the web pages of the corresponding courts. Yet, for the realization of this idea it is necessary to solve the question about the principles of the search system. Besides, the balance must be reached between the access to the decisions and the right for privacy. In the nearest future the realization will begin of the project of the creation of the Internet gantry, which will solve these problems.
The problem of the effective legal aid exists in all states, especially poor ones, like Ukraine. The lions share of the population does not resort to the services of professional advocates since they cannot pay for these services. MP Zadorozhny prepared the law draft on the state gratuitous legal aid, but this draft was rejected, because it was a priori obvious that the mechanisms envisaged in the draft would not work. Now the Ministry of Justice is preparing the new version of the draft of the law on the gratuitous legal aid.
In order to simplify the court procedure, the draft of the Civil-Procedural Code introduces the new institutes, such as the court errand (borrowed for the German experience). The authors of the draft hope to shorten the number of court cases approximately for one third. The draft of the CPC also envisages issuing a court verdict in the absence of the parties (after the notification and search of the parties). As to the acceleration of court process, it should be noted that the role of the preliminary court sittings should be increased.
The problem of financing the court activities is extremely important. Now a citizen, who turns to court, must pay for his every step: state duty, getting the court decision, copying the decision, copying the extracts from the case materials, transcript of the sittings, expertises, etc. All these expenses must be paid from the state budget, but that is impossible today. The group that is working at the draft of the CPC proposed to introduce the procedure to the civil process, which procedure already functions for several years in the economic courts: the advance payment by the court administration for the informational and technical maintenance. This idea is partly endorsed by MPs. The section “Court expenses” of the CPC will be discussed during the third reading of the draft.
The participants of the conference pointed out the drawbacks of the operating laws concerning the detention and arrest, as well as the realization of the right for defense at criminal accusation. They also criticized the corresponding norms of the draft of the Criminal-Procedural Code. The opinion was expressed that the drafts of the procedural codes did not agree with the norms of the international agreements signed by Ukraine, so, the Ukrainian legislation would not meet the international standards, and this would cause the complaints to the European court of human rights.
A very vivid discussion was evoked by the story about the action carried out by Lugansk dwellers. The goal of the action was to influence the decision of the Parliament about the termless election of judges. In the opinion of the conferees, such actions are caused by the absence of the procedures of discussing the candidates and by the fact that MPs have no information about candidates professional activities. Besides, the participants believe that protests against the election of some concrete judges must not turn into the expression of disrespect to justice as a whole. The support of the authority of justice in the nihilistic Ukrainian society is one of the most important tasks of human rights protecting organizations.
The freedom from torture and cruel treatment
Moderators: Mykola Kozyrev and Andriy Sukhorukov.
Plenary report: Gennadiy Udovenko.
Participants of the session:
Yevgeniy Zakharov, the KhG. The campaign against torture and cruel treatment.
Arkadiy Bushchenko, the KhG. The problems of investigation of the complaints about torture during the inquiry and investigation.
Oleksandr Stepanenko, “Zeleny svit”, Chortkiv. Silent truth does not frighten anybody (on the problem of the illegal violence applied by militia).
Mykola Kozyrev, the Public committee for the protection of constitutional rights and freedoms of citizens, Lugansk. Torture in the context of dehumanized economics.
Irina Sarancha, the NGO “Parostok”, Vinnitsa. The protection of the handicapped in the Vinnitsa oblast.
Mykola Korobko, “Zeleny svit”. Non-freedom from torture is generated by the fear of the irresponsibility.
Nine conferees took part in the discussion.
Unfortunately, frequently the cruel treatment and application of torture remain unpunished or, what is worst of all, are regarded as a norm.
Here is the list of torture and other kinds of cruel treatment that are applied regularly:
– torture and cruel, inhumane treatment during the inquiry and preliminary investigation applied to the persons suspected in the commitment of a crime;
– the conditions of the upkeep in the preliminary prisons and some other penitentiaries;
– the so-called “dedovshchina”, when older soldiers maltreat the younger soldiers and humiliate them.
The main reason of applying torture to the suspected is the stable prejudice of the society that any methods, even cruel ones, may be used for the extermination of criminality. The investigation of the majority of crimes is based on the confession of the suspected. Therefore, in spite of the declarative adherence to the ideas of human rights, both the legislators and the persons, who apply the laws in practice, do not want to change the existing laws and law-applying practices. This situation hampers the effective prevention of torture, on the one hand, and creates the auspicious conditions for the concealment of torture applied by militia, on the other hand. The latter factor gives the opportunity to represent the problem as insignificant both to the Ukrainian society and to the international institutions.
There are the factors, which create the favorable conditions for the application of torture. The most essential problem is the weakly developed national legislation on the arrest by militia and placing under militia guard. This thesis is not adequately reflected in the operating laws. The efficient mechanisms of the protection from the arbitrary arrest by militia do not exist, since the legal conditions of the arrest without court warrant are not envisaged sufficiently clear. It should be noted that, despite the fact that the illegal detention and arrest are regarded as crimes by the Ukrainian legislation (Article 371 of the Criminal Code), the court practices connected with the application of this legislative norm almost do not exist.
In June 2001 the serious reform of the criminal-procedural legislation was carried out in Ukraine, in particular, every detained must be taken to court now. Other important changes concerning the preliminary incarceration were introduced too. Yet, the results of this reform were not so significant, as it was expected.
According to the Constitution, any detention may be realized, as a rule, after “a court decision”. The Ukrainian Constitution permits the arrest without warrant only “in the case of absolute necessity in order to prevent or stop a crime” (Article 29). Thus, the innovations introduced to the criminal-procedural code do not stipulate this demand distinctly, so the arrest without warrant still remains a rule, but not an exception.
Besides, the legislation permits an investigating officer to approve the detention of a suspect for the term up to three days without court warrant. So, an investigating officer must not obtain the court warrant, in spite of the absence of “absolute necessity”. This provision obviously does not agree with the demands of the Constitution, but the overwhelming majority of arrests are realized on the basis of the resolutions of investigators, and such detentions are considered by the law-enforcing organs as one of the effective methods for conducting the investigation.
The Ukrainian Constitution states that a detained must be brought to court during three days, but not later. Yet, as a rule, the detained are not brought to court earlier than in three days, so in practice the deadline turns into the usual term. Militia is not responsible for the ungrounded delay, if the deadline was not exceeded. Judges are not interested whether the term of keeping under arrest is well-grounded. A judge also can prolong the term of detention of a suspect up to 10 days (part 8 Article 165-1 of the CPC). Besides, in the accordance to the legislation, militia has the right to keep a detained under arrest for the term more than three days under the special circumstances envisaged by law (part 4 Article 165-1 of the CPC).
Such long and uncontrolled term of keeping under arrest gives the opportunity not only to apply torture, but also to conceal the traces of torture. The inexact definition of the legal conditions of the detention by militia, legal opportunity to act without court decision (and to evade the check of the reasons for the detention), absence of the real responsibility for the illegal detention result in the situation, when militia detains people readily and without serious grounds. Such detention is used just for the creation of the conditions for obtaining the confession, in particular with the application of torture.
The improvement of the situation in this sphere depends both on the improvement of the legislation and on the change of the attitude of judges to the questions of the illegal arrest and detention. The change of advocates attitude is also very important, since the court check of the validity of a detention is a new sphere of juridical practices, and our advocates have neither the sufficient knowledge about the international standards, in particular the practices of the European Court of human rights, nor the experience in the cases of such kind.
Another important problem is the right for the access to advocate and medical aid. The timely access to advocate gives the opportunity to avoid torture, as well as the opportunity to disclose the cases of applying torture and to take the appropriate measures for collecting the proofs and starting the investigation. The quick reaction of an advocate is vitally important in such cases.
The legislation and law-applying practices create serious obstacles in the access to advocate. The admittance of an advocate to his client depends on the special decision of investigator. The investigators, who do not want to admit the advocates, refer to various rules (for example, the necessity to get the permission of a senior officer) that are absolutely illegal and unjustified. Often the law-enforcers try to make the detained to refuse from advocates aid using the same methods as for obtaining the confession. Besides, the problem of rendering advocates aid to poor suspects exists, because the Ministry of Justice practically does not pay for the work of the advocates, who are given gratis by the state.
Thus, the influence of investigating officers on the solution of the question about the access to advocate must be liquidated, the procedure of the access must be simplified and the real opportunity for confidential contacts of suspects and their advocates must be guaranteed.
According to the Ukrainian laws, the violation of the right for defense and meddling into the work of an advocate are regarded as crimes. However, these norms are rather new, they came into effect on 1 September 2001, so the court practices concerning such crimes do not exist yet. The precedents in this sphere will also facilitate the access to advocate, thus improving the situation with torture.
As for the access to medical aid, this problem is practically not discussed either in special literature or in the press. The legislation does not contain any provisions about the access to medical aid. Militia officers, investigators, judges and advocates, to say nothing about the suspects, know almost nothing about the standards of the European committee for preventing torture and cruel treatment (the CPT, in what follows). So, the enlightenment activities in this sphere are extremely important, as well as the development of the amendments to the legislation, which would guarantee the free access to medical aid.
Another essential problem is the impunity of those, who apply torture and the irresponsibility of the state as a whole. The main reason of this is the slowness and ineffectiveness of the investigations of the cases of torture. The prosecutors office, which, according to the law, must conduct the investigation in the case of applying torture to a suspect, fulfills this duty very unwillingly. Most often the investigators content with the perfunctory check of the complaint, and if the persons, against whom this complaint was handed, deny their guilt, then the investigation is terminated. Very frequently such complaints are rejected without the proper study of circumstances.
A suspect has the right to appeal to court against the rejection of his claim or the termination of the case. The court has the right to abolish the corresponding resolution, but may not institute a criminal case. Owing to the slowness of court procedure a suspect can obtain the court decision (even the favorable one) only in several months.
However, even if the criminal case was started, the law gives the opportunity to the prosecutors office to be passive during a long time. The laws stipulate the term of investigation of criminal cases, but during the investigations of torture the prosecutors office prefers to apply the legal norm permitting to conduct the investigation without the restriction of the term “if the person, who committed the crime is unknown”. The prosecutors office applies this norm even if the victim names the persons, who tortured him.
During the investigation of the cases of torture the problem also exists connected with the access to the independent experts. The direction of the investigation completely depend on the attitude of the investigating officer and the general policy of the prosecutors office. Of course, the conclusions of medics are fundamentally important, but there exists the possibility of getting the conclusions unfavorable for the victim. The legislation contains the clause, according to which an advocate has the right “to get the written conclusions of experts on the questions that demand the special knowledge” (Article 48 of the CPC). Yet, firstly, law does not envisage the status of these conclusions, and, secondly, according to the letter of the law, this right is rendered only to an advocate, who defends the interests of the suspect, but not to some other representatives of the victim.
Moreover, now in Ukraine the forensic expertise may be carried out only by the personnel of state expert establishments. Thus, the independent expert establishments, which existed in Ukraine during last 7-8 years, practically disappeared now. This fact gives the opportunity to the investigation organs to exert influence on the experts, and the victims of torture and their advocate have no effective methods for the control of the objectivity and validity of expert conclusions, as well as the possibility of obtain the alternative conclusions.
Another serious problem is the conditions of upkeep of the detained in the preliminary prisons and other places of preliminary incarceration, in penitentiaries, prison hospitals, disciplinary battalions and other closed establishments. According to the conclusions of the CPT, these conditions do not meet the CPT standards. It is necessary to analyze the Ukrainian legislation and law-applying practices connected with the upkeep conditions from the viewpoint of the CPT demands and standards.
The CPT visited Ukraine and handed the reports on this question to the Ukrainian government in 1998, 1999 and 2000. These reports were published only on 10 October 2002 and were not sufficiently elucidated in mass media, as well as the responses of the Ukrainian government to the reports. The CPT recommendations were not analyzed and made public.
Thus, it is necessary to change both the legislation and the law-applying practices. The three-year project started by the KhG is devoted to this problem.
The right for privacy in Ukraine
Moderator: Yevgeniy Zakharov.
Plenary report: Roman Romanov.
Participants of the session:
Maksim Shcherbatiuk, the Internet Association of Ukraine. The right for privacy in the Internet: reality and prospects.
Yevgeniy Zakharov, the KhG. The system of registration of physical persons and the right for privacy.
Inna Banakh, the fund “Povernennia do zhyttia”, Znamenka, the Kirovograd oblast. The analysis of the Ukrainian legislation on the AIDS-infected persons in the context of the observance of the right for privacy.
Eight conferees took part in the discussion.
The right for privacy is somewhat new phenomena in our society. Naturally, in the Soviet times nobody could even dream about the inviolability of private life, correspondence, dwelling, etc. Yevgeniy Sverstiuk correctly called this “a callosity on the public consciousness”. That is why the court claims against the violations of privacy are so rare even now, that is why the Parliament approves the law drafts on the registration of physical persons, although these laws undoubtedly violate the right for the protection of personal information, which is stipulated by the Constitution.
The conferees were familiarized with the modern demands concerning the observance of the right for privacy and considered the basic provisions of the draft of the law on the monitoring of telecommunications and other new legal acts about the collection of information from the communication channels, the law drafts on the registration of physical persons, on protection of personal data, etc. The reporters seriously criticized these law drafts in the connection with the violations of privacy envisaged by the drafts. The unified state automatized passport system is now actively introduced, that the exchange of passports has already begun, although this system is not stipulated by law yet. The tendency exists to use the tax identification number of a person as multi-purpose universal code that will be used in all documents of the person. The opinion was expressed that the realization of this conception would turn Ukraine into a police state, since this would give the law-enforcing structures the opportunity to collect various information about citizens without their consent and the motivation of the purpose of this collection. So, the human rights protecting organizations must analyze the corresponding law drafts and prepare the propositions for the liquidation of these drawbacks.
The participants of the conference briskly discussed the question of the access to medical information on a person, the peculiarities of such access in the case of grave diseases, such as, for example, AIDS. This discussion revealed a number of stereotypes that still are not overcome by public consciousness. One of the conclusions of this discussion was the necessity of familiarization of the public with modern approaches to the right for privacy, in particular, the right for the protection of personal data. The existing draft of the law on personal data must be essentially changed, and, what is the most important, this draft must be considered first of all, before the drafts concerning the collection of personal information. The drafts connected with the processing of personal information must be considered from the viewpoint of the right for privacy.
The access to information in Ukraine
Moderator: Taras Shevchenko, “Internews”.
Plenary report: Yevgeniy Zakharov.
Participants of the session:
Sergiy Fedorynchyk, “Zeleny svit”. Drawbacks of the state conception of informational policy.
Oleksandr Stepanenko, “Zeleny svit”, Chortkiv. Concealment of information as a basic method of self-protection of the corrupted authorities (the misuses in the enterprise “Ternopillis” are described as an example).
Oleksandr Bukalov, “The Donetsk Memorial”. Accessibility of information and penitentiary reform: legislation and law-applying practices.
Yevgeniy Bayramov, the Lugansk branch of the VCU. Access to the information on the budget of the organs of local self-rule: the situation in Severodonetsk.
Oleg Tseluyko, the KhG. The development of the culture of the access to information: the European experience .
Three conferees took part in the discussion.
Owing to the development of the Internet and the computer legal systems, the access to the parliamentary information in Ukraine has essentially improved. Free sites appeared (for instance, rada.kiev.ua) that contain all legal and the majority of open sublegal acts. The computer legal system “Liga-Zakon” includes all normative acts registered by the Ministry of Justice. Yet, this system is chargeable and rather expensive, so only a small number of public organizations can use it. The texts of many law drafts also became accessible, so the non-governmental organizations got the opportunity to exert influence on the legislative activities.
The access to information that is possessed by the organs of executive power is unsatisfactory. The progressive laws “On information”, “On state secrets” and other laws, which had been adopted in the first half of the 90s, were almost brought to nothing by the sublegal acts and the law-applying practices, the main feature of which is the wide use of the illegal security classifications restricting the access to information, in particular, such classifications as “for service use only”, “not for printing” and “not for publishing”. These classifications are not envisaged by laws. The procedure of work with the documents “not for printing” and “not for publishing” is not stipulated by any registered normative acts, and the Instruction on the procedure of work with the documents “for service use only” is written in the spirit of the old good totalitarian times and practically blocks the access to such documents.
The state guards “the information that is a state secret or other secret stipulated by law, confidential information owned by the state, open information that is important for the state, independently of where this information circulates, as well as the open information important for the society or separate persons, if this information circulates in the organs of state power and local self-rule, National Academy of Sciences, Armed Forces, other military units, law-enforcing organs, state enterprises, state establishments and organizations”. The List of the informational items, which are guarded by the state, concerns only the information that is related to state secrets and confidential information owned by the state (classified as “for service use only”). However, the lists of the documents “for service use only” has not been published yet, and the List of the informational items that are state secrets was published immediately after its approval in 1995, but later it was made secret, as well as the later additions to this list. Thus, the decisions on the restriction of the access to information is taken on the basis of the opinion of an official, who is responsible for the secrecy of this information, but not on the basis of open legal acts, as it should be done in a country, which is a member of the Council of Europe.
In order to learn how widely the illegal classifications are applied, Kharkiv Human Raghts Protection Group analyzed all documents that were adopted by several central agencies in 2000-2002 and counted up the number of the classified documents. We used the computer system “Liga-Zakon” and learned that the greatest number of the classified documents was issued by the President of Ukraine and the Cabinet of Ministers. At that, the President applied the classification “not for publishing”, the Cabinet of Ministers – “not for printing”, and various state agencies – mainly “for service use only”. The titles of all documents “for service use only” (from which the substance of a document can be understood) are contained in the database. Yet, the documents “not for publishing” and “not for printing” have only numbers, so it is impossible to comprehend what type of information they concern.
A great number of the nameless documents issued by the President and the Cabinet of Ministers stimulated us to scrutinize the dynamics of the adoption of such documents during the longer period. It appeared that the wide application of the classifications “not for publishing” and “not for printing” had begun in 1994. We observed the obvious peaks of the number of such documents. Although there is no correlation between these peaks, but more often they coincide with the election campaigns and all-Ukrainian referendums. The proportion of such documents reached 7% of the total number. It is also noteworthy that the President classifies much more documents than the Cabinet of Ministers or any other agency. And the growth of the number of the documents “not for publishing” in 2002 coincided with the appointment of Viktor Medvedchuk to the post of the Head of Presidents Administration. In September 2002 the proportion of “not for publishing” documents signed by the President made almost 10% of the total number of the issued documents.
The participants of the conference gave many examples of the illegal security classifying of socially important information both on the central (the plan of the actions “Ukraine-NATO”, agreement on the gas consortium, the Regulations on the state administration, information on the increase of salaries of the members of the Supreme Council of Justice, etc.) and local levels (destruction of the run of the Ternopil newspaper “Svoboda” with the information given by the deputies commission of the oblast council about the misuses in the company “Ternopillis”, concealment of the town budget by Severodonetsk town administration and so on). At the same time, the participants remarked that there were some positive changes too: some organs of state power and local self-rule became more open, they informed the public about the taken decisions on their own sites, at the public hearings, etc.
In order to improve the situation as a whole it is necessary to adopt the modern law concerning the access to information and to cease the practices of the illegal use of security classifications. Public must permanently and thoroughly control the situation with the access to information.
The freedom of expression in Ukraine
1. The freedom of expression in Ukraine
Moderator: Roman Romanov, the International Foundation “Vidrodjennia”.
Plenary report: Mykola Tomenko.
Participants of the session:
Natalya Ligachova, “Telekritika”. The right for information as a precondition of the professional activities of journalists. Ways and means of protection and self-protection.
Valeriy Ivanov, the Academy of the Ukrainian press. Monitoring of the state of the freedom of the press in Ukraine.
Oleksandr Chekmyshev, a deputy manager of the Institute of journalism of Kyiv National Taras Shevchenko University, the head of the committee “Rivnist mozhlivostey”. Manipulations in the sphere of mass communication and the technologies of counteraction.
Oleksiy Svetikov, the head of the Lugansk branch of the Voters Committee of Ukraine. The European perspective as a way for the protection of the freedom of speech: the Lugansk experience.
Jan Chaykovskiy, the philosophic and culturology magazine “I ”, Lviv. The myth about the freedom of speech in Ukraine.
Mykola Kozyrev, the Public committee for the protection of the constitutional rights and freedoms of citizens, Lugansk. The freedom of speech on the background of the monitoring of district newspapers of the Lugansk oblast.
Olena Volochay, the all-Ukrainian Independent Association of Judges. The institute of respect to court.
Oleg Tseluyko, the KhG. What will be the jurisprudence of the European court on human rights concerning the freedom of expressing the opinions in the Internet?
Five conferees took part in the discussion.
One can observe the informational war of the Ukrainian power against its own people. More and more frequent journalists obtain the information from one source, and the informational messages of different TV channels are like as two peas in a pod. So, the monitoring of the editorial policy is necessary to learn whether the messages satisfy the modern informational standards. On the other hand, the power wages the war against the journalists, who try to fulfill their professional duty conscientiously. The political opposition is isolated from the most influential mass media; this fact was confirmed by the monitoring conducted by the Academy of the Ukrainian press. The presidents clique brutally meddles in the work of the organ, which, according to its status, should be absolutely independent – the National council in charge of TV and radio broadcasting. The situation in the Parliament does not allow to hope for the adoption of new, perfect laws. The main goal today is the prevention of the approval of the law drafts, which groundlessly restrict human rights and fundamental freedoms, and the elaboration of new drafts for the future. The self-regulation of journalistic community must be also reformed: in particular, the trade unions should unite the majority of journalists and protect journalists professional rights.
The future election campaign is the most important question today. The efforts of the society should be concentrated on the conduction of honest and transparent election. The Council of Europe offered to send the long-term monitoring mission for the supervision over the Presidential election. The role of mass media during an election campaign is extremely significant.
So, we need:
– the systematical monitoring of the freedom of expression, the regular consultations for mass media and journalists and the legal protection of them;
– the analysis of all court practices concerning the application of censorship;
– the familiarization of the society with the law against the censorship, which was adopted in the beginning of April 2003;
– the adequate reaction of the society to every violation of the freedom of speech;
– the special program of legal support of mass media in the connection with the coming election campaign (if the election would not be abolished, of course);
– the moratorium on tax and other checks of mass media (like those that were conducted during the last election).
Ambassador John Herbst Opening Remarks.
Thank you Mr. Zakharov for the warm welcome and introduction. I am honored that the Kharkiv Human Rights Protection Group asked me to speak. Let me say thank you to the other organizers of this conference, as well as to the leadership of this great university for providing us with a venue for this dialogue. I arrived in Ukraine less than a week ago. It is apt that my first public appearance would be at the 2003 conference on Media Freedom and Human Rights in Ukraine. After all, the United States constitution is devoted to the principles that this conference will address. My interest is in improving the U.S.-Ukrainian relationship to the fullest extent possible. That is best achieved by encouraging Ukraine to realize the democratic objectives that it has laid down and to practice the human rights principles that it has embraced by signing the European Convention on Human Rights. Respect for these basic freedoms is an essential part of the advance to democratic freedom and prosperity.
Ukraine has repeatedly stated its aspiration for integration into Europe, for membership in NATO and the European Union. . To achieve its goals of membership in these organizations, Ukraine must ensure that all its citizens enjoy media freedoms and fundamental human rights. Ukrainians must not be satisfied with their countrys progress until they live in a country free from “temniks”, for example. As some of you may know, I have spent much of my life working in and on the post-Soviet area. In this context, Ukraine has managed some real achievements in the development of a democratic society. At the same time, Ukraines human rights record in 2003 continued to raise concern. This week marks the third anniversary of the disappearance of Heorkiy Gongadze, and we still do not know what happened. The recent death in custody of Minister of Interior officer Ihor Honcharov, who had been scheduled to testify in court on the murder of Gongadze, will continue to spark interest in the human rights case of the journalist. Future events in the life of harassed judge Yuriy Vasylenko of the Criminal Division, Kiev Court of Appeals and his wife, lawyer Tetiana Montian, require national and international monitoring attention. In addition, we will continue to monitor events in the high profile lives of human rights defense attorney Andriy Fedur, and of the wife and mother of the slain journalist Gongadze. The controversial vehicular death of journalist Volodymyr Yefremov and attacks on journalists throughout Ukraine continue to cause concern. With the 2004 presidential election, Ukraines treatment of its journalists will continue to be a point of international scrutiny.
With presidential elections in Ukraine quickly approaching, Ukraines aspirations of European integration hinge on a free, fair, and transparent 2004 presidential election in Ukraine. Outside observers will expect presidential campaigns and the election itself to be conducted based on the very freedoms you are espousing at this conference.
On the positive side, in May 2003 the Government of Ukraine closed the criminal case against numerous Ukrainian publications that alleged defamation of President Kuchma. When parliament votes in September, amendments to the law on TV and radio broadcasting should not restrict the re-broadcasting of the BBC, the Voice of America and Deutsche Welle in Ukraine. Moreover, the Government of Ukraine should cease to put pressure on Western broadcasters and their Ukrainian partners.
Also encouraging is that the State Bureau of Religious Affairs (SBRA) continues to show signs of real governmental representation of all the countrys religions and various believers. Adherents of many faiths have found comfort in freely expressing their beliefs in Ukraine.
During twelve years of independence from the Soviet Union, Ukraine has come a long way. But make no mistake; there is a long way to go. This coming year offers real opportunity for Ukrainians to bring greater democracy to Ukraine. Americans stand ready to support Ukrainians to help realize goals of freedom. Now, I am here to listen, to form impressions, and in the coming years, to work with Ukrainians toward improved fundamental freedoms and human rights in Ukraine. I will work with you to support the goals Ukraine has articulated for itself: a future of independence and democracy in Ukraine. I look forward to working with you to make Ukraine a better place for all. Thank you very much.
In what follows we are presenting the short resumes of the sessions.
Conference “The freedom of speech and human rights in Ukraine – 2003”
On 18-19 September the conference “The freedom of speech and human rights in Ukraine – 2003” was held in the institute of the post-graduate study of the Kyiv National University. The conference was organized by the USA Embassy in Ukraine and Kharkiv Human Raghts Protection Group with the goal to represent the state of human rights in Ukraine in the first seven months of 2003 and the situation with some most fundamental rights and freedoms: the freedom of expression, the right for the access to information, the right for privacy, the freedom from torture and cruel treatment, as well as the right for the access to justice. Besides, the conference had to demonstrate the intermediate results of the work of 42 organizations – the winners of the competition “Human rights and the freedom of the press” conducted by the Embassy.
The conference consisted of six sessions: the first plenary sitting was devoted to the general assessment of the state of human rights in Ukraine, next five sessions – to the consideration of the problems in the above-listed spheres of human rights. The organizers planned to represent different points of view: of the power, civil society, international experts, so they invited the representatives of all these groups to deliver the 20-minute reports. Yet, we could not listen to the assessment of the power organs: neither vice-speaker Oleksandr Zinchenko nor vice-prime-minister Dmytro Tabachnik, who had agreed to take part in the conference, came there. Valentina Dovzhenko, the head of the state committee in charge of the problems of youth, who had promised to the organizers to take part in the conference, refused in the last moment and sent first deputy Zelinskiy instead of her, who spoke only about the work of his committee. Thus, at the first session the participants of the conference (all in all, more than 200 representatives of Ukrainian state and non-governmental institutions and international organizations took part in the conference) listened to the speeches of USA Ambassador John Herbst, international expert Oleksiy Korotayev (Geneva, the International Ligue of human rights), Ashley Gotier, a deputy of the general councilor of the U.S. News & World Report (Washington) and Yevgeniy Zakharov. In my opinion, the refusal of the top Ukrainian authorities from the participation in this conference and the speech of the new USA Ambassador vividly demonstrated the real, and not pretentious, attitude to human rights. The speech of Ambassador Herbst is quoted below. Oleksiy Korotayev expressed the anxiety of the international institutions, in particular, the profile committees of the UNO, about the situation with the application of torture in Ukraine, ungrounded restrictions of the freedom of expression, in particular the censorship in the form of “temniks”, and the illegal restriction of the access to information. He also remarked that some drafts of Ukrainian laws were imperfect and endangered human rights, for example, the drafts of the Criminal-Procedural Code and of the laws on the registration of physical persons, on the monitoring of telecommunications, etc. Ashley Gotier told about new tendencies in the application of the First Amendment to the USA Constitution in the context of media-legislation and court practices. Her speech was very instructive for the Ukrainian lawyers and journalists, who understood the American attitude to the freedom of expression. I presented the report prepared with the assistance of Olga Zhiriachenkova, a worker of the Embassy. The report described the intermediate results of the USA Embassy project.
The agenda of the work of subject sessions was the following. The reporters for 20-30-minute speeches and experienced moderators were invited to the sessions. The persons, who wanted to deliver the speeches shorter than 10 minutes had to agree beforehand the topics of their speeches with the organizers; after this the topics were included to the agenda. Five minutes were given to everybody, who wanted to take part in the discussion.
Taking into account the great amount of work fulfilled by Mykola Tomenko, the head of the Parliamentary committee in charge of the freedom of speech and information, and by Gennadiy Udovenko, the head of the Parliamentary committee in charge of human rights, national minorities and interethnic relations, the organizers asked them to deliver the basic reports at the corresponding subject sessions. The basic report at the session “The access to justice” was delivered by Igor Koliushko, the manager of the Center of political and legislative reforms, a scientific consultant of the Supreme Rada committee in charge of the policy of law. Roman Romanov delivered the basic speech at the session “The right for privacy”, Yevgeniy Zakharov – at the session “The access to information”. It is noteworthy that Mr. Udovenko took into account the absence of the review report on the state of human rights in Ukraine from the viewpoint of the state and, on the first day of the conference, stated in his report the official position of the state concerning the protection of human rights. He mentioned some positive moments: the adoption of the Constitution, introduction of the institute of ombudsperson and the successful work of this institute, adoption of a number of the progressive laws, joining the Council of Europe, signature of several international agreements of the Council of Europe, opportunity to turn to the European Court of human rights and the first successful cases in the Court, improvement of the situation in the spheres of interethnic and inter-confession relations and in other spheres. Mr. Udovenko also described the negative moments and the existing problems. The most important problems, in his opinion, are the low level of legal knowledge and the non-fulfillment of laws. I reckon that the report of Gennadiy Udovenko was very substantial and intelligible, he made an important contribution to the consideration of the state of human rights at the first session.
I think that the agenda of the conference suggested by the organizers was rather sensible. The conference was interesting and informative. The plenary reports were pithy, the discussions were very dynamic. International expert from Geneva Oleksiy Korotayev delivered very helpful speeches during the discussions at all sessions. He permanently compared the problems existing in Ukraine with the common European-Atlantic concepts of human rights. The level of almost all speeches at the conference was high, which was confirmed by assessments of the conference.
The results of the fulfillment of the USA Embassy project also excited a great interest: 200 copies of the printed materials presented at the conference were taken by the participants. In my opinion, it was the most successful conference on human rights, and I am glad that Kharkiv Human Raghts Protection Group took part in the organization of the conference. I want to express my gratitude to the workers of the Department of the press, education and culture of the USA Embassy for their selfless work for the conference.
In the end of the first day of the conference the Reception was held by Ambassador John Herbst. The participants of the conference got the pleasant opportunity to communicate with Ambassador Herbst, other workers of the Embassy and colleagues.