“Prava Ludiny” (human rights) monthly bulletin, 2004, #05
Human rights in Ukraine: annual report of Amnesty International for 2003. Politics and human rights
Mukachevo: Ukrainian ombudsperson demands to restore the rights of teachers and medics dismissed for their political views. Implementation of European Law
Draft of the Criminal-Procedural Code of Ukraine contradicts the standards of the Council of Europe. The right to a fair trial
Commentaries to the draft of Criminal-Procedural Code of Ukraine presented for the second reading in the Supreme Rada Freedom of expression
Appeal of the Kharkov group for human rights protection New know-how in the sphere of protection of human rights and freedoms. Army
On the work of public reception office of the Kharkov group for human rights protection in 2003 Deported peoples
In memory of Danylo Shumuk Vasyl Striltsiv died
Human rights in Ukraine: annual report of Amnesty International for 2003.
Torture and cruel treatment
Many complaints were received against torture and cruel treatment on the side of militia officers and prison guards. In April ombudsperson Nina Karpacheva informed in her annual report to the Ukrainian Parliament that during two past years about 12 thousand persons complained that they had underwent torture or cruel treatment, most often in the course of interrogations with the purpose of obtaining confessions. Militia officers beat the detained, suspended them in uncomfortable positions by handcuffed wrists, suffocated them with plastic bags and gas masks and tortured them with electric current. As a result, many of the detained got serious traumas; several persons died. Frequently the detained were deprived of the right to choose advocates or doctors by their own wish, as well as the right to inform their relatives about the detention.
- In September the UNO committee of human rights issued the Resolution that the trial against Azer Gariverdy-ogly Aliev, who was condemned to death penalty, did not correspond to the standards of fair trial. Advocate was not admitted to him during first five months of imprisonment. Aliev was arrested in the town of Makeevka on the suspicion of murder committed in August 1996, and in April 1997 the capital sentence was pronounced to him. Azer Gariverdy-ogly Aliev insists that he and his pregnant wife underwent cruel treatment and torture on the side of militia officers during four days of interrogations after the arrest.
- According to the available information, in the middle of October the prosecutor of the Donetsk oblast instituted the case after the facts of torture in penitentiary establishment No. 120. The prison guards tortured a 25-years-old convict; as a result he got the injuries of both feet, which caused the amputation. The incident occurred because the prisoner refused to obey the orders of the guards.
- According to the available information, in November 20-years-old Sergey Berdiugin died in a hospital in Odessa as a result of cruel treatment during the preliminary investigation.
European Court of human rights
In April the European Court of human rights took the decision in favor of six persons, which, in the 90s, were kept in the cells for the condemned to the capital punishment in several Ukrainian prisons. These persons handed to the European Court the complaints against cruel, inhumane and degrading upkeep conditions in custody. In the case of Borislav Poltoratskiy the court made the conclusion that the upkeep conditions caused «the considerable moral sufferings, which humiliated his humane dignity» (paragraph 146). The Court resolved that he, together with other convicts staying in this cell in the Ivano-Frankivsk prison, «was locked in the cell of extremely small size for 24 hours per day; windows of the cell were closed, so the natural light did not get into the cell; the possibility to walk outdoors was absent, as well as the possibility to do something or to communicate with other people» (paragraph 145).
Violence against women
The violence in family is still very widespread in Ukraine, although the data of the official statistics on this problem are absent. In the end of 2002 Ukraine informed the UNO committee of human rights about the measures taken for the prevention of violence in family, in particular, adoption of the Law on prevention of violence in family, which contained the list of state organs and agencies responsible for the conduction of prophylactic measures, and introduction of new procedures for the investigation of violence in family, creation of the network of special establishments for the victims of violence in family, such as crisis centers, refuges, centers of social rehabilitation, etc. In spite of all these positive measures, women, who want to resort to the legal protection, come across the significant obstacles and difficulties.
Freedom of expression
The anxiety is expressed often about the freedom of mass media in our country. In February the Council of Europe published the report of experts on the freedom of expression and freedom of information in Ukraine. The report was compiled after the results of the visit to Ukraine in November 2002. It is pointed out in the final section of the report: «We have to repeat the conclusion made in our report for 2000: Ukraine gives many grounds for anxiety in the sphere of the freedom of speech and information» (paragraph 34). The report also pays attention to the series of problems, such as: great number of claims against mass media on the protection of honor and dignity, as well as enormous size of compensations of the inflicted damage; contradictory policy of licensing of the activities of radio stations and TV channels; attempts of the power to influence the informational contents of mass media and offences against journalists.
Although some acting and former officials of the Ministry of Interior allegedly were arrested in the connection with the disappearance of independent journalist Georgiy Gongadze in September 2000, the investigation, in fact, reached a deadlock in the end of October, when General Prosecutor Sviatoslav Piskun, who controlled the investigation, was dismissed from his post by President Kuchma. The opinion is expressed by some people that this dismissal was connected with the above-mentioned arrests.
Ukrainian Association «Amnesty International»
(044) 469-70-27, e-mail: [email protected]
Politics and human rights
Mukachevo: Ukrainian ombudsperson demands to restore the rights of teachers and medics dismissed for their political views.
Ombudsperson Nina Karpacheva directed to President of Ukraine Leonid Kuchma the appeal «On violation of the right for labor of the workers of budget establishments of the town of Mukachevo because of political views». This document concerns the dismissal of almost 30 workers from their jobs for the political views: school superintendents, qualified medics, manager of the House of Culture, main architect of the town, his deputy and a number of top officials of the town executive committee.
The Ukrainian ombudsperson informs the President about the complaints received by her from representatives of teachers labor collectives and the investigation started after these complaints on the basis of personal check conducted in Mukachevo, adduces the facts of persecutions for political views and direct violation of operating laws by the local power. The groundless dismissals of the workers of budget establishments, reads the document, evidence about the violation of the right for labor, biased and illegal character of the orders. At the same time, the claims to court on the restoration of the abused constitutional rights for labor are not considered, and the court circumlocution goes on.
On the basis of Article 101 of the Constitution of Ukraine, with the aim to regulate the social-political situation in Mukachevo and restore the labor rights of the dismissed, the ombudsperson asked the President «to control this question personally, to give appropriate orders for restoration of the abused rights of the workers of budget establishments and to take measures for prevention of such illegal actions in future».
Several days ago representatives of labor collectives, as well as parents of the pupils of special boarding school for blind children and children with poor eyesight, educational complex «General education school-kindergarten «Garmoniya»» and gymnasia of the town of Mukachevo of the Zakarpatska oblast turned to ombudsperson Nina Karpacheva with the appeal to protect Ya. Zhigan, I. Senko and V. Yakimchuk, the superintendents of these educational establishments, from the illegal dismissal.
During the personal reception the appellants informed the ombudsperson that the administration of the directorate of education and science of the Zakarpatska oblast state administration and the directorate of education, family, youth and sport openly exerted the pressure on the above-mentioned superintendents with purpose to force them to leave their jobs «voluntarily», in spite of the perceptible positive changes that had occurred in these educational establishments under their direction.
Representatives of the local power expressed not a single well-founded complaint against the work of these school superintendents, and the propositions about their dismissal are absent in the conclusions of the temporary commissions created by the authorities for check of these establishments, but the superintendents were dismissed from their posts all the same.
In the opinion of representatives of labor collectives and parents of the pupils of the above-mentioned establishments, such actions of the local power is a continuation of the staff «purge» in budget establishments of the town realized by the directorate of education of the Zakarpatska oblast state administration.
The claimants reckon that these actions are connected with the conduction of the repeated election of the Mukachevo mayor, which was carried out on 18 April 2004. The authors of the appeal believe that the local power resorted to the illegal actions in order to guarantee the victory of their candidate at the election.
Ombudsperson Nina Karpacheva directed the official representation to Vasyl Kremen, the Minister of education and science of Ukraine, with the demand to issue the order about the creation of the commission of the Ministry for checking the facts stated in the above-mentioned appeals to the ombudsperson and to take measures for restoration of the right for labor of superintendents of the educational establishments of Mukachevo. In this document Nina Karpacheva also draws the attention of the Minister to the fact that, by a strange concatenation of circumstances, everybody, who was dismissed or is tried to dismiss now, had been connected with the election of the Mukachevo mayor on 29 June 2003: they worked in the district election commissions. These conclusions were confirmed during the check conducted in Mukachevo by representatives of the Ukrainian ombudsperson.
Secretariat of the Council of Ukrainian human rights protecting organizations
Implementation of European Law
Draft of the Criminal-Procedural Code of Ukraine contradicts the standards of the Council of Europe.
The public hearings «Human rights and fundamental freedoms in the draft of the Criminal-Procedural Code of Ukraine» were held on 12 May in Kyiv in the conference hall of the Regional center of the Academy of Law of Ukraine. The hearings were organized by the Council of Ukrainian human rights protecting organizations and the Kharkov group for human rights protection with the support of the International Foundation «Vidrodjennia». Members of the working group that had developed the code, representatives of 25 public human rights protecting organizations, scientists and representatives of mass media took part in the hearings.
The draft of the Criminal-Procedural Code of Ukraine was presented for the second reading in the Parliament as early as in September 2003. Yet, the voting did not take place then. This spring the draft of the code was included into the schedule of the Parliament for several times, but the voting was not conducted. Now the draft of the Criminal-Procedural Code is planned to be considered in the second half of May 2004, but, most likely, the consideration will be postponed again.
The majority of the participants mentioned the considerable number of drawbacks of the draft, which drawbacks created the auspicious conditions for systematic, uncontrolled and arbitrary violations of rights and fundamental freedoms of common citizens.
Advocate Arkadiy Bushchenko, an expert of the Kharkov group for human rights protection, pointed out that the repressive ideology of the criminal process was included into the draft of the CPC «on the molecular level». He stated that, in fact, the draft did not fulfill any of the provisions stipulated by Article 5 of the European Convention on the protection of human rights and fundamental freedoms.
We want to remind that last years Resolution of the Parliamentary Assembly of the Council of Europe No. 1346 (2003) on the fulfillment by Ukraine of her duties and obligations reads: «The Assembly expresses its deep anxiety about the slow progress in introduction of the principles and standards of the Council of Europe by the power organs of Ukraine, which is confirmed by the fact that some clauses of the last version of the draft of the Criminal-Procedural Code are incompatible with the standards of the Council of Europe guaranteed by the European Convention on human rights and the practices of the European Court of human rights». It should be noted that the draft of the Code practically was not changed after the adoption of this Resolution: it still remains repressive and, in fact, legalizes the existing administrative practice of systematic violation of human rights and fundamental freedoms.
The following drawbacks of the draft of the Code were mentioned as the most flagrant ones:
1. Restriction of the opportunities for the competitive examination of proofs; absolute absence of the constitutional principle of competitiveness on the stage of pre-trial investigation, which principle is an integral part of fair trial from the standpoint of Article 6 of the European Convention on the protection of human rights and fundamental freedoms;
2. Powers of law-enforcing organs to restrict rights of an individual without the sufficient guarantees against the arbitrary actions;
3. Expanded existence of the institute of «the suspected», which is essentially limited in democratic countries – this allows the long-term restriction of rights and freedoms of an innocent person: in democratic countries a person may have the status of the suspected during 24, 48 or 72 hours. According to the considered draft, a person is acknowledged to be suspected since the moment of institution of the case against him/her; since this moment any preventive measures may be applied to him/her and the person may have this status for a very long time;
4. Possibility to restrict the access of the suspected and accused persons, as well as their advocates, to all materials of the case, without which the efficient defense is impossible;
5. Possibility of repeated return of criminal cases by court for additional investigation instead of issuing the verdict of "not guilty", which, in fact, implies the a priori accusatory character of the work of court, when the court is sure of the guilt of the accused, but there are no sufficient objective proofs of this guilt;
6. Distortion of the institute of «bail», which makes its use impossible;
7. Absence of regulation of court procedure of consideration of the question about the arrest of the detained and periodical reconsideration of this question; as a result, Ukraine occupies one of the first places in Europe by the number of people, who stay in custody for 3-5 years without the proper verdict, and the deprivation of liberty is still the most popular preventive measure;
8. Possibility of search, seizure of documents and realization of other procedural actions against a person before institution of criminal case;
9. Procedure of the admittance of advocate to the case: in fact, the prosecution gives the permission for his access, which is a doubtless violation of the principle of equality of sides and competitiveness, and is a tool for admittance of the «needed» advocates;
10. Prohibition to divulge any data concerning the criminal case without the proper permission of the investigating officer, which creates the conditions for secret persecution and contradicts the European practices, where only the data of the ODA and the identity of the accused are regarded as secret;
11. Presence of the illegitimate powers of investigating officers concerning the fixation of proofs in criminal case, which contradicts the practices of democratic countries and creates numerous opportunities for misuses: the right to fix the proofs (interrogation of witnesses, conduction of confrontations, procedure of identification, etc.) must be rendered only to court, except the cases, where the law-enforcers are «hot on the heels» of the criminal;
12. Power of the prosecutors office to realize general supervision over lawfulness and investigation, which contradicts the Constitution of Ukraine and the European practices;
13. Absence of introduction of the uninterrupted trial, which fact protracts the consideration of cases for the indefinite term and deteriorates the quality of justice;
Thus, the draft of the Criminal-Procedural Code must be essentially revised in order to adjust its provisions with the standards of the protection of human rights, which are guaranteed by international agreements signed by Ukraine. The Criminal-Procedural Code may not be adopted in the present form in any circumstances.
The concrete propositions and analytical materials, which were presented at the hearings, are placed on the site www.rupor.org.
Secretariat of the Council of Ukrainian human rights protecting organizations
The right to a fair trial
Commentaries to the draft of Criminal-Procedural Code of Ukraine presented for the second reading in the Supreme Rada
Authors of the final version of the Draft: MPs of Ukraine, members of the Committee in charge of questions of legislative provision of law-enforcement activities V. Moysik, O. Bandurka, S. Ivanov, O. Ivchanko, V. Mazurenko, M. Markush, V. Nichiporuk, S. Oleksiyuk, M. Potebenko, S. Sinchenko, V. Chervoniy, A. Shkil and others
In the societies, which are grounded on the principle of superiority of right and on the respect to the indefeasible rights of people, the criminal-procedural legislation represents the human rights with respect to the state power (especially the accusatory one). The draft represents other conception of the Code. It is based on the presumption that a criminal process is not the competition of the parties with opposite interests in order to help the court to establish the real circumstances of the considered case, but is a process of search and punishment of the guilty, and the Criminal-Procedural Code, for its turn, is a collection of methodical recommendations for these activities.
The fact that the repressive ideology of the criminal process was included into the draft of the CPC «on the molecular level» complicates the identification of drawbacks, the correction of which would improve this document.
In many aspects the Draft contradicts, directly or indirectly, the Constitution and international obligations of Ukraine, in particular, in the parts that concern the penetration to dwelling, presumption of innocence, detention of the suspected, terms of their holding in custody before the official accusation, during the pre-trial investigation and trial.
The authors of the Draft preserved the dominance of repressive principles with all peculiarities of such system of legal proceedings, namely:
- multistage process, which results in its long duration, and the opportunity of repeated return of cases for additional investigation;
- mainly written character of criminal process, when the documents, but not direct examination of proofs, are regarded as most important;
- restricted opportunity of competitive examination of proofs;
- powers of law-enforcing organs to restrict rights of an individual without the sufficient guarantees against the arbitrary actions;
- violation of the right for defense, in particular, restriction of the access of the suspected and accused persons, as well as their advocates, to all materials of the case, solution of the question about the admittance of advocates to the case by the prosecution side and other aspects.
Resolution of the PACE No. 1346 (2003) on the fulfillment by Ukraine of her duties and obligations points out: «The Assembly expresses its deep anxiety about the slow progress in introduction of the principles and standards of the Council of Europe by the power organs of Ukraine, which is confirmed by the fact that some clauses of the last version of the draft of the Criminal-Procedural Code are incompatible with the standards of the Council of Europe guaranteed by the European Convention of human rights and the practices of the European Court of human rights». Yet, the draft of the CPC is still repressive by its conception.
The draft of the CPC must be essentially revised, it may not be adopted in the present form. It contradicts the practices of the European Court concerning Articles 3, 5 and 6 of the European Convention, which will result in future in the defeats of Ukraine in the European Court and payment of great sums to the claimants in the cases against Ukraine.
1. Repressive features of the draft
Complication of the pre-trial process
The especial anxiety is aroused by the fact that the draft envisages the opportunity for too long pre-trial proceedings on criminal cases. The stage of pre-trial proceedings cannot provide the guarantees of competitiveness at the clarification of circumstances of a case, so its complication and long duration endanger the right of an individual for the fast access to court for final consideration of the validity of accusation.
The authors of the draft attach unreasonable importance to the so-called stage of «preliminary verification of application, message or other information about a crime». Evidently, such approach is a result of the conviction that any started criminal case should end in conviction, therefore the closure of a criminal case is regarded as a drawback in the work of law-enforcing organs. Reasoning from this position, the authors of the draft introduce the complicated procedure of «verification», which, by their idea, should eliminate the possibility of institution of a case that would be closed later.
This position of the authors of the draft confirms the inclination for the repressive type of criminal process. In a process, which is built by the accusatory principle, institution of a criminal case is not very important. A criminal case is instituted after a rational suspicion of the commitment of some concrete crime. Yet, accusatory criminal process always imply that the conclusions made on the basis of the initial and incomplete information may turn out to be erroneous after some time, when more complete information will be obtained. That is why the institution of a criminal case and its closure is a routine, usual for the activities under questionable circumstances.
Besides, criminal prosecution may be stopped because of shortage of proofs and bad court perspective of the case. The possibility of the verdict of "not guilty" always exists, so the sober estimate by the prosecution of its perspectives in court can result in the refusal from the accusation.
Such attention of the authors of the draft to the act of institution of a criminal case is caused by the stable tradition to evaluate the effectiveness of work of law-enforcing organs by the number of started or closed criminal cases.
Yet, instead of complicating the process of institution of criminal cases, more reliable guarantees should be established from the situations, when investigation of a criminal case results in unjustified meddling into the sphere of personal autonomy and the unfair restriction of personal rights.
Mainly written character of criminal process
One of the consequences of «swelling» of the pre-trial stages of criminal process is the unwarrantably great influence during the court investigation of the proofs contained in written acts, created by the investigating organs in the course of preliminary investigation. The written character of the process, the advantage of protocols over the direct examination of proofs in court, was always regarded as one of the evidences of repressive type of legal proceedings.
The accusatory process attaches significance only to proofs, which are examined at the open trial with maximal guarantees of competitiveness of the sides, and almost ignores the protocols of the prosecution. The approach of the authors of the draft accentuates just on the protocols.
Protocols of testimonies of witnesses, which were compiled during the secret pre-trial investigation without the sufficient guarantees from the illegal influence of the persons, who realized the prosecution, in practice prevail over the testimonies given at the open trial. Besides, the efficient court interrogation of witnesses is hindered by the criminal responsibility in the case, if the testimonies in court would contradict the testimonies during the pre-trial stages of the criminal process.
Another important problem is the use of protocols and other documents, in which the confession of the suspected and accused of the commitment of a crime is fixed. The possibility to use such confessions in proving the guilt of a person induces the law-enforcing organs to resort to any means for obtaining such confessions. This results in more frequent application of torture in the course of pre-trial stages of criminal procedure.
The prohibition of use of the protocols of testimonies, especially the protocols that contain the confession of crimes, if they were not confirmed during the open court consideration, and liquidation of criminal responsibility of witnesses for testimonies obtained at the pre-trial stages of the criminal process have become rather reliable guarantees from the use of illegal methods during the pre-trial stages of the process.
Absence of continuity of court consideration
The problem of the written character of criminal process is aggravated by the fact that the draft does not restore the principle of continuity of court consideration of criminal cases, which was removed from the criminal process in the beginning of 1990s without the sufficient grounds.
This principle is one of basic elements of the system, as well as independent evaluation of proofs by judges, invariability of court composition, direct examination of proofs, equality of sides, etc.
Invariability of court composition means not the bodily appearance and passport identity of judges, but, first of all, their consciousness and views. However, one may not say that a judge or collegium of judges would represent the same composition returning to the consideration after several months, since their consciousness would be burdened with scores of other cases and hundreds of other circumstances. It is natural that, if there was some significant interval between court hearings, judges have to base mainly on the documents, but not on the real impression of the direct examination of the proofs. And the real impression is an unalienable component of independent examination of proofs – the system, which is proclaimed to be the basis of our criminal proceedings.
The absence of continuity of court consideration results in the situation, when the concealed system of evaluation of proofs is formed in the court practice, which system is grounded not on the unique aggregate of consequences in a concrete case, but on the established values of various types of proofs, when the confession of the suspected (accused) is the most important element.
Return of cases for additional investigation
The draft preserves the institute of returning cases for additional investigation, which contradicts the basic principles of modern criminal proceedings.
This institute was created in the times, when the Soviet jurisprudence turned to the inquisitional model destroyed in 1864. Three types of verdicts existed in this model: to recognize as guilty, to acquit and to leave under the suspicion.
The cancellation of the verdicts, according to which the person that had not been recognized as guilty, but was left under the suspicion, suffered from the essential restriction of his/her rights, was one of the bases of the court reform of 1860s.
The Soviet legal procedure restored the «leaving under suspicion» in more serious form of legal uncertainty - return of cases for additional investigation.
Apparently, the position of the authors of the draft consists in giving another attempt to the investigators and prosecutors, who could not formulate and prove the accusation properly. Yet, this approach is the protectionism on the side of court and does not agree with the role of court in democratic countries. It also contradicts the presumption of innocence, the right for reasonable duration of court consideration and the right to a fair trial.
We endorse the position of V. Maliarenko, the Head of the Supreme Court of Ukraine, which was expressed by him in his work published in the magazine «Pravo Ukrainy», No. 4: institutes of return of cases for additional investigation and return of cases to prosecutor must be liquidated, and the corresponding articles from the draft of the CPC must be removed.
Possibility of use of the proofs obtained owing to the violations of human rights
One of the main tasks of the Criminal-Procedural Code is the creation of distinct rules concerning the admissibility of proofs. Yet, the draft contains insufficiently distinct terms, which create the possibility of arbitrary interpretation in practice.
Article 14 of the draft contains the expression «proofs obtained in illegal way» and prohibits their use for substantiation of accusation. Yet, item (36) of Article 6 of the draft defines «accusation» as «affirmation about the commitment by concrete person of a crime, presented according to the order stipulated by this Code». So, it is quite possible that the conviction may be based on «the proofs obtained in illegal way».
Article 8 of the draft includes the statement «proofs, which were obtained by court, prosecutor, inquiry organ or the person carrying out the inquiry with violations of the Constitution of Ukraine or with such violations of this Code that affected or could affect their authenticity».
Thus, this article envisages the indubitable inadmissibility of using only those proofs, which were «obtained with violations of the Constitution of Ukraine». And the use of proofs, obtained with the violations of the CPC, is admissible, if the accused (defendant) would not prove that the violation of the CPC «affected or could affect the authenticity of these proofs».
The following situation may be adduced as an example: part 2 of Article 10 of the Criminal-Procedural Code prohibits the application of torture. So, if the accused reckons that his testimony obtained with the application of torture, must be excluded from the proofs, he must prove not only the fact that torture was applied, but also that the application of torture «affected or could affect» the authenticity of his testimony.
Part 3 of Article 164 of the draft acknowledges as inadmissible the proofs obtained «as a result of application of violence». Such wording does not take into account the creation of the conditions that inflict physical or moral damage for obtaining the involuntary testimonies.
On the other side, the same provision acknowledges as inadmissible the proofs obtained «as a result of other illegal actions». This formulation of part 3 of Article 164 do not agree with the formulation of part 2 of the same Article, which states that «the proofs, which were obtained with such violations of this Code that affected or could affect their authenticity, cannot be used for substantiation of accusation». The comparison of these two provisions allows to suppose that the authors of the draft recognize that some violations of the CPC may be «illegal», and others – «legal» violations.
All in all, the analysis of only three articles of the draft revealed five different definitions of inadmissible proofs: (1) proofs obtained in «illegal way»; (2) proofs obtained «as a result of illegal actions»; (3) proofs obtained «with the violations of this Code»; (4) proofs obtained «with the violations of the Constitution»; (5) proofs obtained «as a result of application of violence». It is impossible to determine whether these concepts have the identical meaning or not.
And, finally, the draft does not solve many problems: any rules concerning the distribution of functions in the question of examination of admissibility of proofs are absent, as well as the standards of such examination. As a result, the inadmissible proofs can get the access to justice.
For instance, according to the existing court practices, the accused must prove convincingly that the illegal methods of investigation were applied to him. Taking into account the fact that the accused has very restricted opportunities to prove the application of illegal actions to him on the side of officials, it is impossible for the majority of the accused to prove that. In this connection many confessions, which raise doubts about their voluntariness, become the main proof, on which the conviction is based.
2. Possibility to overstep the Constitutional restrictions
The draft resorts to a number of the tricks in order to evade the restrictions concerning the interference of the state into the rights and freedoms of citizens, which are protected by the Constitution and the Convention on human rights.
Here are two most demonstrative examples of such approach: authority for penetration to dwelling or other estate of a person and the authority for detention of a suspected.
Penetration to dwelling
Article 263 of the draft envisages the procedure of conduction of a domiciliary visit. Parts 2 and 3 of this article incorporate the demands of Article 30 of the Constitution concerning the obligatory court decision for penetration to dwelling or other estate of a person. Yet, Article 5 of this article reads that «the resolution of a judge is not needed for urgent examination of locus delicti in a dwelling or other estate of a person in the case of obtaining the information about the commitment of a crime in this dwelling or other estate of a person at the objective impossibility of getting from the person of the consent to examine this place».
This clause gives the opportunity to exceed the bounds of Constitutional restrictions and practically destroys all guarantees of inviolability of a dwelling and private life of citizens, since almost every situation can be adjusted to this provision. For instance, the storage in dwelling of narcotic drugs or the property liable to confiscation creates corpus delicti and, in the opinion of the authors of the draft, the information about such crime permits the penetration to dwelling and other estate without court permission.
Part 2 of Article 265 of the draft creates even more opportunities for violation of the Constitution: in the case of obtaining of the application, message or other information about the committed crime or some its features, the person that realizes the inquiry or the investigating officer must immediately proceed to the examination of the place of the event with the aim to reveal the traces of the crime or other material evidences, to clear up the conditions, under which the crime was committed, and other circumstances having the connection with this case». The authors of the draft even did not pay attention to the condition that the «place of the event» may be situated in dwelling or other estate of a person, and in this situation the general rule of Article 30 of the Constitution must be observed.
It should be noted that the operating CPC determines the powers of law-enforcing organs more strictly than the considered law draft.
Detention of a suspected
The Constitution envisages a very limited circle of admissible grounds for detention of a person without court decision: «urgent necessity to prevent a crime or stop it». Any legal grounds for the arrest without warrant, including the Criminal-Procedural Code, must meet the requirement «urgent necessity to prevent a crime or stop it».
Item (1) of part 2 of Article 118 of the draft envisages the arrest without warrant «in the case of the barest necessity to prevent a crime or stop it». At the first sight, this clause repeats the provision of the Constitution, but the authors of the draft utterly distorted the sense of this constitutional restriction. In the Constitution this provision is the norm that restricts the opportunity of the arrest without warrant, and the authors of the draft represent it as an additional situation, when the state has the right to deprive a person of liberty without court decision. According to the logic of the authors of the draft, a person may be arrested without court decision either on the basis of the CPC or on the basis of the Constitution. Yet, according to the logic of the Constitution, any law provision, which permits the arrest without court decision, must not give the power more authorities than it is allowed by Article 29 of the Constitution.
The possibility to exceed the constitutional restrictions is also created by the clauses of Article 118, which permit the detention «for guaranteeing the fulfillment by the suspected of the procedural duties stipulated by this Code» or «with the goal to convey the suspected to the organs of inquiry, pre-trial investigation or court on the basis of the well-founded suspicion of the commitment by him of a crime or other socially dangerous action».
It is noteworthy that the latter grounds contradict Article 5 of the Convention on human rights.
3. Protection of the right for liberty
Along with the fact that the draft preserves too many authorities of the power to deprive a person of liberty without court decision, this document has other drawbacks connected with the protection of the right for liberty.
Presumption in favor of taking into custody
In spite of all declarations, the formulations of the draft conserve the provision, according to which the deprivation of personal liberty in the course of criminal proceedings is still rather a rule than an exception.
In accordance with Article 138 of the draft, if a judge cannot settle his doubts whether the measures not connected with deprivation of liberty would guarantee the «proper behavior», then he must take the accused (suspected, defendant) into custody. Thus, the authors of the draft created the presumption in favor of taking into custody.
This presumption is almost non-rebuttable, since the theoretical possibility always exists that these or that measures would not guarantee the «proper behavior». In such formulation holding in custody becomes a usual state of an accused during the criminal process, if the accused would not adduce some extraordinary circumstances, which would exclude even theoretical possibility of «improper behavior». Besides, the statement «proper behavior» may be interpreted rather freely.
Guarantees of fair court procedure during the solution of the question about taking into custody or release
Regulation of the procedure of court consideration of the question about arrest or release is insufficient in the draft, as well as in the operating laws. Taking into account the fact that the institute of court consideration of the question about taking into custody or release has been introduced into our legal practices very recently, and the traditions of consideration of such questions by court are absent in Ukraine, the approach suggested by the authors of the draft seems to be injudicious. In what follows we will briefly mention only some of the drawbacks:
- the subject of court consideration and the powers of the sides in the course of the procedure are not stipulated properly (Articles 148-150 of the draft);
- the court has the possibility to exceed the bounds of the demands of prosecution concerning the restriction of the rights of individual, which contradicts the role of court in the society (Article 148 of the draft);
- the duty of judge to guarantee to the interested person the right for efficient juridical representation in the course of consideration of the question about arrest or release is not stipulated;
- the elementary right of the accused for personal participation in consideration of the question about the prolongation of his holding in custody is not guaranteed (Article 150 of the draft);
- the duty of prosecution to inform, within the reasonable time, the defense about the arguments, on which the necessity of taking into custody or prolongation of holding in custody is grounded, is not envisaged;
- the procedure of access of the accused and advocate to the materials of the case for the efficient influence on the solution of the question about the arrest or release is not stipulated.
Taking into consideration all these drawbacks, one can see that the role of defense in this procedure is merely decorative.
It should be taken into account that the court consideration of the question about arrest is conducted under the conditions of urgency and is a routine element of criminal persecution. So, the laws must be precise, in order to allow the accused to understand the scope of guarantees, on which he can rely protesting against the attempt of prosecution to deprive him of liberty. Yet, in the present situation, the very existence of these or that guarantees may be a subject of a court controversy. This weakens the effectiveness of the legal methods of defense, which can result in the violations of the Constitution and the Convention on human rights.
Duration of the term of taking to court
The draft reserves the possibility of long-term incarceration of a person, deprived of liberty on the suspicion of the commitment of a crime, without taking to court.
The maximal term of holding in custody without court decision, stipulated by the Constitution, is 72 hours. Yet, the observance of the term envisaged by the Constitution does not mean that the rule about the immediate taking to court is observed, and holding in custody by law-enforcing organs during 72 hours is lawful. An accused must be taken to court as soon as possible, but not later than in 72 hours.
Exceeding of this term makes holding in custody by law-enforcing organs illegal. Yet, even the delay within this term may violate the Constitution, if this delay was not caused by reasonable motives.
The draft does not state that the judge, to whom the detained is taken, must clear up the question why the detained was not taken to him within a shorter term. And without such court control the existing state will remain, when 72 hours is not a maximal term of taking to court, but a usual one.
Yet, part 6 of Article 149 of the draft (as well as part 4 of Article 1652 of the operating CPC) envisages the possibility to exceed this maximal term. This provision reads: «considering the question about deprivation of liberty of a person, which stays at large, the investigating judge has the right to issue the permission on the detention of the suspected/accused and taking him to court under escort. In such case the detention may not last longer than 72 hours, and in cases, where the person stays outside the settlement, where the court acts, - not longer than 48 hours from the moment of transportation of the detained to this settlement».
This clause contains the boundless opportunities for misuses of the organs of inquiry, since the moment of transportation of the detained to this settlement, «where the court acts», depends only on them, so they determine the beginning of the term. It is not difficult to imagine the various forms of cooperation of law-enforcing organs of different «settlements» in order to justify the illegal, and, theoretically, infinitely long term of deprivation of liberty. We already know about the cases, when the «term of transportation» was more than three weeks.
4. Appeals against violations during pre-trial proceedings
The complication and long duration of pre-trial proceedings make more acute the problem of appealing to court against decisions, activities and passivity of the officials realizing the pre-trial proceedings.
Access to court
Parts 1 and 2 of Article 317 of the draft state that the appeals against the decisions, activities or passivity of an official realizing the pre-trial proceedings, head of investigation department or an investigating officer may be handed to the court of first instance. The Code stipulates the rule that such appeals may be handed only during the preliminary consideration of the case by court or consideration of the case per se. As to the opportunity to appeal against such actions before bringing of the matter to court, such opportunity exists only in the following cases:
- appeals against the decisions on the refusal to apply the security measures or on their cancellation (Article 90 of the draft);
- appeals against detention (Article 125 of the draft);
- appeals handed by the person, who informed about the crime, or other person, which takes part in the preliminary check of messages, applications or other information about crimes, against the decisions, activities or passivity of officers of the organs that realize the preliminary check (Article 210 of the draft);
- appeals against the refusal to institute the proceedings on a criminal case or closure of the proceedings on a criminal case (Article 321 of the draft);
- appeals against the resolutions on institution of the proceedings on a criminal case (Article 323 of the draft).
The draft does not envisage the opportunity of appealing against the violations of other rights protected by the Constitution and international agreements. This means that a complaint, which, maybe, contains the information about the brutal violations of human rights, can wait for consideration for many months. And if the case would finish on the stage of pre-trial proceedings, then the mentioned violation would not be considered at all. Thus, the draft creates the unique situation for justice, when consideration of the demands of interested person depends on the time, when the defendant (a law-enforcing organ) would pass the case to court (if he would do that).
Guarantees of court procedure
The most general features, which form the court character of the procedure, are: the right for personal participation in consideration, opportunity to use legal aid (in some cases, rendering of gratis legal services), access to the materials that may have importance for the solution of the case and equality of the procedural opportunities of the sides. The draft substantially ignores these fundamental principles.
For example, part 1 of Article 224 and part 2 of Article 321 of the draft read: «a complaint is handed… in seven days from the moment of obtaining… of a copy of the resolution or the notification about the taken decision…» In the opinion of the authors, it is sufficient for the interested person to obtain only a brief notification about the resolution for handing the qualified appeal to court against this resolution.
The operating Code states that any appeal should be handed only after the thorough study of the resolution, so the Code contains more thought-out formula: «a complaint… is handed… in seven days from the day of obtaining a copy of the resolution or notification of the prosecutor about the refusal to cancel the resolution».
In reality, this term (7 days) is too short: the existence of such norm will result in the situation, when the appellant either will waste time trying to familiarize with the contents of the resolution and will lose the opportunity to turn to court, or will have to hand the obviously ungrounded complaint.
In the case of appealing against the refusal to institute the proceedings on a criminal case any clause of the draft does not stipulate the obligation to render the materials to the interested person, on which materials the resolution on the refusal to institute the proceedings on a criminal case is based. Moreover, part 4 of Article 210 reads that «the data obtained in the course of preliminary check of the application, message or other information about a crime, may be divulged only after the permission of the person, which conducts the check, and the prosecutor, to the extent that they consider necessary».
In that way, one of the sides in the process completely controls the access to the materials and a priori gets the advantage over the procedural opponent at the consideration of lawfulness of the resolution on the refusal to institute the proceedings on a criminal case.
5. Right for defense
The draft of the Code preserves the provision existing in the operating legislation, when the suspected, accused or defendant have much less rights than the advocate, who realizes their defense. The person, who defends itself from accusation, is deprived of some important tools of defense, for instance:
- the right to use technical means in proper cases;
- the right to collect the information about the facts that can be used as proofs in the case, in particular, to send requests and to obtain, according to the order stipulated by laws, the documents or their copies from citizens and juridical persons, to familiarize, in organizations, enterprises and citizens unions, with needed documents, except those, the secrecy of which is protected by laws, to get the written conclusions of experts on the questions that need the special knowledge, to question citizens by their consent.
Advocates have such rights, but the person, who does not use the legal aid of an advocate, may not use these tools.
The right of an accused (defendant) for the participation in consideration of his appeals and cassation complaints is also more restricted than this right of his advocate.
This means that, according to the draft, the authorized person has much more rights that the person, who gave these authorities. Such situation is, to a great extent, caused by the fact that the authors of the draft regard the advocate not as a representative of his client, but as a person assigned by state organs for realization of the «correct defense».
Part 1 of Article 54 of the draft reads: «Advocate is a person, which, according to the order stipulated by law, is authorized to realize the defense of rights, freedoms and legal interests of the suspected, accused, defendant, condemned or acquitted, to render them legal aid during the proceedings in the criminal case». Yet, part 5 of the same article contains the list of those, who «authorize» the advocate «to realize the defense»: the person, which carries out the inquiry, investigating officer, prosecutor, investigating judge and judge.
This provision creates the auspicious conditions for violation of the right for defense from the very moment, when the advocate would try to interfere in the case.
Besides, the moment, from which the person gets the right for juridical representation, is also determined by prosecution side (part 2 of Article 45, part 1 of Article 47).
So, according to the draft, an accused (suspected, defendant) may not determine either the moment, from which he needs the juridical aid, or the person, whom he want to appoint his juridical representative.
This paradoxical situation, when the authorities for defense are given not by the person, who is accused of a crime, but by the persons, who produce this accusation, is a result of the same repressive model of criminal process, which the authors of the draft are trying to realize. This model implies that an investigator or prosecutor know better, when and how the accused must be defended, and which person is more suitable for rendering the legal aid.
As well as the operating Code, the draft deprives the defense of such tool of refutation of accusation as independent experts conclusions, since the decision about expertise and the appointment of concrete experts depends on investigation or court.
If to assess the draft in the whole, one can say that it mainly conserves and legalizes the practices, which have formed in our country and which contradict the modern conception of the role of criminal process in the society. The draft introduces the principles into the criminal legislation, which are typical for the totalitarian social system.
Ukraine got the unique opportunity to create new Criminal-Procedural Code on the basis of modern standards of fair legal proceedings. These standards must be laid in the ideology of the law draft, and this ideology must be reflected in all rules and norms that regulate the questions of criminal proceedings.
There are some discrepancies between the part of the draft, where the principles are declared, and the articles, which should embody these principles in concrete norms. The equality of participants of the process is willingly declared in the general part, but frequently the consideration of these or that questions without participation of advocate is practiced; advocates participation is guaranteed in the cases «if he came». Other provisions of the draft are also not irreproachable.
The draft of the Criminal-Procedural Code must be essentially and conceptually revised in order to adjust its provisions with the standards of human rights protection, which are guaranteed by the international agreements ratified by Ukraine. Yet, the draft demonstrates that its authors miscomprehend the contents and extent of international obligations of Ukraine and other standards of fair legal proceedings.
Freedom of expression
Appeal of the Kharkov group for human rights protection
To President of Ukraine Leonid Kuchma
We are turning to you in the connection with the fact that on 11 May the Supreme Rada of Ukraine adopted the Law of Ukraine «On introduction of changes into some legislative acts of Ukraine» (registration No. 2663) taking into account your propositions. Before that this Law had been adopted on 9 July 2003. We believe that this law endangers the right for information, groundlessly restricts the freedom of expression and contradicts the interests of the society and the Ukrainian state as a whole.
The changes introduced into the Law on the press essentially narrows the constitutional right for information (and this fact violates Article 64 of the Constitution, which prohibits any restrictions of constitutional rights and freedoms, except the cases envisaged by the Constitution). In particular, part 1 of Article 2 «Freedom of activities of printed mass media» reads now: «the right of every citizen for free and independent search, obtaining, fixing, storage, use and distribution (publication) of any information with free access» (item 1 of part 2 of Article 26).
So, now it is not permitted to obtain, use, distribute and store the information with the restricted access, that is, according to Article 30 of the Law «On information», confidential or secret information. According to the above-mentioned article, secret information is the information, which represents «state secrets or other secret information envisaged by laws, the divulgence of which would inflict damage to an individual, society and state». The definition of state secrets and the regime of the access to information representing state secrets are established by the Law of Ukraine «On state secrets». As to «other secret information envisaged by laws», there the situation seems to be more obscure. In accordance with Article 30 of the Law «On information», the procedure of relation of information to the category of secrets is stipulated by the corresponding organs with the observance of the demands of the Law «On information». Since Article 21 of this Law reads that sources and order of obtaining, use, storage and distribution of the official information of the state organs of all levels is regulated by the legislative acts on these organs, then it would be quite natural to think that this must be reflected in the corresponding laws. Yet, not a single law contains the definition of other types of secret information owned by state organs.
In our opinion, item 6 of your propositions to this Law in the version that had been adopted on 9 July 2003: «To give the definition of confidential information owned by the state», was not taken into account by the Supreme Rada of Ukraine.
Really, the second part of Article 30 contains the definition of confidential information: this is «the data, which are owned, used or disposed by physical or juridical persons and are distributed by their wish according to the conditions established by them». We want to point out that, although it is not said directly, the confidential information may be owned not only by physical or non-governmental juridical persons, since, according to Article 19 of the Constitution, «organs of state power and local self-government, their officers must act only on the basis and within the limits of their authorities, using the methods stipulated by the Constitution and laws of Ukraine», that is they may not distribute the information «by their wish according to the conditions established by them». So, one should not reckon that the second part of Article 30 gives the definition of «confidential information owned by the state». The mentioned collision is not solved by parts 3 and 4 of Article 30, which were introduced into Law No. 2663.
Part 3 reads: «the information, which is owned by the state and is used by the organs of state power and local self-government, enterprises and organizations of all forms of property, may be, in accordance to the law, classified as confidential information with the restricted access with the purpose of its preservation». The restriction of the access to information «with the purpose of its preservation» looks illogical and strange. It is incomprehensible, according to which law this status is given. As to part 4, where the informational items are listed, which cannot be classified in this manner (this list almost verbatim copies the list of the informational items, which cannot be regarded as state secrets), one may predict easily that in this case these restrictions will not work: state officials, but not laws, will decide whether to restrict the access to information or not. The «negative» definition of confidential information owned by the state, given in the Law, could work, if the legislators stipulated the creation of «The list of informational items, which present confidential information owned by the state», as it was done with the informational items, which represented state secrets. In that case the contradiction would be liquidated, when the same data are freely distributed «by the wish» of one agency and are classified as secret «by the wish» of another one.
However, the adopted Law does not envisage such «List». And, according to item 2 of operating Decree No. 1813 of 27 November 1998 «On the approval of Instruction on the procedure of registration, storage and use of documents, files, editions and other material carriers of information, which contain confidential information owned by the state», central and local organs of executive power and organs of local self-government must, within six months, develop and introduce into practice the lists of confidential information owned by the state. This information is classified «for service use only». Yet, not every agency may have such list. The instruction does not specify, who and on the basis of which criteria decides which information is confidential. It is also unknown, whether such lists were created and whether they will be accessible to the public. And the practice of handing the informational requests shows that the refusals to render the information with references to the classification «for service use only» are very frequent.
Only one conclusion can be made on the basis of all above-said: the state officials want to take the decision what information should be protected by their own wish, and Law No. 2663 was created with the aim to endorse and protect this wish. Now a journalist, who obtains some information, cannot be sure that it is open and must, strictly speaking, get the permission for its publication from the corresponding organ of state power, which owns, uses or disposes this information. And that implies the introduction of censorship, which is prohibited by Article 15 of the Constitution of Ukraine. Such situation is inadmissible.
So, we are sure that the adopted Law will again, like in July 2003, become the object of destructive criticism of the Ukrainian and international community. We are asking you to use your constitutional authorities and to return Law No. 2663 to the Supreme Rada with the proposition to introduce the necessary changes.
The Kharkov group for human rights protection
New know-how in the sphere of protection of human rights and freedoms.
The democracy rages!
On the work of public reception office of the Kharkov group for human rights protection in 2003
As many as 824 persons turned to the public reception office of the Kharkov group for human rights protection in 2003 - 30% more than in 2002 (628). Among them 328 people sent letters to the reception office, 153 turned there through e-mail and 343 – personally. Besides, some persons phoned to the office, but in such cases the workers of the bureau only rendered necessary information or invited the client to the office for consultation. The increase of the number of the complaints is caused by the wide elucidation of the work of the KhG in mass media, conduction of press-conferences, direct participation in features on all-Ukrainian and regional TV channels, publications in central and regional newspapers. If to take into account the cases, the consideration of which was started in 2001 and 2002 and was continued in 2003, then the work of the consultants of the reception office was very intensive. The increase of the number of complaints connected with torture, cruel treatment, illegal arrest and holding in custody was most sizeable. This is caused by the fact that our organization informed the public about the work on the project «Campaign against torture and cruel treatment in Ukraine», which is realized by the Kharkov group for human rights protection jointly with its partners in various regions of Ukraine with the support of the European Commission.
Advocates V. Nesterenko and A. Bushchenko took part in the work of the reception office, as well as workers of the human rights protection group Karasik, Rapp, Shutaliova, Kriukova, Zakharova, Zakharov, Shevchenko, Bykova, Nedayvoda and Kusaykina. Advocates Perepelitsa and Reziukina participated in the work on the public basis. Students of law and students-psychologists worked in the reception office as volunteers. Physician of the higher grade G. Miasnikova receives clients twice a week, psychiatrist I. Goncharova is regularly summoned for consultations. In the cases connected with torture and cruel treatment, illegal arrest and holding in custody, as well as the cases that had a court prospect, our clients got the aid of the professional advocates, with whom the agreement about the legal aid had been concluded. This gave us the opportunity to become acquainted and cooperate with advocates from various regions of Ukraine.
The number of complaints against courts also increased. Along with the traditional complaints against too strict verdicts in criminal cases, numerous complaints appeared concerning the unfair, in the opinion of citizens, court proceedings in the cases connected with debts in communal payments and other civil cases. The number of the complaints against pay arrears also has not become less, as well as the complaints against the non-execution of court decisions on pay arrears. Citizen M. managed to obtain his salary from the plant «Serp i Molot» only after the beginning of the communication between the European Court and the government. He handed the complaint to the European Court after the consultation given by the reception office of the KhG. There are many complaints against the state service of execution of court decisions. For instance, citizen S. had debts to communal services, but she paid off these debts (or almost did that) during recent two years. She had not been summoned to court, she had not got any court decision, but suddenly she received the notification about the coercive execution of court decision concerning her, which decision had been issued 2.5 years before. Such «energetic» execution of court decisions causes serious misunderstandings. In summer 2003 the communal services intensified the struggle with debtors. As a result the number of citizens appeals about the collection of the debts and their restructuring increased.
A relatively new type of appeals has appeared: complaints of the inhabitants of hostels. Some hostels are passed from the enterprises-owners to other owners, and the people, who lived in these houses for many years are proposed to leave their dwellings without rendering them another lodging; they are made to pay for the communal services, which they did not obtain, etc. We helped these people in some cases. So, citizen R., an unwed mother who lived in the hostel of the plant «Elektromashina» since 1991, managed to assert her right for the room, from which she was tried to be evicted. Other dwellers of the same hostel also turned to court with similar complaints.
Another new type of appeals is the complaints of peasants-land owners against the shackling agreements with leasers: the owners cannot dissolve these agreements. We can predict that the quantity of such complaints will increase in future, and the problem will become more acute.
The structure of the appeals and characteristics of the persons, who turned to the reception office during 2003 are presented in the following two tables.
Characteristics of the persons, who turned to the bureau
Type of appeals
Number of appeals
Incarcerated persons and their relatives
Complaints against verdicts, social questions, complaints against the violations during investigation and trial, complaints against the illegal actions of investigating officers and personnel of penitentiary establishments
Persons under investigation, their relatives and witnesses
Appeals about the defense during investigation, complaints against the illegal detention and illegal actions of militia
Recruits and their relatives
Insufficient medical examination
Complaints against dedovshchina, social questions
Parents of servicemen, who perished in the peaceful time
Social questions, compensations
Pensioners, invalids and other socially unprotected persons
Civil problems, rendering of medical aid
Pressure on the side of the power
Various questions, informational support
Unmarried and divorced mothers
Claims to court on the protection of honor and dignity
Victims of repressions
Restoration of rights, search of relatives, social questions
Victims of crimes
Aid during investigation and trial
Agencies, against which the complaints were handed
Subjects of complaints
Unfair verdicts, too heavy sentences, violations in the course of court proceedings, red tape
Misuse of power, non-fulfillment of service duties
Insufficient investigation, violations during investigation
Cruel treatment, absence of medical aid (or insufficient medical aid)
Dedovshchina, other violations
Local power organs
Administration of enterprises of all forms of property
Illegal dismissals, violations of labor laws, violation of laws on labor protection
Violation of laws on education
Insufficient examination and treatment, other questions
The number of the complaints from recruits became somewhat less. We are connecting this fact with the decrease of the quantity of conflicts between recruits and medical commissions of military commissariats, which, in its turn, is a result of the effective cooperation of military commissariats with non-governmental organizations.
The changes in pension legislation caused the great number of questions from pensioners and people, who were going to retire on pension. M. Nedayvoda, one of the consultants of the reception office, specialized in pension legislation for rendering the professional consultations in the questions of accounting and recalculation of pensions, including academic ones.
All in all, the consultants of the reception office gave more than 1000 consultations (in some cases the number of consultations was 2 and more). The aid was rendered in compilation of more than 300 procedural documents, in creation of about 200 appeals to various institutions and organizations, including 12 appeals to the European Court of human rights. In three cases the communication between the European Court and the Ukrainian government has begun. As many as 19 agreements with advocates were concluded in the cases connected with torture and cruel treatment.
In memory of Danylo Shumuk
Danylo Shumuk was born to a peasants family in the village of Boremshchina, the Vladimir-Volynskiy district of the Volyn oblast, died on 21 May 2004 in the town of Kraskoarmiysk of the Donetsk oblast.
When Danylo was 17, he began his struggle with the Polish occupation regime. When he was 19, he was condemned and spent 5 years and 4 months in Polish prisons.
In 1939 Shumuk returned to motherland. He taught geography at school. His views did not correspond with those of Soviet communists, and he was dismissed from teachers activities.
On 15 May 1941 Shumuk was arrested by the Soviet authorities as «a brother of an enemy of the people». From the prison he was called to the Red Army, to a disciplinary battalion. In this battalion he took part in battles with the Wehrmacht troops. The Soviet commandment issued an order to disarm the warriors of the disciplinary battalion. Being unarmed, Shumuk was taken prisoner. He was kept in a concentration camp for POWs in the town of Khorol in the Poltava oblast, but managed to escape. He organized a guerilla detachment in his native places. In 1943 the detachment joined the UIA. Because of principal difference of views with the commandment of the UIA, Shumuk refused to take part in the actions and taught economic geography at the military courses.
After the Soviet Army came in summer of 1944, Shumuk commanded an UIA group in the Zhytomir oblast. There were no chances to survive, and he disbanded this group. In December 1944 he was arrested and in 1945 he was condemned by the High Tribunal of the NKVD in the Zhytomir oblast according to Articles 54-1 item «a» and 54-2 item «a» of the CC of the UkrSSR («high treason») to the capital punishment, which was later exchanged for 20 years of concentration camps. He did his term in the 3rd camp of Norilsk. Shumuk was one of the organizers of the rebellion of convicts in Norilsk in June – September 1953. For this he was transferred to the Vladimir prison. Later he described this rebellion in his memoirs «Za vostochnym gorizontom» («Behind the Eastern horizon») (publishing house «Smoloskyp», 1974).
In 1955 Shumuk was rehabilitated. He returned home, but had to move top the Dnepropetrovsk oblast because of the pressure of the KGB.
On 19 November 1957 Shumuk was summoned to the KGB and was proposed to cooperate. He refused. The next day Shumuks flat was searched and all his manuscripts were taken away. On 21 November 1957 he was arrested and transported to the prison of the town of Lutsk.
On 5 May 1958 the closed trial of the Volyn oblast court condemned Shumuk according to Article 54-10 of the CC of the UkrSSR to 10 years of incarceration in colonies of strict regime. He did his term in Vorkuta, then in Tayshet (the village of Vikharevka). During a search in the colony Shumuks memoirs were found, and he spent much time in the barrack of especially strict regime. In 1962 he was transferred to Mordova colony ÆÕ-385/7. On 21 October 1967 he was transported to Kyiv and released on 20 November.
From the autumn of 1967 Shumuk lived in the town of Boguslav of the Kyiv oblast, worked as a watchman in a pioneer camp and as a sailor on duty on the Kyiv beach.
In 1968 Shumuk got acquainted with some figures of the sixties, in particular, with I. Svitlychny, N. Svitlychna and E. Sverstiuk.
In 1970 he completed the second part of his book of memoirs that was published in the West.
On 12 January 1972 Shumuk was arrested again and accused of the «anti-Soviet agitation and propaganda» (Article 62 Part 2 of the CC of the UkrSSR) and of «communication of deliberately false testimony» (Article 197). In the course of the arrest his memoirs were confiscated, as well as his letters, which were later acknowledged as program documents of the national liberation movement; these letters were confiscated from I. Svitlychny.
On 5-7 July 1972 Shumuk was condemned by the Kyiv oblast court to 10 years of strict regime colonies and 5 years of exile. He was regarded as an especially dangerous recidivist. He did his term in Sosnovka colony, Mordovia.
On 10 October 1972 Shumuk turned to the Presidium of the Supreme Soviet of the USSR. Having described his biography and the essence of his case, Shumuk concluded: «… I am asking the Presidium of the Supreme Soviet of the USSR to release me from the citizenship of the USSR. It would be easier for me to die… in custody outside Ukraine without being a USSR citizen». Shumuk repeated this appeal in 1973 and 1974.
Being incarcerated Shumuk took an active part in numerous protest actions and hunger-strikes, although he was ill and many times got to the hospital because of stomach ulcer and other maladies. In 1978 he was recognized an invalid of the second group. At the same time a group of convicts (E. Kuznetsov, A. Murzhenko, M. Osadchiy and V. Romaniuk) appealed to the parliament and administration of Canada to multiply their efforts to release Shumuk, since the state of his health became catastrophic. However, Shumuk served his term completely.
Since February 1979 Shumuk was a member of the Ukrainian Helsinki group (UHG).
On 1 March 1980 he was transferred to the special regime department of colony BC-389/36-1 (the village of Kuchino of the Chusovskoy district of the Perm oblast), then he was transferred to the stern regime department of the same colony, and later - to colony BC-389/35 (railway station Vsekhsviatskaya).
In 1982 Shumuk was sent to the exile in the village of Karatobe of the Ural oblast (Kazakhstan), where he stayed under the administration survey till 4 January 1987.
In 1987, after more than 42 years of torments in prisons, concentration camps and exile Shumuk left for Toronto, Canada. On 28 November 2002 he moved to his daughter, who lived in the town of Kraskoarmiysk of the Donetsk oblast.
Danyko Shumuk is the author of books «Za vostochnym gorizontom», «Perezhite i peredumane» («What I lived through and thought about») and «Iz GULAGA v svobodny mir» (From the GULAG to the free world).
The Kharkov group for human rights protection
Vasyl Striltsiv died
On 16 May 2004 Vasyl Striltsiv died in Ivano-Frankivsk.
Vasyl Striltsiv was born on 13 January 1929 in the village of Zagvizdia, the Tismenitsa district.
In 1944 he graduated from the 4th grade of Stanislav gymnasia and entered the 9th grade of the secondary school No. 3. Yet, on 7 December 1944 15-year-old V. Striltsiv was arrested by the NKVD and accused of the contacts with national-liberation movement. On 2 February 1945 he was tried by the NKVD military tribunal of the Stanislav oblast according to Articles 541 and 5411 of the Criminal Code of the UkrSSR («high treason») and was condemned to 10 years of incarceration. After stay in a number of colonies and transit prisons, in 1946 Striltsiv was transported to the Taymyr Peninsula, to the town of Dudinka (the Krasnoyarsk Territory), and later, in 1948, to Norilsk. For participation in the rebellion of the convicts of Norilsk in 1953 he got to the penalty camp, where he finished his term on 16 October 1954. Yet, he was left there as an exiled.
On 20 November 1957 Striltsiv returned to Stanislav and, after some difficulties, got the propiska in Zagvizdia. He worked as a house-builder; in 1959 he graduated from a secondary school and in 1965 – from the correspondence faculty of the Chernivtsy University. He specialized in English philology.
In 1962 V. Striltsiv was rehabilitated. He worked as a teacher in Ivano-Frankivsk and the town of Dolina. In 1972, when Vasyls brother Pavel was arrested and condemned after Article 1871 of the CC of the UkrSSR, the authorities began to persecute V. Striltsiv. In 1977 he was dismissed from his job because of a conflict with administration. On 17 September 1977 Striltsiv refused from the Soviet citizenship and sent his passport to the Presidium of the Supreme Rada of the USSR.
On 25 October 1977 Striltsiv joined the Ukrainian Helsinki Group. On 18 December of the same year he signed the appeal of the members of the Group to the Belgrade Council in the connection with the arrest of Levko Lukyanenko.
In 1979 Striltsiv was condemned to three months of compulsory work for «insulting of honor» of school superintendent (Article 126 of the CC of the UkrSSR), after the event that had happened in 1977.
In March 1979 a search was conducted in Striltsivs flat in the connection with the case of Oles Berdnik. The law-enforcers confiscated the Bible, some poems and the text of the verdict of 1944.
In May 1979 he got the warning about the responsibility for the anti-Soviet activities stipulated by the Decree of the Presidium of the Supreme Rada of 25 December 1972, but refused to sign this warning.
Another search of Striltsivs dwelling was carried out on 5 July 1979 and was connected with the arrest of Petro and Vasyl Sichkos, the members of the UHG. In October 1979 Striltsiv and Sichkos were summoned to the KGB, where they were warned: if something would happen on the day of celebration of the first anniversary of the new Constitution, they would be arrested.
On 23 October 1979 Striltsiv was arrested on the accusation of «violation of the rules of passport regime» (Article 196 of the CC of the UkrSSR), and on 12 November he was condemned by the Dolina district court to 2 years of incarceration in a colony of strict regime. Neither the dwellers of Dolina, where Striltsov had lived and worked for many years, nor his only relative, brother Pavel, knew anything about this trial. Only two law-enforcers in civilian clothes were present in the courtroom. There was not even an advocate there. After the trial, contrary to the demands of law, Striltsiv was not permitted to meet his brother. On 2 January 1980 he was transported to colony ÎÏ-317/16 situated in the village of Bozhkov of the Poltava oblast.
The day before the release, on 22 October 1981, Striltsiv was arrested in the colony for «anti-Soviet agitation and propaganda». On the day of the arrest a search was conducted in the house of Semenishin, a teacher of physical training, in the village of Vygoda, the Ivano-Frankivsk oblast; Striltsivs archive was confiscated during this search. On 21-28 April 1982 the Poltava oblast court condemned Striltsiv, according to Article 621 of the CC of the UkrSSR, to 7 years of incarceration in colonies of strict regime and 4 years of exile. He did his term in colony ÆÕ-385/3 in the village of Barashevo of the Tengushovskiy district, Mordovia.
Striltsiv handed the scores of protests and applications, and wrote the work «Education must serve to people» containing the analysis of the policy of russification. He was released on 5 May 1987 because of perestroika. He immediately confirmed his membership in the UHG. On 11 March 1988 Striltsiv, together with other 18 UHG members, signed «The appeal of the UHG to the Ukrainian and world community» about the resumption of work of the Group.
After his return to Ivano-Frankivsk Striltsiv refused to restore the Soviet citizenship until, in January 1988, he got the job of a teacher in the settlement of Zhukotin of the Kolomiya district. In 1990 he retired on a pension.
Vasyl Striltsiv was a founder-member of the All-Ukrainian Union of political prisoners and the repressed (3 June 1989), since 24 November 1991 he was the head of the oblast organization of the Union of political prisoners of Ukraine, which, on 19 December 1992, joined the All-Ukrainian Union of political prisoners and the repressed. On 3 May 1998 he became a deputy head of the Union. Striltsiv was an active member of the Ukrainian Helsinki Union (UHU), the head of the Ivano-Frankivsk town organizations of the UHU and the Ukrainian Republican Party.
Vasyl Ovsienko, after the materials by V. Striltsiv