“Prava Ludiny” (human rights) monthly bulletin, 2004, #08
Appeal of the ecologic public organization “Zeleny svit” on the election of the President of Ukraine Seminar for judges of the Chernigiv oblast “Right for free election in international and domestic legislation in the context of election of the President of Ukraine” Election process in the Chernigiv oblast Statement of the Chernigiv Public Committee of Human Rights Protection on increase of the cases of administrative pressure on voters by representatives of organs of state power and local self-government in the Chernigiv oblast Research of the level of access to mass media: the Lugansk oblast State and communal mass media in the Crimea do not inform the local dwellers about the course of election campaign in Ukraine Election campaign in Krivoy Rog Kherson oblast in the Presidential election campaign-2004: all-Ukrainian tendencies and regional peculiarities Press conference of Oleksandr Zinchenko in Kharkov On the election campaign in Kharkov and the Kharkov oblast Violations of rights and fundamental freedoms of citizens during election process: generalization of messages of human rights protecting organizations Privacy
Will the observance of human rights become the basic demand at the collection of information from communication channels? Access to information
Court acknowledged the passivity of General Prosecutors office
Appeal of the ecologic public organization “Zeleny svit” on the election of the President of Ukraine
The public organization “Zeleny svit”, an independent and non-party organization, confirms its adherence to the principles of humanism, non-violence and superiority of right. Being the conscientious citizens of our country, we are worried about the lot of Ukrainian democracy and civil society.
Unfortunately, the events of the past ten years convince us that the system of neo-feudal relations has formed in Ukraine with all features typical for that system: property inequality, total corruption, restriction of rights and freedoms of citizens and decline of social morals. We reckon that this situation is caused by the weakness of civil society, organs of local self-government, independent mass media and court system, along with the excessive authorities of the presidential power.
The autocratic rule of President Leonid Kuchma and his clique has become the period of enormous losses and disappointments for our people. This period is characterized by pauperization of the majority of Ukrainian citizens, their mass labor migration abroad, growth of external state debt, squandering of national riches, in particular, strategic and high-technology branches of economics. The greatest damage has been inflicted during recent years to Ukrainian village: in fact, the rural medicine and culture were destroyed, the amount of agricultural production has essentially decreased as a result of the so-called “agrarian reform”.
The Ukrainian democracy also underwent serious ordeals at the period of L. Kuchmas rule. In the irrepressible striving for the unlimited authorities the oligarchs systematically jeopardized the constitutional order and parliamentarism, they tried to turn the Constitutional reform into a tool for absolutization and perpetuation of their regime, they violated the guarantees of the activities of opposition, the freedom of the press and the principles of separation of powers in a democratic society. Several criminal and corruption scandals became known around the world and seriously discredited Ukraine in the eyes of international community. As a result, Ukraine practically lost the chance to become, in the nearest future, a member of the European community of democratic countries.
Every day our country loses the ability to subject the foreign policy to its own national interests. The most glaring examples of weakness and external dependence of Ukraine were her entry into the Unified economic space and participation in the American-British military intervention to Iraq started with brutal violations of international right.
For the umpteenth time we have to declare that the politics of the top state government of Ukraine does not agree with the ecologic priorities and purposes of stable development. National and local ecological programs still remain at periphery of the interests of the power. The obvious features of ecological, economic, legal adventures and giantomania may be found in the long list of large-scale technologic projects. The latest of such projects is ecologically harmful construction of the navigable channel across the territory of the Danube nature preserve, which is a reserve of world significance and is protected by UNESCO.
The election of the President of Ukraine gives us some chance for improvement of this situation, which is not normal for a European country.
We believe that the top state power in Ukraine should be renewed radically: both the staff and the principles of work.
We are turning to all participants of the election campaign with the appeal to do their best for guaranteeing of honest and open competition of the candidates to Presidents post and for the protection of the right of our compatriots for free and conscious choice.
We hope that the national-democratic reformative forces will demonstrate, in the course of the election, their ability for dialogue, unification and joint elaboration of distinct and responsible programs of activities.
We are sure that ecological goals and values must, at last, take the priority place in the programs of Ukrainian political figures.
We believe that real patriots would come to power in our motherland, whose merits would satisfy the demands of the 21st century.
Approved by the collegium of the EPO “Zeleny Svit”
10 July 2004
Seminar for judges of the Chernigiv oblast “Right for free election in international and domestic legislation in the context of election of the President of Ukraine”
On 27 August 2004 the seminar for judges of the Chernigiv oblast “Right for free election in international and domestic legislation in the context of election of the President of Ukraine” was held in Chernigiv. The seminar was organized by the Chernigiv public committee of human rights protection in the framework of the project “Active protection of election rights-2004”. The goal of the action was familiarization of judges of the Chernigiv oblast with modern standards of human rights connected with election process.
The substantial attention was focused on the problem of application of new Ukrainian laws “On election of the President of Ukraine” and “On Central election commission”, the right for free election was discussed from the viewpoint of the European Convention of human rights.
The following topics were considered at the seminar: “Authorities and system of election commissions. Organization and conduction of elections of the President of Ukraine”, “Questions of practical application of elective laws”, “Conduction of pre-election agitation. Public actions”, “Restrictions on the conduction of pre-election agitation”, etc. The attention was paid to the existing court practices, especially in the Chernigiv oblast.
Representatives of the court branch of power and public organizations worked as lecturers and trainers at the seminar, in particular, Volodymir Cheremis, the manager of the Institute of economic-social problems “Respublika”, Nadiya Molochko and Svitlana Glushchenok, experts in the sphere of election right, Oleksandr Demchenko, a judge of the Appeal court of the Chernigiv oblast, and others.
The seminar was a continuation of the cooperation between the Chernigiv public committee of human rights protection and the Appeal court of the Chernigiv oblast. The texts of the new laws of Ukraine “On election of the President of Ukraine” and “On Central election commission” were distributed among the participants of the seminar. Besides, owing to the project “Promotion of organization of election in Ukraine”, the judges got “The collection of advices on the question of application of the laws on election of the President of Ukraine”.
More detailed information about this action and the project “Active protection of election rights-2004” can be found on the site http://elections.cn.ua, which also contains the information about the observance of human rights connected with the election process in the Chernigiv oblast.
The project “Active protection of election rights-2004” is realized by the Chernigiv public committee of human rights protection with the support of the Swiss Agency for Development and Cooperation. The main purpose of the project is the prevention and liquidation of violations of election rights of citizens on the territory of the Chernigiv oblast during the Presidential election.
Election process in the Chernigiv oblast
During July the tendency intensified to the use of administrative resource in favor of one of the candidates to the post of President of Ukraine. So, according to information given to us by “Our Ukraine”, Gerashchenko, the head of the Chernigiv town heating directorate, and Volodymir Davidenko, the head of the housing department of the Desnianskiy district, threatened their subordinates with dismissal and forced them to collect signatures in the support of V. Yanukovich. From the same sources we obtained the information about the creation, in the structure of the town council, of the operative squad of peoples militia headed by V. Negodnikov; the functions of this squad are not comprehensible. The ChPCHRP conducts now a series of actions for ascertainment of this information and reaction in the case of revelation of violations of operating laws.
There is also another phenomenon: since the middle of July the number of complaints from citizens, in particular the officials of the organs of state power and local self-government, to the committee has increased sharply. The complaints concern the pressure, which is exerted on these citizens by representatives of the district administrations of the oblast. This wave of complaints coincided by time with the collection of signatures in the support of candidates to presidency and activization of pre-election race. The officials of the organs of local self-government complain that they are threatened, by phone and personally, with dismissal and repressive actions, if they would not guarantee the priority conditions for the candidate supported by local administrations. There are several complaints about the pressure exerted on citizens my militiamen.
Such complaints are a warning about the probable intensification of violations of fundamental rights and freedoms of citizens, which may start in September and October. Even now one can observe the attempts to restrict the right to free choice, the atmosphere of fear and non-freedom in the society is thickening.
The committee got the documents, which evidenced about the violation of part 4 of Article 3 of the Law of Ukraine “On election of the President of Ukraine” by one of district state administrations. A month before the official start of the election campaign the heads of state establishments received the official letter with the order to take measures for increase of the level of subscription to the newspapers founded by district and oblast state administrations. The heads of establishments and enterprises, in their turn, recommended to their subordinates to subscribe without fail to the mentioned editions. The control of the subscription was realized by the workers of post offices: they were ordered to ask about the place of employment of the subscribers and to compile the registers. If an establishment did not fulfill the “plan”, its head had an unpleasant talk with the officials of the district administration.
In July the editorial policy of the regional editions continued to change in the connection with coming election.
In order to study the situation with rights and freedoms in the materials printed in mass media, our committee conducted the monitoring of all social-political printed mass media of the Chernigiv oblast, which have been published during last month; were published regularly; were published for more than 12 months and were distributed through “Ukrposhta”. So, we studied the editions, which had permanent readers and were distributed on the commercial basis.
As a result of monitoring weve got the following results.
Like in July, weve fixed that almost 100 % public and political editions appeared as mouthpieces of some political forces. Absolute identity of materials published in these mass media was fixed again. In other words, the most part of publications were devoted to some concrete political point of view. Except for some fascicles of the newspaper “Gart”, we did not fix any alternative positions or references on existence of such positions. Presentation only of “one-sided” materials in mass media gives a possibility to say about the obstacles in guaranteeing of the right for access to information, in particular in the context of impartial social-political information. As before, the greatest part of the materials was devoted only to one potential contender.
The all-Ukrainian weekly “Sivershchina”, being a right-wing opposition edition, wrote mainly about Mr.Yuschenko and his activities, as well as lacks and shortcomings in the activities of the operating government headed by Mr.Yanukovich. Such direction of publications is confirmed by headlines, such as: “Force of people grows in geometric series”, “Parallels between 2004 and 1991”, “It is enough to compare the achievements of governments of Yushchenko and Yanukovich”, “Peoples telephone against “temniks””, “The best medicine from falsifications is the “Georgian variant”” (“Sivershchina”, No. 31 of 30 July 2004).
As to the editions founded by the organs of state power and local self-government, such, for example, as “Desnyanska pravda”, the situation also has not changed in comparison with previous month. As before, the articles are published about “the achievements of the government headed by V. Yanukovich” and nothing is said about other potential candidates to presidency.
The only exception is the information about “Labazovs case”. Mass media of the Chernigiv oblast paid much attention to the events around the conflict between the representatives of regional headquarters of V. Yushchenko and V. Yanukovich in the town of Priluki. For instance, the newspaper “Chernigivski Vidomosti” (No. 32 for 5 August 2004) published the article “Attack on the headquarters in Priluki”, in which Ivan Kochubey, the first deputy of the head of the oblast militia directorate, stated his position on the events of 27 July 2004. The pro-power newspaper described this situation almost similarly, although some of these editions were more neutral and gave the opportunity to their readers to draw the conclusions independently.
In general, in July the organs of state power conducted the considerable work through mass media and in collectives for improvement of image of operating Prime Minister and candidate to Presidents post Viktor Yanukovich. They tried to show him in the most favorable light, to reduce the influence of the facts of his biography, which had the negative public resonance. We believe that such massive attack on the conscience of voters heightens nihilism in the society and arouses the irritation of citizens, who understand that the officials try to dictate their will. Our committee regards these activities as an encroachment on the freedom of consciousness.
So, the following conclusions may be made: the state mass media mainly present the materials about the achievements of the operating government and describe the positive sides of personality of the Prime-Minister of Ukraine. The opposition mass media of the Chernigiv oblast incline to negative elucidation of the activities of representatives of the organs of state power and local self-government; besides, they describe, although to a smaller extent, the positive personal features of their candidate and the work of his political movement. All mass media give no alternative information.
Moreover, none of the analyzed newspapers except “Sivershchina” attended to the problems of education of the potential voters concerning their civil and political rights. This means that the mass media have only political goals.
Statement of the Chernigiv Public Committee of Human Rights Protection on increase of the cases of administrative pressure on voters by representatives of organs of state power and local self-government in the Chernigiv oblast
The Chernigiv Public Committee of Human Rights Protection (ChPCHRP in what follows) appeals to representatives of the organs of state power and local self-government, to Ukrainian and international community expressing anxiety about the increase of the facts of exertion of pressure on the heads of the organs of local self-government, including rural and villages councils, by local state administrations of the Chernigiv oblast with the goal to provide the political support to the only candidate from power during presidential election in Ukraine. We are also worried by the quantity of facts of the pressure on students and application of administrative pressure in higher education establishments of Ukraine in the course of pre-election agitation. The described tendencies may interfere with holding of free and honest presidential election in Ukraine and violate the international standards in this sphere.
According to information obtained by us from many districts of the oblast, the heads of organs of local self-government underwent the considerable administrative pressure during last two months. Some of these officials informed us that their future tenure of office depended on the results of presidential election. The workers of the organs of local self-government complained that they were threatened with dismissal and repressive actions in the case, if they would not give priority conditions to the candidate supported by local administration. There are some complaints against the pressure upon citizens put by law-enforcing organs.
Since the middle of July the number of such appeals has increased. In our opinion, it concurred with the collection of voters signatures in the support of candidates.
The ChPCHRP considers the application of such pressure on voters as violation of human rights, which provokes atmosphere of fear in community and restricts the human right to fair elections.
We proclaim that the coercive involvement of local self-government officials in agitation campaign, as well as exertion of pressure on voters, are contrary to Articles 34, 38 of the Constitution of Ukraine, Law of Ukraine “On election of the President of Ukraine”, and violate item 1 of Article 10 of the European Convention of human rights and Article 3 of the Protocol to this Convention.
During last months the Committee also received information from students about the exertion of pressure upon them and teaching staff on the side of direction of the educational establishments with the goal to prevent free and independent participation of students in the election process. The cases were fixed, where premises and resources of educational establishments were used for needs of some candidates headquarters.
We certify that during last time the attempts have been observed to restrict the realization of students political rights and freedoms, namely: the freedom of thought and speech, freedom of choice and the freedom of peaceful assembly (Article 39 of the Constitution of Ukraine). The double standard is applied in the cases of such restriction, when students participation in some political actions is restricted, on the one hand, and they are made to take part in other actions, on the other hand.
For instance, the Chernigiv oblast organization of Ukrainian Students Association turned to the ChPCHRP with the complaint about the restriction of the freedom of choice. In particular, the facts were mentioned of administrative pressure on students in Nezhin State Pedagogical University named after Nikolay Gogol. Mr.Yakovets, the rector of the university, who is an empowered person of candidate Viktor Yanukovich in constituency No. 211, stated, at a meeting with teaching staff, about the prohibitions of political agitation in the university during the all period of the election.
The ChPCHRP regards the above-mentioned fact as violation of Articles 34, 39 and 67 of the Constitution of Ukraine, Article 10 of the European Convention of Human Rights and Article 3 of the Protocol to the European Convention of human rights. The prohibition of agitation in the higher educational establishment during pre-election period restricts the constitutional rights of citizens to the freedom of speech and thought, freedom of expression and freedom of choice. According to Article 64 of the Constitution of Ukraine, the constitutional human and civil rights may be restricted only after court decision or in cases directly stipulated by law.
Besides, the prohibition of agitation during election may be considered as restriction of the right to information. It also may be an attempt of the empowered person of the candidate to create the conditions for prevention of agitation in favor of other candidates.
The above-mentioned facts give grounds for concern of representatives of our organization over the level of democracy and transparency of the election process and voters rights.
Ukraine, being a participant of the European Convention of human rights, Concluding Act of the Helsinki Agreement on safety and cooperation in Europe of 1975 and Copenhagen Agreement of 1990, assumed the obligations to observe the international agreements, including standards on the conduction of election. Were sure that only free election without fear and the refusal of authorities from the methods of administrative pressure will confirm that Ukraine fulfills its international obligations.
We also state that free participation of citizens in agitation campaign in accordance with own opinion and beliefs, as well as their free expression, are the characteristics of fair election in the democratic state.
We denounce the attempts of power to use the potential of the organs of local self-government and administrations of educational establishments in favor of some candidates.
We appeal to representatives of state power, local self-government and administrations of educational establishments not to be guided by temporary political goals, to observe the laws of Ukraine, to respect the fundamental rights and freedoms and to allow the citizens of Ukraine to make free choice!
Members of the Chernigiv Public Committee of Human Rights Protection
Research of the level of access to mass media: the Lugansk oblast
The intension of elucidation of the activities of the candidates to Presidents post has increased in July in 1.5-2.7 times in comparison with the previous month. All mass media, which were monitored, paid the most attention to positive elucidation of the activities of Viktor Yanukovich. Negative information mainly concerned Viktor Yushchenko.
In July the number of newspaper publications, which elucidated the activities of the candidates to presidency increased, in compassion with June, in 2.1 times and reached (all in all, in 6 newspapers) 133, their area increased in 2.7 times and reached almost 700 thousand symbols. The duration of TV features increased in 1.5 times and reached 530 seconds. The increase of the activity mainly concerns the communal editions: in 6 times for communal newspapers and in 3 times for state regional TV stations.
The materials describing the activities of Viktor Yanukovich in the positive or neutral light occupy 65% of newspaper area, and negative materials about Viktor Yushchenko -- 11%. The advantage of the Prime Minister at the Lugansk TV is even more: here the positive information about him occupies 89% of time.
Such proportions are typical for all editions or TV channels that were monitored; the deviation from these average data is not more than 15%. None of the editions published the materials, in which the activities of V. Yanukovich were mentioned in the negative light.
The greater part of information, on the background of which the activities of the candidates to presidency were elucidated, was based on consequences of visit of Prime Minister Yanukovich to the Lugansk oblast, which took place on 22 June. After this visit the oblast obtained in July several tranches for compensation of pay arrears, as well as for financing of municipal economy, registration of candidates and forming of election headquarters. At that the mass media mostly elucidated the forming of election headquarters and actions in support of the “only candidate”.
Two TV channels, which broadcast almost on all territory of the oblast, were included to the media-monitoring: the Lugansk oblast state TV and radio company (LOSTRC) and private TV channel “IRTA”. Five features of the LOSTRC and 3 features of the channel “IRTA” were analyzed.
The regional TV channels were most energetic in positive and neutral elucidation of the activities of Viktor Yanukovich, who got as much as 89% of time. The similar information about Viktor Yushchenko, Oleksandr Moroz, Petro Simonenko and Anatoliy Kinakh almost was not given, each of them got from 4.5 to 1%.
It is noteworthy that the informational-agitation campaign at the Lugansk TV channels during this month was “white”: there were no negative materials at all.
The LOSTRC essentially increased the quantity and duration of the materials concerning the subjects of the election campaign: in May such materials lasted for 260 seconds, in June -- 1090 seconds and in July – 3170 seconds. 84% of the materials were connected with positive or neutral information about Viktor Yanukovich.
The total duration of the plots about the candidates to Presidents post at the channel “IRTA” in May-July did not change much and in July was 2130 seconds. At that 97% of the total duration concerned the activities of V. Yanukovich.
Six newspapers of social-political orientation with the largest runs were included in the media-monitoring in the Lugansk oblast: communal newspapers “Nasha gazeta” and “Zhizn Luganska”, as well as private newspapers “Luganskaya pravda”, “21 vek”, “Novy rakurs” and “Grivna plus”.
The “achievements” of the newspaper of the Lugansk town council were the most impressive: 13 materials of the total size 42300 symbols were published in four July issues, among them 95% contained the positive or neutral information about Viktor Yanukovich. The quotation from the editorial material “Viktor Yanukovichs headquarters have been opened” vividly demonstrates the tone typical for this edition: “All men of sense, who care for the future of our country, are ready to vote for Viktor Yanukovich at the coming Presidential election”. In July this newspaper became much more active in elucidation of the subjects of the monitoring (one subject, to put it more precisely): in May there was one material on the subject of monitoring (4860 symbols), in June – 4 (10600) and in July – 13 (42300). As to other subjects of monitoring, the newspaper printed only one material, reading that the Lugansk organization of the PPPU did not support the nomination of Anatoliy Kinakh, although this material did not contain negative information about Kinakh.
The essential intensification of elucidation of the activities of candidates to presidency was also characteristic for the newspaper of the Lugansk oblast council “Nasha gazeta”: in May it published only one material (9790 symbols), in June – 6 (21760), in July – 27 (153800). Among them 22 materials (72% of the total area) elucidated, positively or neutrally, the activities of Viktor Yanukovich. For instance, the material by Irina Lukashova “Fact and factor of consolidation”, which was published on 29 July, is, formally, a reportage from the meeting in the support of V. Yanukovich that was held in Lugansk on 26 July. Yet, in reality, the greatest part of the article is the authors interpretation of achievements of Yanukovich. Besides, the article ends with the hyperbolized conclusion of the author, which reads that Lugansk allegedly endorses Yanukovich. This material can be considered as use of a manipulation trick and, moreover, it directly breaks the restrictions of agitation, stipulated by law for communal mass media. The newspaper also contained several informational-analytical materials, in which the activities of other candidates – Viktor Yushchenko, Petro Simonenko and Oleksandr Moroz, were elucidated equally, but each of them got not more than 9% of area. The newspaper did not publish the materials with negative tinge about any subjects of the monitoring.
The newspaper “Luganskaya Pravda” is, formally, independent (it was founded by a labor collective), but earlier it was published by the oblast committee of the Communist Party of the Soviet Union, so, in fact, this is the second official edition of the regional power. Like the formally communal editions, this newspaper began to write about the candidates to presidency much more actively: from 2 materials (11500 symbols) in May to 19 (106000 symbols) in July, among them 13 materials (60% of the total area) elucidated the activities of Viktor Yanukovich predominantly in positive and neutral tone. As to the neutral information on the activities of Viktor Yushchenko, Petro Simonenko and Oleksandr Moroz, its proportion is almost equal for these candidates (11, 10 and 9%, respectively); somewhat less information was published about Anatoliy Kinakh -- 5%. The information with negative sense was given about Viktor Yushchenko (5%), several small materials concerned Oleksandr Moroz and Petro Simonenko.
The newspaper “Novy rakurs” was the leader in the area of the materials devoted to the activities of candidates to Presidents post both in June and in July: four issues of this newspaper contained 29 materials (more than 200000 symbols) – 30% of the information presented by all editions. 55% of these materials elucidated the activities of Viktor Yanukovich in positive or neutral tone. As to elucidation of the activities of Viktor Yushchenko, the proportion of negative materials (24.6%) was much greater than the proportion of neutral information (16%). There were no negative materials about other subjects of the monitoring; the activities of Petro Simonenko was described positively most frequently (2%), the amount of information about Oleksandr Moroz and Anatoliy Kinakh was much less.
Another traditional leader in elucidation of the activities of candidates is the newspaper “21 vek”: 37 materials (173000 symbols) were printed in four issues of the newspaper. 17 materials described the activities of Viktor Yanukovich in positive or neutral light. Positive and neutral materials about the activities of Viktor Yushchenko occupied somewhat more place than negative materials: 13 and 10%, respectively. The newspaper “21 vek” did not publish in July any negative materials about Oleksandr Moroz, positive information about him made 9% of the total amount. As to Petro Simonenko and Anatoliy Kinakh, there were more negative materials than neutral or positive ones, but the total amount of all information about them did not exceed 1-3%.
The newspaper “Grivna plus” was rather passive in elucidation of the subjects of monitoring: four issues of this newspaper contained only 7 notes (22000 symbols). The edition did not publish a single material of negative tint. As to positive or neutral materials, the majority of them were connected with Viktor Yanukovich – 3 (57% of the total amount). Other subjects were represented almost equally: Oleksandr Moroz – 16%, Viktor Yushchenko – 11%, Anatoliy Kinakh – 10% and Petro Simonenko – 6%.
The data of the monitoring, which was conducted in July by the Lugansk branch of the VCU, demonstrate the existence of the essential discrepancy in presentation of political subjects and the amount of elucidation of these subjects. It is significant that this discrepancy is greater for communal mass media, which, in addition, has become more active in conduction of pre-election agitation. However, the presence of Viktor Yanukovich in commercial editions is also more than 55% of the area of all such materials. Besides, the Lugansk mass media published many negative materials about V. Yanukovichs competitors, using “the black PR”. Thus, we may say that the situation in the Lugansk oblast in July did not agree with the principle of equal access of subjects of election to information.
Remark: The amount of materials was calculated in typographical symbols; 100% of the total area is the area of all materials concerning all five candidates to Presidents post, concerning whom the monitoring was carried out (Yanukovich, Yushchenko, Moroz, Simonenko, Kinakh).
State and communal mass media in the Crimea do not inform the local dwellers about the course of election campaign in Ukraine
State and communal mass media in the Crimea practically do not inform the local dwellers about the course of election campaign in Ukraine, declared Volodymir Pritula, the head of the Committee for monitoring of the freedom of the press in the Crimea, at the round table “Role of mass media in guaranteeing of publicity and openness of election process”, which was held on 20 August 2004 by the Council of Ministers of the Crimean Autonomous Republic.
According to the results of monitoring of two Crimean state editions “Krymskie izvestiya” (the Supreme Rada of the Crimea) and “Krymskaya gazeta” (the Council of Ministers of the Crimea), elucidation of the course of election process was reduced to the only mention about the registration of candidates, one-sided description of the incident with candidate V. Yushchenko on the plateau of the mountain Ai-Petri and detailed elucidation of the activities of candidate to presidency Prime Minister V. Yanukovich. The monitoring was conducted by the Committee in July and August.
In particular, in July the newspaper “Krymskie izvestiya” devoted to V. Yanukovich more than 52% of mentions and 42% of the total area of the materials, which concerned the candidates to Presidents post. Only 6.7% of mentions and 11.3% of area were given to V. Yushchenko; 5.6% and 10.7%, respectively, -- to P. Simonenko. As to other candidates, the newspaper either wrote about them much less, or did not write at all. Similar situation in “Krymskie izvestiya” was observed in August too. During the period from 1 to 20 August this edition gave to V. Yanukovich 49.1% of mentions and 57.4% of the area of the materials about candidates. At the same time, although “Krymskie izvestiya” ignored 3 candidates in July and 2 – in August, the materials about all other candidates were neutral or positive.
The state edition “Krymskaya gazeta” in July did not mention 9 candidates to presidency at all, in August this number was 12. Most frequently the newspaper wrote about the activities of V. Yanukovich: more than 59% of mentions and almost 70% of the total area of the materials concerned this candidate; all these materials were positive. V. Yushchenko got 10% of mentions and 7.3% of the area (a half of the materials about him was negative), O. Moroz – 5.3% and 5.2%, P. Simonenko – almost 4% and 5.1%, respectively. Other candidates were mentioned not more that 1-2 times in the edition of the Crimean government. In August almost 53% of mentions and 74.4% of total area of the materials were devoted to Viktor Yanukovich. All publications about the candidate from power had positive or neutral character.
According to the data of the Committee for monitoring of the freedom of the press in the Crimea, absolute majority of communal mass media in the Crimea also ignore Article 13 of the Law of Ukraine “On election of the President of Ukraine”, which reads that mass media “must objectively elucidate the course of election process”. In reality, the editions elucidate the activities of only one candidate to Presidents post -- Prime Minister of Ukraine Viktor Yanukovich.
(“Svoboda presy v Krymu”, No. 08 (53), August, 2004)
Election campaign in Krivoy Rog
The local headquarters of candidate to Presidents post Viktor Yanukovich are located in the administrative building of the enterprise “Krivbaspromvodopostachannia”.
On the eve of V. Yanukovichs visit to the town, the publicity department of the town executive committee appealed to the firms, which specialized on the creation and placement of outdoor advertisement, and proposed them to conclude the agreement for placement of the pre-election agitation of V. Yanukovich. Representatives of the firms had to put signatures and stamps on the blank forms of the agreement, which would be, allegedly, filled and signed in Kyiv, in the headquarters of the Prime Minister. The prices for placement of the advertisement were several times less that the sums, which are paid by the firms for use of the land under the big-boards. However, on 7 August the big-boards were mounted throughout the town.
In the end of August, after the conduction of the Forum of democratic forces, which supported V. Yanukovich, deputy head of the town organization of the National Democratic Party Anatoliy Kornik had a conversation with a correspondent of the newspaper “Vestnik Krivbassa”. The correspondent said: “We know about the enormous quantity of facts, when teachers, recalled from leaves, were made to collect signatures in the support of V. Yanukovich, and when state officials carried out the agitation for the candidate from power”. Mr. Kornik even did not deny this statement, he only said: “we are against such practices, but it is impossible to exclude completely the influence of administrative resource on the election campaign. This is true not only for us”.
On 2 August the town prosecutors office, jointly with the special militia squad “Berkut”, during eight hours searched the reception office of the headquarters of candidate Oleksandr Moroz in the 32nd electoral district. In the course of the search a digital photo camera was snatched out from the hands of journalist S. Zinchenko, and the flash-card from this camera with 10 shots was passed to the prosecutors office. Besides, journalist S. Zinchenko turned to law-enforcing organs with the complaint. The journalist insists that, during his meeting with P. Chakin, the head of the election headquarters of candidate V. Yanukovich, the latter not only impeded the journalist to fulfill his professional duty, but also inflicted him a material damage – knocked out a dictaphone from journalists hands, and the dictaphone fell down on the floor and broke.
Kherson oblast in the Presidential election campaign-2004: all-Ukrainian tendencies and regional peculiarities
In August the most frequent violations were the violations during the collection of signatures for candidate Viktor Yanukovich, which were accompanied by: a) use of power and administrative pressure on voters; b) various forms of deception and subornation of citizens; c) falsification of the lists with signatures. Other candidates almost did not conduct the collection of signatures.
The following messages were obtained by the reception office of the Kherson oblast fund of charity and health: in the Bekhterska village council of the Gola Pristan district the village headman summoned the inhabitants to his office and forced them to sign in the support of Yanukovich. Teachers, medics and workers of communal services are made to sign the lists. On 12 August the newspaper “Vgoru” published, specially for voters, the article by Oleksandr Burmagin “What is the administrative resource in reality?”
Another glaring example is the conduction of agitation for candidature of Yanukovich by state officials, for instance, Sergiy Dovgan, the head of the Kherson oblast state administration. At the forum of democratic forces, which was held in Kherson, S. Dovgan carried out the agitation for Yanukovich. Galina Bakhmatova, a member of the board of the oblast organization of the Voters Committee of Ukraine, claimed against such actions of Dovgan to the Suvorovskiy district court of Kherson. Yet, the Suvorovskiy district court did not satisfy the claim of Galina Bakhmatova against the illegal actions of the governor, motivating the decision by the argument that Sergiy Dovgan had took part in the forum as a common citizen, but not as the head of the oblast state administration.
Practically at once after the proclaiming of the court resolution, on 16 August 2004, Sergiy Dovgan, at the press conference concerning the social-economic development of the oblast, began to agitate against candidate to Presidents post Viktor Yushchenko. In what follows we will retell the description given by Svetlana Smal, a correspondent of the November “Vgoru”.
At first the governor quickly mentioned several tens of numbers, which, in his opinion, had to persuade journalists that the welfare in the Kherson oblast was increasing. He also spoke about the readiness of the region to the coming winter. Journalists exchanged surprised glances with each other: they could not understand for what the governor repeated the data that had been published in the local press.
Yet, suddenly a correspondent of the TV channel “YT-1” asked malapropos about the “fact of beating of the driver of a KAMAZ truck during Yushchenkos visit”. In spite of the fact that the investigation had not been finished, and the court had not considered the case yet, the governor revived and began to speak “concretely”: he said that all oblast organizations of the Peasants party demanded to expel Viktor Yushchenko from the election race. So, the journalists got the impression that this was not a press conference, but a specially planned action of the Peasants party against one of the candidates to Presidents post, which was conducted in the building of the oblast state administration.
All in all, Kherson mass media do not provide the unbiased elucidation of the election campaign. The information printed in the majority of mass media is biased and tendentious. For example, the newspaper “Gubernski Visti” is published in Kherson. Founder of the newspaper – the Kherson oblast charity fund “Khersonshchina”; run – 317000 copies; the newspaper is distributed free of charge. The address of the editorial board: 1 Svoboda Square (this is the address of the oblast state administration, a closed establishment, where a common citizen practically cannot get in).
Two pages of the newspaper are occupied by the article, which is, allegedly, devoted to the successes of Ukrainian sportsmen at the last Olympic Games, but more then a half of the text contains the praises on Viktor Yanukovich as a state figure, as the head of the National Olympic Committee, as a man and as a candidate to presidency. Interview on the topic “Whom you would want to see as your President?” is printed on another page. There are four interviews, but the answer is the same – Viktor Yanukovich.
The oblast organization of the VCU has the information about carelessness, with which the executive committees of local councils formed the lists of voters. In many cases these lists were not compiled within the term envisaged by law. And although the detailed analysis of the lists has not been conducted yet, there are data about their unsatisfactory quality. The quantity of voters in the Kherson oblast has not change much during 10 past years, in spite of the fact that the general number of inhabitants of the oblast decreased for 10% (excluding those, who are working outside the oblast).
The facts of criminal interference into the election process were also fixed.
Kherson buses, which, on 4 July, transported the adherents of V. Yushchenko to Kyiv to the ceremony of Yushchenkos nomination to the candidates to presidency, were stopped by road militia for 11 times: the militiamen checked the documents and lists of the people, who were in the buses. On the next day (5 July) the head of the Dneprovskiy district road militia of Kherson took away the registration numbers of all buses that were rented for the trip to Kyiv, confiscated the documents from drivers and warned the drivers that they were not permitted to leave the town. Similar cases with confiscation of documents from drivers by road militia were also observed in other district of the oblast, in particular, in the Novotroitskiy district of the Kherson oblast.
On 3 August, at 14:40, in Kherson, two unknown young men set fire to the car of Artem Kiyanovskiy, the head of the oblast organization of the PRP and the head of the fraction of “Our Ukraine” in the Kherson town council. The fire was extinguished, but the criminals were not caught.
The General Prosecutors office came to the conclusion that the “KAMAZ” driver did not attempt Yushchenkos life: “The General Prosecutors office did not find the features of attempt at the life of Viktor Yushchenko, a candidate to Presidents post, the leader of the bloc “Our Ukraine”, during the incident with the truck “KAMAZ” on 12 August on the road “Kakhovka – Genichesk””.
Valeriy Dolina, the general manager of the Kherson oblast state TV and radio company, rejected Yushchenkos request about the conclusion of the agreement about placing of the political agitation at the expense of the election fund. V. Dolina told that, because of technical reasons, he, allegedly, could render only 10 minutes for the entire period of the pre-election agitation to each candidate, informs the press service of Viktor Yushchenkos headquarters.
Press conference of Oleksandr Zinchenko in Kharkov
Zinchenko told that the headquarters planned to organize the calculation of the results of voting at the electoral stations, in order to obtain the results of the election as early as at the night just after the voting. For that the work is planned of about 165 thousand members of election commissions and observers at more than 33 thousand of electoral stations. The large-scale exit-poll is going to be conducted: 50 thousand respondents throughout Ukraine. The thorough research for checking of the lists of voters will be carried out with the aim to prevent the use of the “dead souls”. The special group of deputies looks for the solution of the problem of voting by the Ukrainians, who work abroad, and the number of such people is about 7 million.
Unemployment is one of the most serious problems in Ukraine, now its level is about 20%. So, one of the main tasks of Yushchenkos team is the creation of 5 million of workplaces; this index should become the basis in the assessment of the activities of the executive power officials. The Zinchenko gave an example: the real plan of development of the Kharkov aircraft enterprise, which would produce scores of airplanes AH-140; this plan is grounded on the cooperation with Russian “Aeroflot”. The distinct program also exists of the work on state order.
Zinchenko revealed the sources of the election campaign of V. Yanukovich: according to his words, this is the illegal privatization of the giants of Ukrainian industry, such as Krivoy Rog metallurgical plant, and the concealed budget means got at the expense of decreasing the minimal salary from 237 to 205 hryvnas. This money is planned to be spent for guaranteeing the victory of Yanukovich by giving the bribe to citizens in September in the form of increase of pensions and salaries, which had to be increased anyway.
O. Zinchenko also told about the mass violations of the law on election of the President and communicated that the headquarters had handed 92 complaints, thoroughly elaborated and confirmed by documents, to the Central election commission about such violations. He showed the video record, which had been seized from a militia major, who had shadowed Viktor Yushchenko during his vacation. The militiaman observed, with whom Yushchenko communicated, who visited him (the registration numbers of all cars that entered the territory, where Yushchenko rested, were written down in majors notebook), recorded his talks. Zinchenko remarked that the power transformed militia, prosecutors office and tax organs into the tool of political struggle with opposition. At the same time, according to his words, there are many honest militia officers, who refused to fulfill the illegal orders and warned Yushchenkos headquarters about the planned actions of the power. Zinchenko says that revelation of such methods in a civilized country would be equivalent to Watergate. But not in our country.
A short comment. In my opinion, the explanations given by a deputy of the Minister of Interior in the feature “Same toi” on the TV channel “YT-1”, who told that the secret video recording had been realized for the purpose of guarding of V. Yushchenko, are absurd. The ODA for guarding of high officials may be carried out only by the State department of safety, which was a separate organ of state power earlier, and now is a part of the USS. The Ministry of Interior has no authorities to realize the ODA concerning V. Yushchenko. The mentioned video record evidences that he was an object of operative work, but there were no grounds for such work in this case.
I reckon that the reaction of “Our Ukraine” to such facts as secret supervision and other brutal violations is inadequate. 92 complaints to the Central election commission are not enough, and I doubt that the CEK would consider these complaints quickly and objectively. I believe that “Our Ukraine” ignores such method as handing complaints to court against the illegal activities or passivity of the organs of executive power, organs of local self-government and their officials, although there are very many grounds for such complaints in Ukraine. The courts should be overfilled with such complaints, but nothing of this kind happens. Only the active resistance to the violations, both on the political and legal levels, would be able to reform the election campaign in the Eastern and Western Ukraine, which more and more resembles the fight without observance of rules by one of the rivals.
On the election campaign in Kharkov and the Kharkov oblast
The Kharkov group for human rights protection, jointly with the Institute of mass information and the international center against censorship “Article 19”, realizes the monitoring of mass media and election campaign. Here we present the review of the results of monitoring of the beginning of the election campaign.
The first stage of the election campaign has finished: nomination and registration of candidates to the Presidents post, forming of electoral districts and district election commissions. Now the lists of voters are compiled; the pre-election agitation and collection of signatures in the support of candidates have begun.
Summing up the events during the first six weeks of the election campaign in Kharkov, one can predict that the election-2004 would break records by many characteristics: expenditures for the election campaign, use of power for various kinds of pressure on voters in order to force them to support Prime-Minister Viktor Yanukovich, the “only candidate from power”, use of “dirty” election technologies against his main rivals and unequal access of candidates to mass media. The scale of the activities directed to the victory of the “only candidate from power” is astonishing. The city and the oblast are flooded with the big-boards and posters with the slogans “The Kharkov oblast – for Yanukovich”; placards with the same slogan are placed on public transport, cars, shops, etc. It seems that entire districts endorse Yanukovich, that some referendum was conducted. Numerous actions are organized with signing of the collective appeals in the support of Yanukovich: “Sportsmen for Yanukovich”, “Teachers for Yanukovich”, “Scientists for Yanukovich”, etc. All this resembles the time, when comrade Stalin was called “the best friend” of all categories of population. The visits to flats of citizens also have the mass character: there is the impression that the order was given to visit all dwellings of Kharkov, to learn whether Kharkovites are going to vote for V. Yanukovich and to collect the maximal number of signatures in this support. We have fixed the following facts.
1. Conduction of “sociological polls” – the interviewers ask, for which candidate the respondents are going to vote. Such “polls” are conducted allegedly on behalf of district executive committees, and the women, who collect these data, also ask to communicate the name and surname of the respondent, saying that they would be dismissed, if they would not present the corresponding lists to district executive committees.
2. Collection of signatures in the support of V. Yanukovich by persons, who are coming to flats of Kharkovites. The lists contain no data about the person collecting signatures. Sometimes the data about the electoral centers are written in the lists; for instance, we have seen the list with the hand-written headline “Electoral center No. 1B, the Academy of municipal economy”. Most often the signatures are collected by teachers and the workers of communal enterprises.
3. Collection of signatures at enterprises, establishments and organizations, in particular, budget ones. Heads of departments and workshops demand signatures from their subordinates, doctors – from their patients, etc.
Evidently, the organization of such “polls” and collection of signatures are impossible without the use of power, although it is prohibited by the Law of Ukraine “On election of the President of Ukraine”. This is demonstrated most vividly by public actions, such as the meeting-concert in the support of Yanukovich, which was organized in Kharkov on 14 July; from 50 to 10 thousand persons, by different estimations, took part in this action. The participants even did not conceal that they were made to come there by their direct bosses. Similar meetings were held in some district centers of the oblast.
At the same time, mass actions were observed aimed at discrediting of main rivals of the “only candidate from power”, most of all, Viktor Yushchenko. We have fixed the following facts.
1. Mass distribution through mailboxes of leaflets without dateline containing the insulting data about Yushchenko and his team: accusations of corruption, Nazi views, Russophobia, anti-Semitism, etc., as well as the falsified agitation materials with dateline, for instance, Oleksandr Morozs letter to voters, which reads that Yushchenko is allegedly selling Ukraine to Russia.
2. Provocative invitations to the non-existent meetings with Yushchenko – such invitations were found in district centers Dergachi and Valki. It is significant that, by the information of the press-service of the Kharkov regional headquarters of “Our Ukraine”, none of local newspaper or TV channel agreed to publish the information about these provocations, referring to the oral order; our monitoring of local mass media also did not reveal any information about these facts, except the party press of “Our Ukraine”.
3. Agitators of “Our Ukraine” are regularly threatened, they are detained during distribution of agitation materials. Some of them have turned to prosecutors offices and courts with the complaints against the illegal actions.
Analyzing local mass media, one can draw the conclusion that the press endorse the “only candidate from power” elucidating his activities only positively, or do not want to mention the election campaign at all. For example, the TV channel “Simon”, after the frank reportage about the meeting of 14 July, showed no materials about election for more than three weeks. At the same time, any criticism of V. Yanukovichs team is very venturesome. So, after the publication in the newspaper “Novosti Chugueva” (No. 32 of 7 August) of the article of Viktoria Tokar, a deputy of the town council, about the agitation for V. Yanukovich carried out by the officials of the executive committee in labor hours, editor of the newspaper Yuri Chumak was dismissed from his post, and later he got the proposition to leave the job “on his own initiative”.
Thus, all promises of the power to conduct the honest and transparent election are not, as always, kept. The beginning of the election campaign evidences about brutal violations. Unfortunately, almost nobody resists these violations; single complaints to law-enforcing organs instead of mass ones, absence of attention of mass media to these violations cause the impunity. If the situation would not change, then one can expect for the further intensification of administrative pressure on voters and the teams of opposition candidates.
Violations of rights and fundamental freedoms of citizens during election process: generalization of messages of human rights protecting organizations
The pressure on voters is practiced frequently. Such practices result in increment of fear and absence of freedom in the society, restricts the right of citizens for free choice.
In particular, the practices of administrative pressure are used in state and municipal organizations and enterprises: heads of workshops and departments demand from their subordinates to put their signatures in the support of candidates, doctors – from their patients; teachers are forced to visit the parents of their pupils, etc.
Workers are made to take part in meetings and other actions conducted in the support of candidate to presidency Viktor Yanukovich. For instance, such situation occurred at the meeting-concert in the support of V. Yanukovich conducted on 14 July on the central square of Kharkov, where, by different estimations, from 50 to 100 thousand persons were present. The participants even did not conceal that they were forced to come to the meeting by their bosses. Similar meetings were held in some district centers of the Kharkov oblast.
There were cases of dismissals because of political views. For example, a teacher of one of the schools of the Kharkov oblast was dismissed after her participation in the forum of teachers organized by “Our Ukraine”.
For many persons, which occupy the executive positions in the organs of state power and local self-government, the success of the election campaign directly depends on their post, which implies the widening of the practice of exertion of administrative pressure on the voters.
In many cases the realization of these or those rights, especially social-economic ones, are dependent on the political activity and support of the candidate from the power.
Numerous cases were fixed of spreading of untrue or insulting information about the candidates to presidency; at that the law-enforcing organs did nothing either for disclosure of the persons, who committed these actions, or for stopping such actions. During several election campaigns there were no court verdicts in the cases on distribution of untrue information by means of falsification of newspapers and leaflets or printing them without dateline.
The freedom of peaceful assemblies is abused. Courts prohibit to conduct meetings, demonstrations and pickets (most often groundlessly), and in some cases militia terminates such actions without court decisions, which contradicts Article 39 of the Constitution of Ukraine. For instance, on 30 August in the Odessa oblast (the Kominternovskiy district) a meeting was dispersed by militia without any court decision, which prohibited its conduction.
The cases are also observed of administrative or criminal persecution by law-enforcing organs of the activists of headquarters of the opposition candidates. At that the right for liberty and personal security is violated.
For instance, in many regions of Ukraine militia ceased the movement of buses and confiscated the documents from the drivers, who transported people for participation in the meetings in the support of V. Yushchenko. The agitators, especially the agitators for opposition candidates, are regularly threatened and detained during distribution of agitation materials. Some of them have already turned to prosecutors offices and courts with the complaints against the illegal actions.
Another case of persecution for political activities was observed in the Chernigiv oblast. On 21 July the agitation board in the support of V. Yanukovich was found in a state establishment -- the Priluki district directorate of economy and provisions, which violated Article 64 of the Law of Ukraine “On election of the President of Ukraine”. The conflict arose, in the result of which M. Kireev, according to his words, was beaten by representatives of the regional headquarters of V. Yanukovich. As it is known to human rights protectors, on 27 July another conflict occurred between the representatives of the headquarters of candidates V. Yanukovich and V. Yushchenko. In the evening of the same day the all-Ukrainian mass media published the information about the attack on the regional headquarters of candidate V. Yanukovich, and the participants of the conflict, who represented the regional headquarters of candidate V. Yushchenko (V. Labazov, V. Manko and M. Kireev), were wanted by militia. They learned about that only from the news of central TV channels.
On the next day V. Labazov, V. Manko and M. Kireev, the assistants of the MPs of Ukraine, voluntarily came to the local militia precinct and were interrogated. After the interrogation V. Labazov, the head the regional election headquarters, was taken into custody after the accusation according to Article 296 of the Criminal Code of Ukraine (hooliganism). In the connection with the abrupt aggravation of health, which occurred at the moment of detention, V. Labazov was taken to a hospital (under escort), where the microstroke on the background of morbus hypertonicus and ischemic heart disease was diagnosed. However, in spite of the aggravation of health, which was also caused by a “dry hunger-strike” that had been started by Labazov at the moment of detention, he was transferred to the pre-court incarceration cell. Contrary to the demands of the European Convention on the protection of human rights and fundamental freedoms and Ukrainian normative acts, the advocate was admitted to the accused only on 5 August. On 6 August the sitting of the Priluki town court of the Chernigiv oblast was held, at which the court issued the sanction for the arrest of V. Labazov and holding him in custody as a preventive measure. According to the data given by M. Kireev and V. Labazovs mother, several excesses took place during the court sitting, which evidenced about the biased attitude to the accused and the violation of the right to fair trial.
Human rights protectors have the materials (both printed and recorded by technical means), which can confirm that there were no signs of crime in the actions of V. Labazov, that he, V. Manko and M. Kireev only tried to fix the fact of violation of part 15 of Article 64 of the Law of Ukraine “On election of the President of Ukraine” and, on their own initiative, called militia to the place of conflict hoping to the unbiased attitude to the situation and creation of the protocol of the violation. These law-abiding actions caused the institution against them of criminal case for hooliganism, court decision about holding of V. Labazov in the preliminary prison and the written undertaking not to leave a place for M. Kireev and V. Manko. At the same time, neither the law-enforcers nor court became interested in the actions of Ya. Khodiuk, a worker of the headquarters, who, in the course of the conflict, had inflicted bodily injuries to V. Labazov, which was confirmed by the forensic expert. By the decision of the Chernigiv appeal court, V. Labazov has been released from custody with the written undertaking not to leave a place, but the criminal case against him is still investigated.
We reckon that the actions of law-enforcing organs and court regarding V. Labazov violate the demands of the European Convention on the protection of human rights and fundamental freedoms and the Ukrainian Constitution. Hence, we believe that the “Labazovs case” has the political character and is an example of persecution for political activities.
Some cases of the conduction of illegal searches were observed. For instance, the Kirovograd militia, under the pretext of examination of the building for check of the information about its mining, searched the election headquarters of one of candidates to the Presidents post and confiscated some documents. In Krivoy Rog the search of the headquarters of candidate O. Moroz was carried out during eight hours.
Such arbitrary actions are possible because of the existing drawbacks in the Ukrainian criminal-procedural legislation, which can worsen essentially after the adoption of the draft of the Criminal-Procedural Code, which would significantly decrease the guarantees of the protection of rights and freedoms during the pre-trial investigation even in comparison with the operating laws, and which does not meet the European standards in the sphere of human rights and fundamental freedoms.
Under such conditions the reaction of “Our Ukraine” and other participants of the election process to such facts as secret surveillance and other brutal violations is not sufficient. The number of the complaints handed to the Central Election Commission (92 complaints) is too small, and nobody may expect that the CEK would consider these complaints quickly and objectively. We reckon that the participants of the election process ignore such method as handing complaints to court against the illegal activities or passivity of the organs of executive power, organs of local self-government and their officials, although there are very many grounds for such complaints in Ukraine. The courts should be overfilled with such complaints, but nothing of this kind happens. There are several explanations of this situation.
In the course of the Presidential election campaign many human rights protectors come across the problem of illegal actions of the organs of state power and local self-government. Moreover, the human rights protectors tried to prove that these actions were illegal, since they evidently violated the Law of Ukraine “On election of the President of Ukraine”. However, the Ukrainian courts have started to reject the complaints, since, on the basis of this law, one may complain only against the actions of the participants of election process, and the power organs are not such participants.
For example, on 20 July 2004 the Leninskiy district court of Lugansk ceased the consideration of the case concerning the complaint of S. Dyakov against the actions of O. Efremov, the head of the Lugansk oblast state administration, V. Tikhonov, the head of the Lugansk oblast council, and the press service of the Lugansk oblast state administration, who abused the equal election rights and the procedure of the pre-election agitation, because they were not subjects of the election process.
Other court decision on the complaints of human rights protectors against the arbitrary actions of the organs of state power and local self-government (their direct participation in pre-election agitation) reads that these actions were committed not during the fulfillment by the officials of their professional duties, which is the obvious distortion of the legal norms and the principle of superiority of right.
Another drawback of court consideration is the impossibility to demand simultaneously the compensation both of the material and moral damage inflicted by the activities or passivity of power organs. The problem is also complicated by the fact that the terms of consideration of the appeal complaints are not observed and frequently such complaints are not considered until the end of the election. Thus, the goal of court protection is lost.
All mentioned facts evidence that court protection is not efficient during the election campaign. On the one hand, this happens because of drawbacks of the law on Presidential election, on the other hand – because courts use all possible grounds for rejection of such complaints or retardation of their consideration. Besides, citizens are permanently intimidated by the organs of executive power and law-enforcing organs, so they do not want to protect their rights actively.
Deprivation of non-governmental organizations of the right to appoint their observers at the election is alarming.
The Central election commission violates the law, when it refuses to register Ukrainian citizens as the observers from international organizations.
Will the observance of human rights become the basic demand at the collection of information from communication channels?
The facts evidence that the control of information is widely practiced in Ukraine. Moreover, the number of the facts of collection of information from communication channels in Ukraine is greater that in other countries. And the crime rate is growing. So, one can say that the methods of work of the empowered organs in this sphere are inefficient.
In the connection with the necessity to improve the system of supervision through communication channels, the Ukrainian Security Service developed, in 2003, the law draft “On monitoring of telecommunications”. On 7 August 2003 the draft was registered by the Supreme Rada of Ukraine. Yet, according to the results of the public hearings held on 26 November 2003, it needs some revision. Besides, the considered law draft is mainly focused on the technical side of the question of collection of information and practically does not regulate the procedure from the viewpoint of observance of human rights and fundamental freedoms.
Representatives of human rights protecting organizations, business circles and public organizations elaborated the alternative law draft “On interception of telecommunications”. This draft was registered by the Supreme Rada on 26 March 2004. The last version of the law draft, which has been discussed on 2 September, takes into account a certain part of remarks stated by representatives of business, public sector and the organs of state power.
This law draft, presented for consideration by MP V. Lebedivskiy, “stipulates legal and organizational principles of realization of interception of telecommunications, protection of constitutional rights and freedoms of Ukrainian citizens, foreigners and apartides, regulates interrelations of subjects in the sphere of interception of telecommunications during the ODA (including the intelligence and counterespionage activities, as well as the struggle with terrorism) and during pre-trial investigation”.
According to the law draft, the interception of telecommunications should be carried out on the basis of the principles of guaranteeing of human rights and fundamental freedoms, such as: interception of telecommunications only on the basis of the grounds envisaged by Ukrainian laws; distinct determination by court of the subject for interception; restriction and distinctness of terms of interception, prohibition of anonymous interception, prohibition of illegal interception of telecommunications.
Besides, a separate section of the law draft “On interception of telecommunications” gives the guarantees of the protection of constitutional rights and freedoms in the sphere of interception of telecommunications. In particular, part 4 of Article 25 of the Law “On interception of telecommunications” envisages the right of the person, who was the subject of legal interception, to obtain from the officials of the organs of interception the written explanations about the restriction, in the course of interception of telecommunications, of his/her rights and freedoms.
The article was also inserted to the law on the necessity of inclusion to the annual report of the Ukrainian ombudsperson of the data about the facts of violations, results of control over observation of human rights and freedoms in Ukraine connected with realization of interception, as well as the conclusions and recommendations directed at improvement of the state of guaranteeing of human rights and fundamental freedoms during realization of legal interception of telecommunications.
Evhen Zakharov (the Kharkov group for human rights protection) pointed out at the hearings that the discussion, which started in the room during consideration of the law draft, clearly revealed the main contradictions in this sphere. “Firstly, our people distrust the USS and are afraid that the special services would “wiretap the opposition”… They cannot entrust to the USS the control over themselves. Secondly, this is a question of priorities. The report was presented about the law draft, which, in fact, describes only technical side of the matter, but not the legal principles. The authors say that this was done deliberately, since the legislators referred to the laws, which already existed, and in which this problem had been already solved”.
Besides, Evhen Zakharov emphasized the necessity of openness of impersonal statistical information about interception of telecommunications. By the words of Mr. Zakharov, one of the judges of the Supreme Court made public the information that in 2002 Ukrainian courts had issued more than 40 thousand sanctions for the collection of information from communication channels. In other European countries the order this number equals to tens, hundreds and even thousands, but not tens of thousands. He also remarked that the obligations imposed by the state in the Law “On telecommunications” on the providers, who had to buy the equipment at their own expense, violated Article 1 of the first Protocol to the European Convention of human rights. So, it is important to prevent the presence of such norm in the Law, which will regulate the process of interception of telecommunications. “There must be norms about the compensation of expenses, everything must be done on voluntary basis”.
A. Baranov, a representative of the Kyiv city administration, told that the secrecy of the fulfillment by special services of their functions was the main contradiction in the sphere of interception of telecommunications. Yet, the society, represented by the Parliament and other civil institutions, are interested in the control of such activities. The main task, he said, is to introduce changes into the law draft “On interception of telecommunications” prepared by the USS and supplement this draft by the mechanisms that would prevent the violations of human rights. The punishment (including criminal) for such violations should be also envisaged.
Anatoliy Gerasimov, a deputy head of the USS, expressed an interesting idea about the law draft. He believes that the law should be adopted anyhow. “Yes, it will be bad, but it will exist”. Well, it is a very frank statement…
The law draft “On interception of telecommunications” was endorsed by overwhelming majority of the participants of the hearings. They also did not discard the possibility of integration of working groups for the development of alternative law draft “On monitoring of telecommunications” (No. 4042) and “On interception of telecommunications” (No. 4042-1).
The hearings adopted the Resolution, which recommended to the Supreme Rada of Ukraine to adopt law draft “On interception of telecommunications” No. 4042-1 in the first reading. In the opinion of the authors of the Resolution, this draft meets the requirements of the European Union, which regulate the activities of law-enforcing organs during interception and monitoring of telecommunications, guarantees the observance of human and citizens rights and is directed to the stable development of the market of telecommunications and the increase of its investment attraction.
So, we hope that the Supreme Rada will not adopt an ineligible law – we already have many such laws. We hope that the Supreme Rada will adopt the law, which will regulate distinctly the activities connected with interception of telecommunications and will contain the sufficient guarantees against misuses, which will guarantee the access of public to the information about the interference in privacy, which will give the opportunity to special services to work efficiently, but without violation of human rights and freedoms.
Access to information
Court acknowledged the passivity of General Prosecutors office
In the end of 2003 I turned with request to the General Prosecutors office of Ukraine, in which I asked to render me the following information:
In the reports of the US State Department on the situation with human rights in Ukraine for 2000, 2001 and 2002 it is stated, wrongly, in my opinion, that “militia and officers of penitentiary system torture and beat the detained and incarcerated”. By my observations, testimonies about beating of the accused and condemned by the officers of preliminary prisons and penitentiary establishments are rather rare, and testimonies about beating of the detained by the officers of inquiry organs are often. According to Article 40 of the Constitution of Ukraine, Articles 28, 29, 32 and 33 of the Law of Ukraine “On information”, Articles 34 and 35 of the Law of Ukraine “On printed mass media (the press) in Ukraine” I ask to give me in writing the following data.
1. Number of the officers of the organs of the Ministry of Interior of Ukraine and the State penitentiary department of Ukraine, who were condemned after Articles 365 and 373 of the Criminal Code of Ukraine in 2001 (Articles 166 and 175 in the version of the CC of 1960), 2002 and the first half of 2003, if there were the facts of condemnation, by years and articles separately. I also ask to give the data about the number of the officers of the organs of the Ministry of Interior, who were brought to disciplinary responsibility for illegal actions against the detained, and the number of the officers of system of penitentiary department, who were brought to disciplinary responsibility for illegal actions against the condemned and held in preliminary prisons in 2001, 2002 and the first half of 2003.
2. Number of the complaints against the illegal actions of the officers of the organs of the Ministry of Interior of Ukraine and the State penitentiary department of Ukraine, number of the satisfied complaints, number of the officers brought to disciplinary responsibility, number of the condemned officers.
3. Number of the cases, when Article 127 was applied to state employees. (By the data of court statistics, in the first half of 2003 courts issued 15 verdicts after Article 127 of the CC of Ukraine (application of torture)).
4. Number of the sanctions issued by prosecutors in accordance with part 3 of Article 263 of the Administrative Code of Ukraine (ACU) about administrative detention for the term more than three days and the number of cases of administrative detention, when a prosecutor was informed about the detention for the term more than three hours. (According to Article 263 of the ACU, “a person, which violated the rules of circulation of narcotic drugs and psychotropic substances, can be detained for the term up to three hours for compilation of protocol, and, if necessary, for identification of the person, conduction of medical examination, clarification of circumstances of acquisition of the confiscated narcotic drugs and psychotropic substances and their analysis – for the term up to three days with writtem notification of prosecutor in 24 hours from the moment of detention, or for the term up to ten days after the sanction of prosecutor, if the offender has no documents identifying him).
I received the advice of delivery on 8 January 2004. Yet, I got no response during six weeks, so, on 9 March I against turned to the General Prosecutor with the following letter:
“According to Articles 32, 33 and 34 of the Law of Ukraine “On information” I ask to inform me in writing whether you are going to satisfy my informational request, the copy of which I am attaching to this letter, and if you would not satisfy my request, then explain the reasons, please. The written response is needed for handing the appeal against the refusal in compliance with the operating laws”.
On 19 March I received the advice of delivery, but I again got no answer. I waited for three months and then, on 19 June, I turned to the Pecherskiy district court with the complaint, according to chapter 31-A of the Criminal-Procedural Code, against the passivity of the General Prosecutors office of Ukraine.
The court consideration was appointed on 2 August, about which I was informed by a subpoena sent to me in a recommended letter with the advice of delivery. At the trial the representative of the General Prosecutors office insisted that the General Prosecutors office had not received the first request, the second one had been lost, and they were carrying out the service investigation for its search. I demonstrated the both advices of delivery signed by the same person. After that judge Zhanna Bernatska satisfied my complaint and obliged the General Prosecutors office to respond to the request.
It is noteworthy that the request was written not on the blank of the Kharkov group for human rights protection, but on a usual sheet of paper, since our court distinguishes between the requests handed by physical and official persons. If I would turn with the request as an official person, then the court would not recognize my right to information (as the right of a physical person) as violated. I faced such situation three years ago, and all court instances – the Pecherskiy court, Kyiv Appeal Court and the Supreme Court of Ukraine – refused to consider the case per se. So, the only way out is to turn to the European Court, and I am going to do that. Our judges believe that only physical persons may be subjects of the right to information. Well, I hope that the European Court will make them change their mind.