“Prava Ludiny” (human rights) monthly bulletin, 2005, #04

Ministry of Interior of Ukraine ascertained the connection of 30 officials of power organs of the Nikolayev region with falsification of the election of the President of Ukraine. As a result of checks numerous facts of falsification of the election were disclosed.

According to the information communicated by the PR-department of the Ministry of Interior of Ukraine, the majority of falsifications were connected with the voting with false off-list tickets and on behalf of dead, non-existent or temporarily absent citizens. In particular, as a result of the check of one third of the used off-list tickets more than 700 citizens were found (out of 1300 interrogated), who did not vote at all.

Falsification was carried out after two standard schemes:

l  the groups were formed in the regional center, which groups went for voting to the districts (the participants of these groups, in particular, students, got 80-100 hryvnas of remuneration);

l  officials of state administrations in the districts of the region exceeded their service authorities, brutally meddling in the work of election commissions, sometimes the officials personally falsified the results of the election, even in presence of members of the commissions and observers.

By the preliminary calculations, more than 1000 citizens took part in falsifications of the election in the Nikolayev region, among them 30 officials of power organs, from the heads of village councils to the heads of state district administrations.

All materials about the disclosed violations have been directed to the prosecutor’s office. The checks are continued.

8 April 2005

Militia looks for two suspects of organization of violations at the election of the mayor of Mukachevo (the Zakarpatska region) on 18 April 2004, as well as violations in the course of the first and second tours of presidential election in October and November 2004. This information was communicated by «Ukrainski novyny» with reference to the press-service of the Ministry of Interior.

By the data of the press-service, militia looks for Ivan Chubirko, born in 1970, a former councilor of the head of the State administration of the Zakarpatska region, and his brother Mykola Chubirko, born in 1977. Both suspected are inhabitants of Mukachevo. The court prescribed them the arrest as a preventive measure. Militia appeals to everybody, who knows the place, where these citizens stay, to inform the nearest militia station. Earlier «Our Ukraine» accused Ivan Chubirko of participation in falsification of election of Mukachevo mayor on 18 April 2004. According to the words of the members of «Our Ukraine», Chubirko, being a deputy of then governor Ivan Rizak, organized all work concerning the movement of criminal groups and coordination of the actions of criminals and law-enforcers of Mukachevo with the regional power.

Besides, by the words of opposition, Chubirko is a relative of Viktor Medvedchuk: husband of a sister of Oksana Marchenko, the wife of the SDPU (u) leader. As it is known, the election in Mukachevo was acknowledged as falsified by all international observers. On 23 April 2004 the Mukachevo town court restored Vasyl Petiovka on the post of Mukachevo mayor. He was elected to this post in 2003.

4 April 2005

The Bilopolskiy local court of the Sumy region condemned a 53-year-old woman, a member of the district election commission of the town of Vorozhba, to 5 years of incarceration with the probation term of two years.

At the same time she was deprived of the right to occupy any posts in the commissions of all levels at elections and referendums for the term of 18 months.

During the election this woman, whose name we will not mention, came to the Sumy region from the Donetsk region and got the temporary propiska in one of settlements. At the first tour of Presidential election of 31 October she was a member of an election station in the town of Vorozhba of the Bilopolskiy district, informs the press-service of the Sumy regional prosecutor’s office.

After 20:00, when the calculation of bulletins was completed, it appeared that candidate to President’s post Viktor Yushchenko got the majority of votes. At that time the woman had the access to the protocols signed by the members of the election commission. She took two protocols and entered there false data in favor of candidate V. Yanukovich.

The falsified data were transported to the Bilopolskiy territorial election committee and taken into account during the final calculation of votes.

To President of Ukraine V. Yushchenko

12 April 2005

Respected President Yushchenko!

The Ukrainian people, which expressed its will at the past election and defended its choice at the Maydan, realized, being the only carrier of sovereignty in our country, its sacred constitutional right to elect the President – it elected you.

Electing you to the President’s post and defending yours (and, in essence their own) victory, the Ukrainian citizens, maybe for the first time in the history of our state, filled with the real substance the constitutional provisions on sovereignty of the people and free people’s will (Articles 5, 69 and 71 of the operating Constitution of Ukraine). They elected their President for the term and with the authorities envisaged by the Basic Law.

Unfortunately, the election process, which was carried out in strict confrontation with the system, a priori founded on the illegitimate and anti-democratic principles, resulted, because of political compromise, in creation of Law of Ukraine of 8 December 2004 No. 2222-IV «On introduction  of changes into the Constitution of Ukraine». Assessing this legal act from juridical and social viewpoint, one should state the following:

1.  Law draft No. 4180 turned into the Law with fundamental procedural violation: the text was put to the vote, which noticeably differed from one that had been considered by the Constitutional Court, although, in accordance with the Basic Law of Ukraine, in such case the changed law draft had to be considered again by the Constitutional Court.

2.  Law No. 2222-IV, in our opinion and by the conclusions of many specialists, is self-contradictory and does not meet the demands of the modern stage of development of the Ukrainian state, especially if to take into account the European prospects of Ukraine, which have appeared after your election to President’s post.

3.  Finally, and it is most important, Law No. 2222-IV not only do not coincide with, but is even contrary to the vector of people’s will, directed at the election of the head of the state for the term stipulated by the Constitution and with the authorities determined by the Constitution.

This moment must be elucidated in details. According to Article 103 of the Constitution, the President of Ukraine is elected for the term of 5 years, and his authorities are stipulated in Article 106. It should be noted that item 2 of Article 1 of the Law of Ukraine «On election of the President of Ukraine» reads that the President is elected for the term stipulated by the Constitution. The only possible conclusion may be drawn from that, the conclusion, which is unambiguous both from judicial and political standpoint: electing the President of Ukraine the people gives him the authorities, fixed in the Constitution valid at the moment of election, for the term of 5 years. Another interpretation has nothing common with democratic principles, even if to abstract from the formal jurisprudence. So, the MPs, which voted for the «political reform», had neither juridical nor moral right to meddle, in this way, in the sphere of election of the head of the state by people. Such meddling directly contradicts the principle of people’s sovereignty and the exclusive right of people to establish the constitutional order. Besides, Law No. 2222-IV, which, in fact, introduces the possibility of pre-term cessation of some authorities of the President, contradicts Article 108 of the Constitution, which establishes only the possibility of pre-term cessation of all President’s authorities. One can say about the change of President’s authorities only in the connection with new cadence of the next President.

The political expediency may not dominate over people’s will, and the people’s will may not be a subject of lobby agreements of a group of persons, even those, who have deputies’ authorities.

Respected President!

In your inaugural speech on Nezalezhnost Square you said, in particular, that lawlessness could not be a norm in the state and that you saw Ukraine as a state guided by the principle of superiority of right. In the end of the past year Ukrainian citizens defended the superiority of right. Now it is yours turn, as the guarantor of the Constitution. We do not deny the expediency of introduction of changes into the Constitution, but we are sure that such changes, directed at the maximal guaranteeing of citizens’ rights and freedoms, as well as the efficient functioning of the state apparatus in the context of the European prospects, must be a conclusion of public discussion and irreproachable juridical procedure. Otherwise people’s sovereignty would be trampled, the principle of superiority of right would be violated, and legitimacy of the Basic Law would become doubtful.

Taking into consideration everything above-said, we are turning to you with the plea to take all needed juridical and political measures for the protection of the operating Constitution and, at the same time, for initiation of the process of really democratic constitutional reform.

Sincerely yours,
Alliance «Maydan»

Five years have passed between the beating and the decision of the European Court. During 2.5 years citizen Afanasyev strived against the Ukrainian justice. The same time was taken by the correspondence with Strasbourg court and consideration of the case. Aleksey Afanasyev was beaten in March 2000. Militia officers detained the 35-year-old businessman on suspicion of fraud. According to the words of Afanasyev, he was handcuffed and beaten in the Kyivskiy district militia station. Under the pressure of militiamen Afanasyev signed all documents. Three days later accusation was pronounced against him, but he was released after giving a written undertaking not to leave a place. After the militia station Afanasyev got to a hospital. Medics fixed numerous bodily injuries: bruises, contusions and an ear trauma that resulted in partial deafness. The forensic expertise confirmed that the time of infliction of these traumas coincided with the time, when Afanasyev had stayed in the district militia station. A month later, after leaving the hospital, Afanasyev turned to the prosecutor’s office. By words of advocate Arkadiy Bushchenko, his client handed the appeal about institution of a criminal case: he asked to investigate the circumstances of his beating and to punish the guilty. The prosecutor’s office of the Kyivskiy district rejected Afanasyev’s complaint, referring to the «absence of corpus delicti». However, the materials of the case evidence that after Afanasyev’s complaint the militia officers were summoned to the prosecutor’s office for «questioning».

«The militiamen, naturally, told that they were not guilty. Afanasyev, they said, slandered, because he wanted to dodge criminal responsibility for his deeds», tells Bushchenko.

Then «the case of Afanasyev» began to wander from one prosecutor to another, it was opened and it was closed for several times. In fact, investigation of the case was started a year  after the incident, when there remained almost no chances to find some essential proofs. New expertises were conducted. The second expertise did not disclose any bodily injuries. The third one, which was carried out by the experts of the Kyivskiy main bureau of forensic expertises confirmed that the beating had taken place.

«All that lasted for a long time», tells the advocate, «and lasts until now, since I have no information that investigation of this case has been completed and there are some positive or negative results. My client also has no information».

According to his own words, A. Afanasyev turned to the European Court because of hopelessness, when he despaired of court consideration of his case in Ukraine. In September 2002 Aleksey and his advocate handed the complaint to the European Court. The complaint was accompanied with several hundreds of documents. In the complaint sent to Strasbourg Aleksey Afanasyev accused Ukraine of violation of the European Convention on the protection of human rights («cruel treatment of a person staying in custody and absence of efficient methods of legal protection»). Correspondence with the European Court lasted for 2.5 years. Human rights protectors say that it is not too much for such cases.

As a result, the European Court recognized that Afanasyev had been beaten in militia and took the decision about compensation – the so-called «fair indemnification». If the government would not appeal against this decision, then Ukraine would have to pay, within three months, 8 thousand euro (6.5 thousand of compensation and 1.5 thousand of court expenses) to her citizen Aleksey Afanasyev. Human rights protectors are sure that Afanasyev will get this money. There were no cases yet, when Ukrainian government did not execute the decisions of the European Court.

A. Afanasyev is satisfied with the verdict of Strasbourg judges: «Thank God, they punished the country. It would be better to punish the militiamen. Yet, I will not turn anywhere, since I am almost sure that they would not be punished. There are very many cases like mine».

By words of law-enforcers, the decision of the European Court cannot influence the punishment of the guilty. Konstantin Masliy, the head of the service of internal safety of the regional department of the Ministry of Interior, says that if there is prosecutor’s resolution about the refusal to start a criminal case, then his agency cannot conduct any investigations. «I have no right to carry out private investigation», he stated.

«The case of Afanasyev» created a precedent. For the first time a court of such high level acknowledged the application of violence by Ukrainian law-enforcers. By the data of Kharkiv human rights protectors, at least 40 similar complaints are waiting for consideration in the European Court.

Media-group «Objektiv»

On 31 March the Feodosia newspaper «Kafa» won the trial against a private person. The trial lasted since the middle of 2003. The claim was connected with the demand of the private person to refute the information published in the newspaper.

Editor Irina Prokopiuk told the Institute of mass information that the material had been published in the newspaper about the raid of representatives of the town executive committee for disclosure of illegal traders in the resort zone. The journalists represented two points of view: of representatives of the town executive committee and of an illegal trader. The latter turned to the newspaper with the demand to refute the information, given by the executive committee, that he, being an invalid, had to have the corresponding documents for trading.

Irina Prokopiuk told that several similar suits were brought against the newspaper during last time, and the newspaper won all these cases. The latest case has been considered mainly in the light of Article 34 of the Civil Code, which reads that a journalist, who obtains information from a state official at the time of fulfillment by the official of his service duty, has the right not to check this information, which is regarded as authentic.

The claimant demanded from the newspaper to recompense him the moral damage equal to 10 thousand hryvnas. By the words of the editor, it is rather great sum for the newspaper. Ms. Prokopiuk stated that lately judges had become very competent and careful in the cases concerning mass media. She added that she even had not resorted to advocate’s services.

1 April 2005

Respected President Yushchenko!

When we were on Maydan, you told us about openness of power. We have come for the promised! The victory of people in the Orange revolution, which lead you and your team to power, became an evidence of principal negation by the society of old, Kuchma’s system of organization and functioning of the power, the main features of which were, in particular, clannishness, internal character of taking decisions, closeness from citizens, fear of free informational sources.

However, we believe that inheritance by the new power of the odious practice of issuing «secret» normative acts with classification «not for publishing» contradicts the above-stated principles and the declared intentions on the allegiance to democracy, development of jural state and acknowledgement of the values of civil society.

We understand that every state must have its secrets. Yet, the order of classification of normative acts should be distinctly determined by law.

We also know that the classification «not for publishing» is not envisaged by any legislative or normative acts, and that even a legally classified document must contain its title, but not only number and date, like now. Even the classification «for service use only» cannot be regarded as legal, since no Laws mention about it.

When the present power was the opposition yet, it unmasked such actions of the «old power», which concealed, under the restricting classifications, its corruption deeds, internal agreements and unprecedented amounts of social comforts for top nomenclature, which were in no way envisaged by law. This is confirmed with, for example, President’s Edicts No. 1180/2002 of 17 December 2002 «On regulations on the State administrative department» and No. 1213 of 24 December 2002 «On additional measures for material provision of workers of the Supreme Council of Justice», which edicts were revealed by Yulia Timoshenko in the end of 2002. These edicts had the classification «not for publishing». Valentina Semeniuk told that Igor Bakay sold to private persons, through the State administrative department, the objects, forbidden for privatization, in particular, Crimean sanitariums, and made it using the decisions with the same illegal classifications.

However, the yesterday’s opposition, which has become the power now, does not hurry to publish the secrets of Kuchma’s power, including two above-mentioned Edicts.

«The national program of development of energetics up to 2010» is still hidden under the classification «for service use only», as well as the agreement of 29 October 2004 between the company «Naftogaz Ukrainy» and «Gazprom» on the creation of gas consortium. The latter agreement is closed even for the members of supervisory board of «Naftogaz Ukrainy». We also got the information that the Ministry of Justice classified as «for service use only» the conclusions of experts of the Council of Europe on the draft of the Criminal-Procedural Code. There are many other examples.

The situation at the local level is even worse. There obviously criminal deeds are hidden under the classification «for service use only», such as distribution of Kyiv land among the high-ranking private persons. Moreover, the local organs of state power and local self-government do not publish the normative acts, issued by them, without classification of these documents. So, the people, whose rights are violated by these acts, even cannot complain to court, since they learn about them only after expiration of all terms for complaint.

When the people overcame Kuchma’s regime and lead to the state posts those, who now call themselves «new power», the people expressed its will to purge the state of the features of Kuchmism -- to create new, open and transparent system of relations between the people-sovereign (Article 5 of the Constitution of Ukraine) and the state as an organization of public power, responsible to the people (Article 3 of the Constitution). Democracy implies well-informed people, otherwise it is not democracy.

According to Articles 6 and 19 of the Constitution of Ukraine, the organs of state power and their officials exercise their authority within the limits established by the Constitution and in accordance with the laws of Ukraine. Use of the classification «not for publishing» (or similar ones) is not envisaged by any laws. At the same time, Article 34 of the Constitution reads that the access to information «may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice». Now the only law of this kind is the Law of Ukraine «On state secrets», which recognizes only such classifications as «especially secret», «absolutely secret» and «secret».

Thus, the practice of issuing the «secret materials» not only contradicts the democratic demands, but also is illegitimate, except the acts, which are affected by the Law of Ukraine «On state secrets».

We have to state that the reaction of power to the open letter, placed on the site of «Maydan» (http://www2.maidan.org.ua/n/petit/1107202424), which letter was initiated by co-chairman of the Kharkiv group for human rights protection Evhen Zakharov and supported by hundreds of Ukrainian citizens and scores of public organizations, has not went beyond formal responses.

And these responses only strengthen our anxiety that the information, concealed from people, is not really a state secret, therefore it was not classified in accordance with the Law of Ukraine «On state secret».

And what hinders the publication of Leonid Kuchma’s edicts, which do not concern the appointments to the USS, but contain, as far as we know, the orders about awarding of officials, illegal amortization, «laundering of taxes through non-existent firms», etc.? Are there legal grounds for the concealment of such information?

It is sad to read the response of Oleksandr Zinchenko (se above) to human rights protectors Evhen Zakharov, in which the State secretary in fact justifies the actions of the former regime, regarding a President’s edict (not a law) as the sufficient reason for not-publishing of the normative acts. It is especially strange if to take into account that we know already, what actions are covered by Kuchma’s edicts.

The answer of the Ministry of Justice to Evhen Zakharov (http://maidan.org.ua/static/news/1113816463.html) justifies the practice of illegal classification with the argument that «the information created at the expense of state budget is a state property» and that «the owner of information has the right to realize any legal actions regarding his property». Well, according to this logic one can say that the state must not publish any legal acts at all. If to continue to play these pseudo-logical games, one can come to absurd. So, if information, a normative-legal act in our case, is an object of property, and the owner (the state) defines the regime of access (that is call it confidential), then this property can change the owner. Then it is possible to ask the head of the Fund of state property to offer for sale some President’s edicts with classification «not for publishing», since normative-legal acts do not belong to the list of the objects of state property forbidden for privatization.

We, participants of the Alliance of public activists «Maydan» and activists of all-Ukrainian public organizations «PORA!», believe that, being citizens of Ukraine, we have the right for information; being taxpayers, we have the right to know, for what our hired workers spend our money; being the participants of the actions «Ukraine without Kuchma», «Stand up, Ukraine!» and the Orange revolution, we want to believe that Viktor Yushchenko and Yulia Timoshenko have nothing to conceal from our society.

Continuing the joint actions for achievement of our goal – development of civil society in Ukraine, creation of mighty jural state, responsible to the society, we demand:

1.  To make public all, without exception, normative acts, illegally classified by the former power.

2.  To stop this illegal practice.

3.  To publish all normative acts on the local level.

We appeal to you, the President of Ukraine, to destroy decidedly the greatest in Ukraine «gravitation center of corruption» – the practice of illegal classification of normative acts. This practice was one of the main reasons of appearance and development in the society of legal nihilism, «phone right» and the laws «not for publishing».

We reserve the right to ourselves, in any case of illegal appearance of a «secret» act, to strive, with legal methods and by means of direct public action, for publication of the contents of such act or the official explanation of impossibility of such publication.

Printed from Maydan. http://maidan.org.ua

Permanent address of this page in the Internet: http://maidan.org.ua/static/mai/1114476014.html

On 26 April, about 4 p.m., the action «For printing» was held near the residence of the President of Ukraine at Bankova Street. Participants of the action protested against the practice of illegal classification of normative-legal acts, in particular, the use of classification «not for publishing», not envisaged by any Ukrainian law, regarding President’s edicts and the documents of other organs of state power.

The all-Ukrainian organization «PORA!» and the Alliance of public activists «Maydan» demand from the power not to exceed the bounds of the Law «On state secrets» and to publish the documents, which are liable to this Law. Besides, they demand to publish the illegally classified normative-legal acts of Kuchma’s regime, and to make public all, without exceptions, documents of the organs of local power and local self-government, as it is stipulated by Ukrainian legislation.

The action was merry and venomous. The participants not only organized the ceremonial carrying-out of a «secret Edict», but also the use of «newspapers not for reading», «food not for eating», «clothes not for wearing» and «condoms not for using».

The State Secretariat got, instead of the traditional bread and salt, a great burger with Edicts.

The organizers of the action carried to the State Secretariat a letter, which explained the essence of their demands and insincerity of the deeds of new power. In what follows we present the text of this letter.

The sense of the right for information is the possibility of every person to collect, store, use and spread information orally, in writing or in other way by his wish. The right for information is an indefeasible right not only of journalists, but also of any citizen, foreigner, apatride and juridical person. This right is one of the corner stones of development of the efficient civil society, because only well-informed people have the opportunity to use their rights, to take the active part in taking of decisions on the local and state levels; only the officials, who inform about their activities, work openly and transparently, enjoy the confidence of their people.

The Ukrainian legislation regulating the right for information is, unfortunately, improper. Therefore, the practice of its application is very far yet from the European and international standards, although certain progress is observed lately in this sphere. Now it is necessary to accelerate this process, to teach our officials to work with information, mechanisms of its publication and presentation, to initiate the revision of traditional, but imperfect approaches in this sphere. This problem should be solved by joint efforts of public organizations and state agencies.

On 19-22 April the seminar-training «Freedom of information» for state officials was held in Kyiv. The seminar was organized by the Kharkiv group for human rights protection, British NGO «Article 19» and the Institute of mass information. The training was made after new technology: during first two days the experienced trainers taught the group of state employees, officials of local self-government and representatives of non-governmental organizations, and after that the former pupils worked as trainers.

The officials of the Secretariat of the President of Ukraine, the Ministry of Justice, Ministry of Interior, ombudsperson’s apparatus, appeal and local courts from the entire country actively participated in the trainings, discussions, brainstorms and role games. They familiarized with the basic principles of the freedom of information, learned about peculiarities of the national right concerning the access to information and certain (sometimes groundless) restrictions of this right, as well as mechanisms of processing of informational requests. Jointly with the organizers of the action, all its participants came to the conclusion that a number of measures had to be taken for improvement of the situation in the informational field of Ukraine:

1.  To publish crucial, socially important information, even without the request for such information.

2.  To impose on special personnel the responsibility for guaranteeing of the access to information.

3.  To carry out the proper training of informational officials and other state officials (including the top ones).

4.  To improve or to create (if do not exist) the efficient system of management of information and records.

5.  To propagandize the law on the freedom of information, to familiarize the wide public with the norms of this law.

6.  To report on the activities in the sphere of freedom of information.

All these measures should be realized in complex and permanently. In particular, it is necessary to adopt, as soon as possible, the national law on the access to information, which would correspond to the international legal norms in this sphere and the obligations of Ukraine. By the way, such law draft has been prepared by the experts of the Kharkiv group for human rights protection, and this draft can become a basis for creation of the new law.

I sent you the appeal (letter No. 07/05 of 31 January 2005) on termination of the practice of illegal classification of normative-legal acts, which was received by the Secretariat of the President on 3 February.

During the period from 28 January to 1 March your Edicts got the illegal (not envisaged by any laws of Ukraine) classification «not for publishing» (the list of these edicts are attached), so these documents were concealed from the society contrary to the demands of Articles 6, 19 and 34 of the Constitution of Ukraine and the principle of openness of power declared by you. Unfortunately, we have to state that there has been no response to the appeal, which is a brutal violation (as we understand, because of the lack of respect to the law or negligence of workers of the Secretariat) of the Law of Ukraine «On citizens’ appeals», which stipulates the term of one month for reaction. During this time signatures under the letter were collected through the site of «Maydan» www.maidan.org.ua. The letter was signed by 32 citizens’ associations and 580 persons, not indifferent to the problem of openness of power: lawyers, programmers, state employees, journalists, scientists, businessmen, students, artists, literary men, actors, musicians, etc. The comments to the signatures evidence that almost all these people were active participants of the election campaign and the Orange revolution: they voted for you, our President.

We believe that you have nothing to conceal from us. Yet, your edicts are willfully and illegally classified by some officials of the Secretariat. So, that time I am sending you the collective appeal.

We hope that your words about openness and transparency of power, which are so shamelessly trampled by unscrupulous officials, will become true: the illegal practice of classification will be stopped, and all illegally classified normative-legal acts will be made public.

In our opinion, the most important moment is publication of such acts, issued by the gone power, since, we reckon, these documents conceal either privileges and corruption activities of top officials, or lobby political agreements.

Respected President Yushchenko!

We supported you during the election campaign and support now, connecting with President Yushchenko our hopes for the progress in transformation of Ukraine into a jural state, responsible to citizens, the state, where the basis constitutional principle of superiority of right would be realized. That is why we consider the probable turning to court as a deplorable, forced, but necessary for the protection of Right and spirit of the Orange revolution, step. Yet, maybe it would be the only possible way to make the officials, who, consciously or subconsciously, discredit the new power, obey laws.

At the same time we are sure that your immediate and legal decision will settle the described problem in full.

With true respect,

Evhen Zakharov,

co-chairman of the Kharkiv group for human rights protection, head of the board of Ukrainian Helsinki Union of human rights, member of the board of international union «Memorial»

16.03.05

***

To co-chairman of the Kharkiv group for human rights protection E. Zakharov

 

Respected Mr. Zakharov!

On the instruction of the President of Ukraine I am informing you that your request on realization of citizens’ right for information has been considered.

As it is known, President of Ukraine V. Yushchenko more than once pointed out the necessity of strengthening of the principles of openness, publicity and transparency in the activities of the President of Ukraine and the organs of state power. The head of the state believes that the relations between the power and citizens must be based just on these principles.

Introduction of this approach into the activities of the head of the state and the organs of state power is one of the guarantees of realization of the constitutional right of citizens to take part in management of state affairs, as well as the right to collect, store, use and distribute information orally, in writing or by other means at their own discretion. At the same time, it should be taken into account that, according to Article 34 of the Constitution of Ukraine, realization of citizens’ right for information can be restricted, in particular, in interests of national safety, territorial integrity or public order.

Taking into account this constitutional norm and Article 57 of the Basic Law, according to which it is obligatory to bring to notice of population the laws and other normative-legal acts that stipulate rights and duties of citizens, President’s decree No. 503 of 10 June 1997 establishes the order of official publication of normative-legal acts and their coming into force. At that it is envisaged that the acts of the Supreme Council, President of Ukraine, Cabinet of Ministers of Ukraine, which have no social significance, may be not published by the decision of corresponding organ. These acts and the acts with restricting classifications are officially published by sending to proper state organs and organs of state power and bringing by them to the notice of establishments, agencies, organizations and persons, to whom these acts apply (Article 7).

President’s Decrees of 28 January 2005 Nos. 116 and 117, which are mentioned in your request, are not connected with rights and duties of citizens, are not normative-legal acts, so they have no features, according to which they must be obligatorily published. These Decrees also have no social significance, but are the acts of individual character concerning the appointment and dismissal of heads of regional organs of the Ukrainian security service. Under such conditions publication of the mentioned Decrees was carried out by sending them to corresponding agencies and organizations, as well as to the persons, on which their action extends.

At the same time, I am informing that the President of Ukraine has ordered to the Cabinet of Ministers of Ukraine to prepare, taking into account the provisions of international legal acts and world experience, the propositions on the improvement of laws that regulate the relations in informational sphere, for the purpose of improvement of normative-legal provisions of transparency and openness of the activities of the head of the state, the organs of state power and organs of local self-government, prevention of ungrounded restriction of realization of citizens’ right for the access to information.

Moreover, on the commission of the Head of the state, the instructions have been changed in the Secretariat of the President of Ukraine, which instructions artificially and baselessly restricted the access of citizens to information.

Truly yours,
O. ZINCHENKO
04.04.05

On 23 March the press conference of the Alliance of public activists «Maydan» was held in UNIAN. The press conference was devoted to termination of the practice of illegal classification of normative-legal documents. In what follows we present the press release of this action and the second open appeal to the President.

Declaration of Viktor Yushchenko, then a candidate to President’s post, of his allegiance to the principles of openness of power, its responsibility to citizens and the course towards guaranteeing of the principle of superiority of power gave people the hope and even confidence that the new power, created, supported and defended by Maydan, will have nothing common with the overthrown regime and that the new team, understanding the source of its victory, will never be far from people and will have nothing to conceal from citizens.

This sureness did not stagger even when we observed, with surprise, continuation of the odious practice of issuing by state organs of secret normative-legal documents, classified «not for publishing» and «not for printing», which classifications were not envisaged by any Ukrainian laws, by which, according to Article 19 of the Constitution of Ukraine, power organs and their officials had to be guided. We were sure that the reason of this shameful practice was in the inert thinking of state officials, many of whom had begun to work in Kuchma’s time, «survived» the Orange revolution and continued to work according to old rules.

So, the Open letter to President of Ukraine with the demand to stop the illegal practice of classifying of normative-legal acts, initiated and sent to the head of the state by co-chairman of the Kharkiv group for human rights protection, head of the board of Ukrainian Helsinki Union of human rights Evhen Zakharov, had the aim to draw the attention of Viktor Yushchenko to the existence of this problem and necessity of its settlement.

Alas, the expectations have not justified until now. Except the superficial formal reply of state secretary Zinchenko, there was no reaction of the President or at least his Secretariat (in what follows we adduce this Zinchenko’s answer). So, the Law of Ukraine «On citizens’ appeals», which envisages the obligatory written response of the organs of state power and their officials to a written request within a month, has been violated.

In this situation our choice, the choice of Alliance «Maydan», is not too wide. We can either protect legality and our rights in accordance with legal procedure, or to submit to violation of law and neglect of the rights of citizens. The first way is very arduous and difficult, taking into account the probable defendant, and the second one is fundamentally and professionally inadmissible. So, we are making the second attempt.

On 16 March Evhen Zakharov directed the second letter with corresponding demands to the President. The letter was signed by 580 citizens and 32 public organizations, which signatures had been collected since the publication of the first appeal.

We declare: today we have no reasons to suspect Viktor Yushchenko of inclination to ignore laws, and we regard the probable claim not as an attack against President’s position, which we have supported on Maydan and still support, but as a help to him in the struggle against the anti-legal, anti-constitutional and stagnant practice, born by the Soviet system and Kuchmism, if the President cannot do it by himself for some reasons.

If the second letter also would not entail proper reaction, and the problem would not be solved, then we would not have another way out. We consider the probable turning to court as a deplorable, forced, but necessary for the protection of Right and spirit of the Orange revolution step. Yet, maybe it would be the only possible way to make the officials, who, consciously or subconsciously, discredit the new power, obey laws.

After the events of the Orange revolution people do not deserve disrespect of anybody, first of all, of the team, which has been lead to power by the people, as well as of the nameless officials from Oleksandr Zinchenko’s agency.

President Viktor Yushchenko does not have yet the reputation of a person neglecting laws. And we are waiting for the proofs of this opinion.

On 7 April a press conference of Volodymir Butenko, the head of the Kharkiv regional branch of the State department of penitentiaries, was held in the press-center of the informational agency «Status Quo». The topic of the conference was «New priorities of penitentiary system».

I believe that it will be interesting to our readers, what the head of penitentiary department told to the journalists.

He began with a «joke»: I wish to all present and their relatives, he said, never get to us as «clients». The journalists silently agreed with him.

During the most part of the conference Mr. Butenko told about introduction of the new head of the State Department of penitentiaries of Ukraine, which introduction took place on 31 March and was conducted by President Viktor Yushchenko. Since that time this important agency is headed, on the all-Ukrainian level, by Vasyl Vasylevich, who has worked before as the first deputy of the company «Naftogaz Ukrainy». By the way, he is a member of the party «Congress of Ukrainian nationalists». The Ukrainian President organized the introduction as a work meeting (which, according to Butenko’s words, was the first meeting on such a high level). Yushchenko stated that a person deprived of liberty was not deprived of the right to be a human being. Recently the President has become acquainted with the conditions of convicts’ upkeep in the Korostinets colony and reckons that these conditions are awful. He does not believe that it is possible to reform a person in such conditions, to direct a convict to the way of improvement. So, it is urgently necessary to realize, within the shortest terms, the cardinal measures for fulfillment of the following tasks:

1. To liquidate overpopulation in colonies.

The President has pointed out that now in Ukraine there are 413 incarcerated for every 100 thousand of population. At the same time, such number in the developed European countries is only 60-100, and even in Moldova and Armenia this proportion is 2-2.5 times lower. The situation, when one incarcerated has less than 2 square meters (not less than 4 m² in Europe), is inadmissible. Now new prison standards are worked out on the basis of European experience. Viktor Yushchenko pointed out that he did not want to build new prisons in Ukraine. In the opinion of the President, it is necessary to realize the strategy for reduction of the number of people staying behind the bars.

In this connection Volodymir Butenko remarked that his department in the Kharkiv region was preparing the corresponding propositions, which would be sent to the President up to 15 April.

2. Protection of health of prisoners.

By the words of the President, the situation is inadmissible, when a person, which has got behind the bars being healthy, is released sick and infirm.

Mr. Butenko told that in the Kharkiv region, as well as throughout Ukraine, the problem exists of the great number of prisoners with TB, AIDS and other infectious diseases. There is lack of needed medical drugs and qualified doctors. As a result, only this year 17 persons have died in the establishments of criminal-executive system, and 1.5 thousand of prisoners ill with active form of TB are registered.

«The Ministry of health protection must turn its face to the people, which serve their sentence. Hippocratic oath reads: to treat anybody!», emphasized Volodymir Butenko.

Mr. Butenko assured the journalists that his subordinates tried to make some steps for the improvement of this situation: new diagnostic equipment was installed in the colonies and the provision of medicaments also became better.

3. Improvement of nourishment of the incarcerated.

This task is closely connected with the second one. In the opinion of the President, it is necessary to take all necessary measures for the improvement of nourishment in penitentiaries.

By words of Volodymir Butenko, in 2002 only 2 hryvnas 13 kopecks per day were allotted for nourishment of one convict. Now the situation is not much better: today this sum is 2.97 hryvnas. «What can be bought for such scanty money?», asks Mr. Butenko, understanding that this question is rhetorical. Answering this question he tells that penitentiary establishments have already started to produce bread, which is 30-35% cheaper that in trading network. The 109^th colony is, in fact, the «granary» of the entire criminal-executive network in the Kharkiv region: cereals are cultivated on 600 hectares in this colony, which allows to provide convicts with bread. The colony also cultivates vegetables.

Besides, Butenko believes, liquidation of the existing ungrounded limitations concerning the contents of food parcels passed by prisoner’s relatives would also improve the situation to a certain extent.

4. Solution of the problem of job for incarcerated.

As Viktor Yushchenko said «Idleness makes time longer».

So, general Butenko reckons that it is necessary to solve on the region level, jointly with the Kharkiv regional state administration and all interested structures, the question on provision with state orders of the enterprises, where the condemned work.

5. Solution of the problems of personnel.

At the above-mentioned meeting with top officials of the State department of penitentiaries of Ukraine the President declared that worthy people had to work in this system, and these people had to obtain the worthy salary.

It is also necessary to be very attentive to personnel working in penitentiary establishments, to their moral, business and professional features. The state, for its part, will, since April, increase their salaries: the minimal salary of a worker of this sphere will be 409 hryvnas.

Having told about the meeting with the President, Butenko started to answer the questions of representatives of mass media. In particular, by the request of journalist of radio «Liberty» Viktoria Marenich, he presented the detailed statistical information. Now about 17 thousands of convicts stay in 13 establishments of the criminal-executive system. Among them:

-  condemned for premeditated murder – 1943 persons;

-  For infliction of serious bodily injuries – 918;

-  For rape – 373;

-  For robbery – 1271;

-  For burglary – 1054;

-  For economic crimes – 5421;

-  For hooliganism – 488;

-  For military crimes – 5 (by the way, 1 prisoner serves sentence for espionage in favor of germany).

Among the total number of the condemned 7024 persons serve their sentence for the first time.

The number of invalids of the 3^rd group in the establishments of the criminal-executive system in the Kharkiv region is 104, of the 1^st and 2^nd groups – 35.

There are 64 convicts (57 men and 7 women) condemned to life imprisonment.

Besides, more than 300 persons undergo the coercive treatment for alcoholism in the Khrolivskiy medical-labor preventorium (among them 80% have already stayed in penitentiary establishments). According to Butenko’s words, the decision about unreasonableness of keeping of alcoholics in the establishments of penitentiary system was taken as early as in Soviet times, but this practice is still applied. Human rights protectors believe that the institute of the coercive treatment for alcoholism, existing in Ukraine, does not meet the international norms of human rights and the functions of criminal-executive system.

I also dared to put a question to the general-lieutenant of the internal service. I asked, how the leisure of convicts was organized. Mr. Butenko depicted an optimistic cheerful situation: his personnel, he said, had refused from the «Soviet methods», they worked with the condemned not for reforming, but for realization of the «process of resocialization», grounded on individual work. By his words, a person, which stays in a colony, has 3-4 hours per day for leisure; during that time the prisoners have the right to watch TV, to indulge in sport and fancy-work, to go for consultation of psychologists or to visit church. If the convict continues his education, then his workday is even shorter. So, the picture is almost idyllic.

However, the present did not get any reasoned answer to one question. This question was put, with maximalism peculiar to young people, by Vladimir Noskov, a special correspondent of the radio «Era» in the Kharkiv region. He asked: why have you raised this problem only after the coming of new power? Whether you had not seen this problem before, and saw it only after Viktor Yushchenko outlined it?

The press conference has finished. We got certain information about the past. And it is interesting, whether some changes would take place, and whether these changes would be positive and would result in the improvement of situation with human rights in the establishments of criminal-executive system. The Kharkiv group for human rights protection will attentively monitor these processes.

OPEN LETTER

To Volodymir Moysik

Head of the Committee of the Supreme Council of Ukraine

In charge of legislative provision of law-enforcing activities

The newspaper «Golos Ukrainy», No. 46 of 15 March 2005 published your article «Criminal-executive system of Ukraine: to reform or to repair?» You brought up very important questions of future existence of this system in Ukraine. Unfortunately, all power branches and the society give not enough attention to the activities of this important institution and to its problems. So, the very fact of your publication is, in our opinion, extremely positive.

We want to dwell on some your statements and to express our opinion about them.

1.  Obligations of Ukraine to the Council of Europe.

In the publication you more than once recollect about the obligations of our country to the Council of Europe and insist that these obligations have been fulfilled. In particular, you write: «According to the obligations assumed by Ukraine at joining the Council of Europe in compliance with the Conclusion (Resolution) of its Parliamentary Assembly (No. 90 for 1995), it was established that until the end of 1998 the penitentiary system of Ukraine had to be taken away from under the authorities of the Ministry of Interior».

You also refer to the opinion of experts of the Council of Europe, which in 1996 studied our system and recommended to «create the penitentiary service as an autonomous social organization» in the framework of further development of penitentiary system.

You state that «for the fulfillment of recommendations of the experts of the Council of Europe on the creation of penitentiary service as an autonomous social organization… Department of penitentiaries was created. Thus, the main obligation to the Council of Europe on demilitarization of penitentiary system of Ukraine and taking its away from under the subordination of the force agency will be fulfilled by our country».

This statement corresponds to another your remark: «In my opinion, the demands of the Council of Europe come not to subordination of penitentiary system to the Ministry of Justice, but to the creation of penitentiary service as an autonomous social organization».

You also refer to the opinion of the participants of the «round table» held in the Supreme Council on 2 March 2004. «Almost all participants of the discussion accentuated the attention on the idea that the main purpose of the obligations to the Council of Europe concerning reforming of the penitentiary system, in particular, its demilitarization and taking away from under the subordination of the force agency, was fulfilled».

These statements are not, to put it mildly, accurate. And the document clearly reads: «responsibility for administration of penitentiary system… will be passed to the Ministry of Justice until the end of 1998». As you see, there is no mentioning about «autonomy» of the system. In contrast to recommendations of the experts, it is an obligation. So, if the fulfillment of recommendations of the experts, about which you recollect, is desired, but optional, the obligations must be fulfilled necessarily.

Of course, it is possible to assume that with time the Council of Europe agreed with the variant chosen by Ukraine: creation of an autonomous agency. However, it is not so. Maybe you do not know, but item 8 of PACE Resolution No. 1346 (2003) unambiguously reads: «The Assembly appeals to the power organs of Ukraine: … III. To complete the transfer of all penitentiary system under the subordination of the Ministry of Justice».

So, the position of the PACE concerning the fulfillment by our country of its obligations to the Council of Europe noticeably differs from your opinion quoted above, even if «almost all participants of the discussion of 2 March» think like you. This means that the obligation of Ukraine on the transfer of penitentiary service under subordination of the Ministry of Justice is still not fulfilled.

2.  «Liquidation» of penitentiary system.

You depict the following alternative for out penitentiary system: «either to go along the way of real reforming, being guided by international experience and scientifically grounded national conception, or to imitate, for the umpteenth time, the radical reform by urgent liquidation of the existing state structures».

You write about liquidation in other places of your article too, stating that «on 12 February the Cabinet of Ministers included the State department of penitentiaries to the list of organs, which would be liquidated, with passing of its functions to the Ministry of Justice». It seems that you are even indignant: «is it possible to liquidate, with one stroke of the pen, a stable state structure, which includes 180 establishments, where 200 thousand incarcerated are kept?»

Firstly, tell us, please, where one can see this «scientifically grounded national conception of reforming of penitentiary system»? Does it exist?

Secondly, one can draw a conclusion from your words that the Cabinet of Ministers, liquidating the penitentiary system, plans to close all penitentiary establishments, to release all criminals and to make jobless the personnel of penitentiaries. Maybe everything is not so threatening and tragic? Maybe the question is much more trivial and the mater concerns not «liquidation» of the system, but its subordination of the Ministry of Justice? And in reality NOTHING is liquidated except the seven-year uncontrolled activities of administration of the penitentiary system? Maybe this absence of control is the main value you protect in your publication?

3.  Observance of human rights.

Let us try to analyze your statements on the observance of human rights in penitentiary system. You write: «Heads of penitentiary system of our country insist that the seven-year functioning allowed to introduce new forms and methods of work with the incarcerated. These conclusions are also confirmed by the experts of the Council of Europe and the European committee against torture».

You also insist: «Effective cooperation of the criminal-executive system of Ukraine with the European states allows to reappraise the system of the right in the sphere of execution of punishment and observance of human rights, to realize implementation of the European norms and standards of the upkeep and treatment of prisoners».

You are sure that the penitentiary service has made a number of essential steps for further humanization of service of criminal sentence, consolidation of lawfulness, stabilization of the state in penitentiary establishments and guaranteeing of human rights and freedoms.

You do not doubt that «gradual reforming of the criminal-executive system has allowed to improve its work practically in all directions, but all these directions serve to one goal: guaranteeing of human rights and fundamental freedoms».

Wonderful words about human rights! Yet, it would be not bad to confirm this optimistic view with real facts. However, you do not adduce such facts. Besides, you, for some reasons, content yourself only with the opinions of administration of the system, but take no interest either in the opinion of scientists or the opinion of public organizations. And the level of conformity of your words with reality would be illustrated, best of all, with the following facts. New Criminal-Executive Code permits the prisoners one phone talk (15 minutes) per three months in the framework of guaranteeing of the right of the condemned for contacts with outer world and reservation of their social relations. Is this practical implementation of the European norms, mentioned by you? And there are scores of similar examples in the new Criminal-Executive Code.

The second fact. During 1998-2002 the European Committee against torture visited Ukraine four times. Maybe it happened because of conscientious work of our authorities from the Department for introduction of the «new forms and methods» of work with the incarcerated? The experts of the Committee against torture assessed the «essential steps for… stabilization of the state in penitentiary establishments and guaranteeing of human rights and freedoms», for instance in item 59 of the Report of the Committee after the visit of 2002:

«The upkeep conditions, during our visit to the penitentiaries, were threatening, like before. This is confirmed, in particular, with the observations made in the Simferopol investigatory isolation ward. In the places, where the progress is observed, it is insignificant and uncertain. The visit confirms that the problem of systematic overcrowdness, which had to be solved by the Ukrainian power long ago, still exists not only in investigatory isolation wards, but also in penitentiary establishments».

It is noteworthy that this year the committee will visit Ukraine for the fifth time. This is another expressive evidence of «guaranteeing of human rights and freedoms» in our penitentiary system.

I want to add that the real attitude of the Department as «an autonomous structure» to the problems of the observance of human rights is also confirmed by the fact, which is not known widely: in December 2003, according to the results of the round table conducted by administration of the Department and public organizations, some amendments were introduced into the joint Resolution. These amendments concerned the attraction of attention of workers of the system to the solution of the problems of human rights (see the bulletin «АСПЕКТ» [«Aspekt»], No. 1-2004). The final version of the Resolution was completed by the Department, and all amendments about human rights were deleted. As a result, they got the previous text, prepared by the Department itself, in which human rights were not mentioned. Well, it is quite strange «practical application» of declarations on the observance of human rights by the Department of penitentiaries as an autonomous organization.

The conclusion: today the observance of European norms on human rights in penitentiary establishments is rather promises and good intentions than the real state of affairs. And the autonomy of the Department is the factor that rather brakes introduction of the European norms than promotes this process.

4.  Public control of the system.

You state: «Today the intensive process of formation of civil society takes place, the civil society, which would be able to realize the public control over any state agency».

And later: «The provision «On observation commissions» has been adopted for execution of Article 25 of the Code, which envisages the principle of public control over the observance of the rights of prisoners serving criminal sentence».

The quoted statements are quite correct. You do not affirm that the public control exists in our country, since, the «ability to realize the control» and the adoption of the Provision is not the control yet. On the one side, you write about public control, and on the other time – you do not contend that such control exists.

In reality, such control is absent today. There are two reasons, which are elucidated in details in publications in our bulletin «Aspect» (No. 3, 2004 and No. 1, 2005). In short, the first reason: the observation commissions consist not of representatives of public organizations, as it is stipulated by the Provision, but of the officials. For example, in the Donetsk region we examined 11 commissions, and in 8 of them there was not a single representative of public organizations, and 2 more included one representative each. The Donetsk region observation commission consists of 15 persons, among them: 9 heads of departments of the regional state administration and 5 representatives of the commissions of the regional council. We proposed to include a representative of at least one public organization to the commission, but the regional state administration refused.

And another essential reason of absence of the public control. The Provision on observation commissions contains the list of tasks of such commissions, but there is NOT A SINGLE item stipulating the control over the rights of the condemned. It is paradoxically, but there are no norms in Ukraine now, which directly stipulate the control over the observance of human rights. By the way, the draft of this Provision on observation commissions was prepared by the Department. So, seven years is quite enough to understand that the «autonomy of the Department» and public control of its establishments are incompatible things.

 There is another interesting statement. Speaking about the procedure of passing the Department to the Ministry of Justice, you write: «It is unpleasant that the intentions of the committee (headed by you) to discuss this question at the sitting of a round table, with attraction of the wide circle of people’s deputies of Ukraine, heads of corresponding ministries and agencies, scientists and representatives of international organizations, was ignored».

I reckon that the fact that you, for some reasons, do not mention Ukrainian public organizations in this list, is not less strange and unpleasant. Do you really think that public organizations do not deserve the participation in such discussion? In such a manner you confirm that, in fact, public organizations in Ukraine are not regarded as a subject concerned with the solution of problems of the system. You invited none of 20 more or less competent public organizations to the conference of 2 March.

In this context I want to quote the recommendations of the experts of the Council of Europe, respected by you, who wrote in item 5.19 of their Report.

«We recommend:

-  to create, as soon as the resources will allow, the inspection organ, which would be coordinated on the central level, would be independent and would have the regional groups including the experienced workers of penitentiary system, representatives of other public organizations, including non-governmental ones;

-  To cancel, after the creation of independent inspection organ, the inspection functions of prosecutor’s office;

-  To realize the total inspection of every penitentiary at least one time per year;

-  To present written report on every inspection to the corresponding minister;

-  To publish reports on every inspection together with minister’s response, except the parts that contain confidential information;

-  Head of the inspection organ must, one time per two years, present to the parliament the written report on the conducted work and the disclosed facts (see Europen Prason Rules, rule 4 and item 4 of the explanatory report).

Today, seven years after the creation of the Department, no inspection organ has been created, moreover, the former administration of the Department is not interested at all in real creation of such organ. The prosecutor’s office remains almost the only organ, which regularly inspects penitentiaries, but it is impossible to obtain the information about the results of these inspections. For example, the Donetsk prosecutor’s office always refuses to render us such information.

5.  Legislative achievements of the Department.

Speaking about the achievements of the Department, you mention that «the new Criminal-Executive Code was adopted, as well as the Law «On social adaptation of the persons, who served sentence in the form of restriction or deprivation of liberty for certain term».»

Indeed, the CEC has been adopted, but now this Code is already obsolete and demands many changes and amendments. As to the Law, it, alas, does not function. I would be extremely grateful, if you would adduce the information, how many people, who were released, for example, in the Donetsk region during 2004, got flats, as it is stipulated by the Law. Or the information about the number of persons, who turned to the observation commission and got the aid according to this Law. Unfortunately, today this Law is an empty declaration.

You mention the creation of the draft of the Law «On state criminal-executive service of Ukraine» as one of the achievements of the Department. Do you really regard as achievement the fact that in seven years this law draft was adopted only in the first reading? And during all this period the workers of the Department know nothing about their own status and about the support they can get from the state? At the same time, departmental hospitals of the Ministry of Interior refuse to render free of charge services to the workers of the system, since they are «outsiders», and they almost do not have «their own» hospitals. So, the workers of penitentiaries must pay for medical treatment in contrast to, for instance, militiamen. The seven-year uncertainty of the status of a worker of penitentiary system is also an «achievement» of the Department as an autonomous structure.

6.  Number of incarcerated.

You affirm that the «annual initiation by the Department of adoption of the laws on amnesties, as well as realization of the norms of Criminal Code on application of new forms of punishment, allowed to decrease noticeably the number of incarcerated in penitentiaries».

In actual fact, the number of incarcerated was less before the creation of the Department. For example, in 1994 this number was 138970 persons, in 1996 – 172163. AFTER the creation of the Department the number of incarcerated quickly increased and on 1 January 1999 it was 206191 persons, one year later – 218083, and on 1 January 2001 – 222254. As to the last years, the decrease of the number of incarcerated during three years from 192293 (on 1 January 2002) to 188465 (1 January 2005), that is for 3828 persons or 2%, may not be regarded as «noticeable». At the same time the number of prisoners in 2005 exceeds the level of 1996 for 10%. CONCLUSION: the autonomy of the system has not become a factor that affects the number of incarcerated.

7.  Something about recommendations of the experts of the Council of Europe.

There is a very interesting phrase in your article: «Department, by its state-legal meaning, is a law-enforcing organ, which has the right to conduct the ODA».

In other cases you regarded as very competent the opinion of the Council of Europe experts. Yet, in the Report, prepared by them and quoted by you, there is such remark of the experts (item 5.13 of the Report): «The Ukrainian penitentiary service has always had close operative relations with army and militia, so it is frequently (but not correctly) mentioned as one of law-enforcing organs». It is noteworthy that the independent status of the Department conserved such «incorrect» attitude to the system. Moreover, passing to the Ministry of Justice is directed, in particular, at the correction of this «mistake». However, you reckon, for some reasons, that the correction of this «mistake» is inexpedient. Why?

 

RESUME

First of all, it should be noted that the stated comments are not aimed at protection of one point of view. Today the problem of passing of the Department of penitentiaries under the subordination of the Ministry of Justice is very actual and urgent, it demands open, public and professional discussion, in which not specially selected participants with the beforehand known position should take part, but the wide circle of professionals. And the participants of this discussion must use real, but not falsified arguments, authentic and complete data, but not the data confirming only one point of view.

In this letter we made the attempt to prove that the arguments, adduced by you in the considered article, are, unfortunately, beneath all criticism. The correctness and completeness of the selection of experts, who took part in the round table on 2 March, is rather doubtful. If you believe that there exist arguments confirming that the department must remain the independent structure, then it should be reasonable to expound these arguments. And if there are arguments for passing the Department under the subordination of the Ministry of Justice, these arguments should be considered impartially. Besides, one should not forget that Ukraine has chosen the European way of development.

Sincerely yours,

Oleksandr BUKALOV,

Head of the association of penitentiaries of Ukraine,

Head of the council of public human rights protecting organization «Donetsk Memorial»

For the first time the community prepared a systematic complex report consisting of 21 chapters concerning the violations of human rights in Ukraine in 2004. The report is not just a statement of facts; there are recommendations to the government at the end of every chapter on improvement of the situation with human rights and freedoms.

It is not a secret that one cannot be accepted to Europe (it concerns the European Union, first of all), if the situation with human rights in the country is bad. Evaluating a country, the European Union structures pay attention not so much to statements of a country, which usually praises itself, as to the independent reports or information on situation with human rights prepared by public organizations. The considered report is a bright example of community’s work of this kind, and numerous recommendations to the government show that the situation with human rights in Ukraine is far from ideal.

The report was presented and discussed during the second forum of human rights protecting organizations of Ukraine «Monitoring of human rights and fundamental freedoms in Ukraine», which was held in Kyiv on 11-12 April. More than 150 representatives of human rights protecting organizations from all regions of Ukraine participated in the forum, as well as international human rights protecting organizations (Human Rights Watch, Amnesty International, International Helsinki Federation for Human Rights), Helsinki committees of Russia, Belarus and Moldova, international advisors and representatives of donor organizations, diplomatic corps, partner structures from the countries of Central and Eastern Europe, foreign public activists, guests and journalists.

The forum was organized in Ukraine for the second time, last year it was dedicated to human rights at elections and remained in public memory first of all because of the incident of flinging mayonnaise on George Soros, who was a guest of the forum. In spite of such beginning, the forum of 2004 was useful and laid foundation for wide cooperation of human rights protecting organizations.

One of the main purposes of the forum of this year was to create the basis for the report on the observance of human rights and fundamental freedoms in our country in 2005.