PRAVA LUDYNY June, 1997
HUMAN RIGHTS ARE ABUSED
The President violates Constitution
On April 25 the President of Ukraine Leonid Kuchma sent a memo
to the regional administrations of Kiev and Sebastopol, where he demanded to
strengthen the labor discipline. To this end, the President proposes to prohibit
meetings, manifestations, demonstrations, etc. during the workday. However,
Article 39 of the Ukrainian Constitution states that any limitation of the right
for meetings, demonstrations, manifestations, etc. can be ruled only by court
according to the law and only in the interests of the national security and
public order, with the aim of preventing clashes and crimes or protecting the
population health or defending rights and freedoms of other people. Thus, the
Constitution does not stipulate the measures indicated in the President's
message. As to strengthening the labor discipline, it should be said that most
protestants at present are jobless. So if the President's demand concerns only
employed people, then what could be the procedure of separating them from the
crowd of other protestants?
R. R.
New army, old problems
R. Romanov, Sebastopol
In March 1997 the newspaper 'Slava Sevastopolia' published the
article 'Help me, mother! ' which informed the public that several Ukrainian
marines were taken to the 1-st city hospital of Sebastopol with the diagnosis of
distrophia. This article moved many inhabitants of the city. People brought to
the hospital food and medication for the starving marines. Bosses of the Navy
and city had to react. The military unit where the marines had served was
visited by the city mayor Viktor Semenov, the commander of the Ukrainian Navy
rear-admiral Mikhail Ezhel, and a representative commission from the Ministry of
Defence.
After this inspection the separate marine battalion was ordered
to transfer from their barracks in the settlement of Tylovoye to Sebastopol, to
the former higher school of navy engineering. According to the data of the
medical service of the Ukrainian Navy, the barracks in Tylovoye are not suitable
for billeting there a military unit. Because of the low quality of drinking
water the level of infectious diseases in the marine battalion is 3.3 times
greater than the average level in the Navy, whereas of the virus hepatitis it is
5.3 times greater! Among the commissioned officers the corresponding figures are
2.3 and 4.5. Until recently all insistant demands of military doctors to change
the battalion dislocation have been left without reaction on the side of the
commandment of the Ukrainian Navy.
Certainly the change of dislocation does not solve the main
problem - inhumane conditions of the service in the marines. 22 servicemen of
the battalion are underweight. Only during six weeks of 1997 thirteen traumas of
the servicemen of this battalion were registered, five of them are broken lower
jaws. The majority of these cases are caused by the 'dedovshchina'. So, on March
19, 1997 marine Yu. Yarovoy was brought to the 1-st city hospital of Sebastopol
with the diagnosis 'concussion of the cerebral brain'. In his explanations he
told that he was kept in the guard house in the settlement of Tylovoye. He was
ordered to clean the path from snow, when his warden hit him on the back of the
head. Physical duress in the battalion is encouraged and applied by officers. On
February 14, 1997 captain Efimov hit seaman Piatichev and fractured his lower
jaw. Young servicemen complain that they often become victims of sexual
harassment.
The publication 'Help me, mother! ' was regarded by the Navy
commandment as a provocation aimed at discrediting Ukrainian Navy. Marines'
parents that came from different regions of Ukraine would hardly share such
estimation. They bred healthy boys and sent them to serve the state, which in a
few months made them invalids. The parents of one of the seamen who was put to
the hospital managed to come to Sebastopol from Ternopol region only because
they were helped by their neighbors: themselves they did not get their wages for
about one year.
Trinkets have been changed on the uniform, but the Ukrainian
army still remains a detestable relict of the Soviet times.
The right for life is endangered
I. Sukhorukova, Kharkiv
With a great pity we learn new shocks that undermine
psychiatric aid in Ukraine. The stupid and cruel orders Nos.226(224), on which
we permanently write, have not been cancelled yet. These orders deprived of the
necessary medication a great number of the diseased suffering diverse illnesses;
those who have psychic disturbances have suffered most of all. The next point of
the agenda is the destruction of the system of psychic dispensaries, efficient
structures that patronize psychic cases supporting them for many years. One
wants to ask our Minister of Health and his hatchet men, whether they regard it
as their duty to destroy a smoothly working system of psychic aid, without
offering nothing instead? Our Ministry of Health demonstrates utmost
incompetence in problems gravely important for a considerable proportion of the
population. The proper Parliamentary Commissions passively observe how patients
are deprived of necessary medication, how the administrators want to destroy
efficient psychiatric dispensaries, how they reduce the number of places in
mental houses, how they keep the patients on the starving diet.
We believe that the Minister of Health must be sacked. The
Supreme Soviet must adopt the law on psychic health, and the state must find
necessary means to feed and treat psychiatric patients. What happens in our
medicine and, in particular, in psychiatry is a brazen abuse of the right for
life, to say nothing that it brutally violates Article 49 of the Constitution of
Ukraine.
HUMAN RIGHTS ARE DISCUSSED AND PROTECTED
In the previous issue of the bulletin we published abbreviated
comments to the third periodical report of the Ukrainian government on tortures,
which was prepared by Sebastopol human rights protecting group. In this issue we
publish (abbreviated) comments of Zaporozhye 'Union for protection human rights'
and Donetsk Memorial. The first is written by our colleagues from
Zaporozhye.
Comments to the third periodical report of the Ukrainian
government to the UNO Committee against tortures
Introduction
'Union for protection human rights' is especially concerned by
the fact that since the times of the former USSR and up to now torture and other
cruel, inhumane or degrading treatment or punishment have been applied in
Ukraine. Officers of law enforcing agencies inflict on citizens physical and
moral tortures, in particular, based on discrimination. Victims of such
treatment turned to our organization; besides, there were numerous reports in
the human rights protecting press and in mass media.
Imperfections of the national legislation that facilitate
application of torture
Article 28 of the new Constitution of Ukraine states that
'nobody can be exposed to torture and other cruel, inhumane or degrading
treatment or punishment. No one, without his voluntary agreement, shall undergo
medical, scientific or other experiments'.
In order to fight against torture the notion 'torture' must be
defined. The Ukrainian legislation does not contain such definition, but it is
contained in the UNO Convention against torture. Article 1 of this Convention
defines torture as 'any action which inflicts on purpose acute pain or
suffering, physical or moral, to a person in order to obtain from this person or
from other person information or confession or to punish this person or some
other persons for what he or she had committed and also to intimidate or force
this person or some other person, or for any other reason based on
discrimination of any type, or when this pain or suffering is inflicted by a
state official or anyone acting in the official capacity, or instigated by them,
or supported by their knowledge and silent agreement'.
Law enforcing agencies and courts in Ukraine have no tradition
to obey the constitutional principle permitting the direct application of norms
of the international law when the national law is insufficient. This is probably
the reason why the court persecutions for applying torture are so
infrequent.
Article 107 of the Criminal Code of Ukraine deals with the
'deliberate beating and other violent actions inflicting physical pain' and 'the
same actions having a character of torture'. Article 175 treats 'the compulsion
to confess during an interrogation by way of illegal actions commited by the
criminal investigator' and 'the same action connected with application of
violence'. This definition is insufficient because in real life various state
officials inflict moral suffering based on discrimination on citizens, but in
the Ukrainian legislation it is not a crime.
It is obvious that the term 'torture' must be defined and
introduced into the Criminal and Criminal-Procedural Codes of Ukraine.
Here are some examples which must be covered by the extended
notion of torture and degrading treatment:
- in preliminary detention blocks the conditions are
unbearable: lice, itch, overcrowded cells, inadequate temperature, lack of
oxygen, stench; these conditions deprive prisoners of sleep, damage their mental
and physical health;
- not a single of the faked mental cases repressed in 60-80s
cannot, up to the present, get the compensation for the damage to their health,
since very often the same people, who repressed them, are still in power;
- many people have not been moved yet from the high radiation
zones after the Chernobyl catastrophe.
State officials do not know the UNO Convention against
torture
Most officers of law enforcing bodies and courts do not know
about the existence of the UNO Convention against torture, and only few have
very fuzzy impression of the Convention. Purposeful measures (such as
publications in mass media) from the state and corresponding agencies are needed
to correct this situation.
Measures to be taken in the national legislation for protecting
citizens from torture and cruel treatment
According to the international legal norms any person who
underwent torture or cruel treatment has the right to hand a complaint to the
proper competent bodies which must carry out a swift and objective investigation
to check whether the torture was used. There is no similar clause in the
Ukrainian legislation: the term 'torture' has recently appeared in Article 28 of
the Constitution, but it is never mentioned either in the Criminal Code or in
the Criminal-Procedural Code.
Human rights protecting organizations often receive complaints
on tortures and cruel treatment, but such cases are never considered in courts.
This happens because complaints on tortures and cruel treatment are usually
found invalid in procurator's offices, and even if they are considered, they are
found to be ungrounded, so any criminal action is not started - a resolution
against which it is impossible to appeal.
Victims of torture are not recompensed
International legal standards state that a victim of torture
has the right for a just and adequate compensation, including the means for the
complete rehabilitation. In Ukraine the victims of torture are not recompensed,
because the fact of torture is very seldom proved in court.
Torture is very seldom mentioned in trials
At trials the term 'torture' is usually replaced by such
euphemisms as 'violent actions', 'beating' and so on, which are frequently used
terms in the Criminal Code since the times of the USSR. We need legislation to
be perfected and to correspond to the new Constitution and international legal
standards.
Recommendations
1. Introduce new legal acts into the legislation of Ukraine for
fighting torture and cruel treatment according to the Constitution of Ukraine
and international legal standards.
2. Conduct swift and objective investigation of all complaints
concerning all kinds of torture and cruel treatment.
3. Guarantee swift, objective and qualified medical examination
of people who suffered from torture.
4. Prosecute those who are guilty of applying torture or cruel
treatment.
5. Establish an efficient system of independent inspection when
criminal cases on torture and cruel treatment are stopped.
6. Educate city officers and population in the problem of
fighting with torture and cruel treatment by publishing special scientific and
popular literature, by enlightening people through mass media.
Here is another independent report on the fulfillment by
Ukraine the Convention against torture. This report is prepared by 'Memorial'
from Donetsk jointly with the editorial board of the newspaper 'Tiurma i volia'
(in what follows TIV).
Tortures are applied
Prison conditions are equivalent to cruel treatment
There are 14 penitentiary establishments and three detention
blocks in Donetsk region. By the existing norms they are calculated for 23, 698
inmates. However, by October 1, 1995 their number was 26, 450, a year later -
30, 461. Especially hard conditions are observed in prison -28, where 3, 320 convicts are packed, while
the calculated capacity is 1, 492. The situation is difficult also in TB
hospital -3 with 1, 660 inmates, while
the capacity is 771. During 9 months of 1995 386 convicts were found to have TB,
a year later the corresponding number for the same period reached 983. The
number of deaths during these periods was 190 and 413, respectively.
Many convicts catch grave diseases in the prisons. Only in the
last year in -97 35 prisoners were found
to be AIDS-infected, and 14 caught this disease in the prison.
One of the reasons of falling ill is the overcrowding of
prisons. According to the norm, one TB-carrier must have 5 sq.m, but in fact
they have 1.6-1.8 sq.m. In -87 23
patients with the open form of TB were kept in the cell with healthy convicts
for more than six weeks, since January 1996.
Nutrition in penitentiary establishments is not adequate. In
June-August 1996 only in -87 was not
obtained, though planned according to the norm: 11, 938 kg of meat, 5, 128 kg of
oil, 6, 102 kg of milk. Similar data are available about other prisons.
Physicians working in -28 also inform that the situation is extreme.
TB patients went on strike, protesting against the conditions, but nobody
reacted. In Mariupol colony for minors youngsters are beaten for slight
violations of the regime, for example for sitting on beds and even for gait. In
September 1996 there was a rebellion with taking hostages in this colony.
Insufficient investigation of complaints of tortures
In February 1997 TIV directed 22 requests to militia and
procurator's office of Donetsk and adjacent regions. The editorial board
requested how many complaints on illegal methods of investigation was received
in 1994-96 and how many of them proved to be truthful.
Lugansk directorate of MIA answered that not a single such
complaint was received during three years. Lugansk procurator's office
considered 16 complaints in 1994, 52 in 1995 and 71 in 1996. Only one complaint
was satisfied.
Donetsk directorate of MIA also did not receive a single
complaint. Donetsk procurator's office does not count complaints, but not a
single of them during three years was found valid.
Enakievo procurator's office considered two complaints in 1994
and one of them was found valid. In 1995 eight complaints were received, but
they were not confirmed. Other organizations did not answer.
Nonetheless, Donetsk 'Memorial' and the editorial board of TIV
know a number of concrete cases when torture was applied.
Yu. Fedorov's case (Stakhanov, Lugansk region).
In October 1992 he was detained being suspected in committing a
murder, and during 6 days he was beaten by militia. He told about the beating to
detective Shargorovskaya, but neither she nor procurator Mikhaylusov, who gave
the warrant for arrest, 'noticed' the beating. The court disregarded the
complaint of Yu. Fedorov on beating. In February 1997 his case was reconsidered
and the verdict was reduced from 12 to 6 years of imprisonment. The court
remarked that the criminal investigation has been inadequate, but again the
information on beating was ignored (TIV, December 1996, February 1997).
A. Fokin's case (Zhdanovka, Donetsk region).
A. Fokin was beaten by militiamen in March 1995. The criminal
case was terminated since no criminal act was found (TIV, October 1996).
N. Goncharov's case (Komsomolsk, Donetsk region).
N. Goncharov was beaten but drunken militiamen in October 1996.
The officer on duty in the precinct, a Titov, refused to take the complaint
(TIV, October 1996).
N. Bugulets's case (Starobeshevo, Donetsk region).
N. Bugulets was detained being suspected of beating citizen V.,
who later died in the precinct. Being released, N. Bogulets went to the hospital
and procured a certificate that he had been beaten. Then he was detained again
and is still under arrest. Starobeshevo procurator's office and regional
procurator's office did not find any guilt of militia in beating N. Bugulets and
refused to start a criminal case. The trial happened in February 1997, the court
found invalid the resolution of the procurator's office (TIV, September 1996,
March 1997).
I. Tkachenko's case (Kiev).
Condemned to death. The evidence that violence was applied
during the criminal investigation was disregarded by the court. The militia had
threatened that they would detain his wife, as they acted with respect to his
friend's wife: the pregnant wife was detained by militia for three days, she was
threatened and intimidated (TIV, June 1996).
A. Chebyshev's case (Donetsk).
He was beaten in a militia precinct and forced to sign the
affidavit that injuries of feet had been gotten by him at his job. A. Chebyshev
begged his wife to stop her efforts to achieve justice, because she could loose
him for ever (TIV, June 1996).
V. Kulinich's case (Donetsk).
V. Kulinich and his wife were detained on 28 February 1996.
Both were beaten in the militia precinct, he got a medical certificate. He died
on March 3 in the detainment. A criminal case has been started, but it is not
investigated. The detective explains it by having too much work (TIV, January
1997).
V. Kovalchuk's case (Kiev).
He has been condemned for taking part in the activity of the
religious sect 'White Brotherhood'. He is ill with congenital heart disease,
medical aid during heart attacks is not granted (TIV, January 1997).
V. Kondratenko's case (Torez, Donetsk region).
He is an invalid of Afghan war. His mother witnesses that
during interrogations in the militia precinct they put on him a gas mask with
ammonia spirit, forcing him to sign affidavits needed by detectives (from a
letter by Kondratenko's mother).
V. Kovalev's case (-52).
On 5 September 1995 he burned himself, protesting against human
rights abuses in penitentiary establishments. He had written a letter to the
administration of the prison, where he warned about his intention to burn
himself; nonetheless, the prison administration declared that it had been an
accident (TIV, January 1997, August 1997).
Irina Khromysheva's case (Melitopol, Zaporozhye region).
Irina was detained as suspected in a murder. She was pregnant.
During interrogations cops burned her hands with cigarette stubs, which was
certified by medical expertise. After the interrogation she had a miscarriage.
Her lawyer was not admitted to her during ten days. The court disregarded all
these facts (from the letter from I. Khromysheva).
A. Shapovalov's case (Artemovsk).
In May 1996 he had a fight with a militiaman. He was treated in
a hospital, his wounds were sutured. Later in the day he was detained by militia
and beaten on the fresh wounds. Later he demanded the permission to be examined
by medical expertise, but the criminal investigator refused the permission (TIV,
February 1997).
On compensation to victims of torture
The compensation is ruled by Article 14 of the Convention
against torture. This article is not operable, since practically there are no
cases when torture is confirmed by court.
Using confessions obtained under duress
This is forbidden by Article 15 of the Convention against
torture. The confessions were presented at the trial, though the accused
complained that their confessions were squeezed by torture. It happened in the
above-listed cases of Fedorov, Bugulets, Tkachenko, Kondratenko and Khromysheva.
In all these cases but one the court disregarded their complaints (except the
case of Bugulets where the court requested the investigation to explain the
cause of body injuries of the accused).
Death penalty
149 people were executed in Ukraine in 1995, 167 - in 1996.
Although Ukraine promised to decree the moratorium on executions, death verdicts
are given and executed. In February 1997 in prison No.1 of Donetsk 27 people
were awaiting their death.
In higher instances death verdicts are checked
bureaucratically, the Commission on mercy under the President of Ukraine mercies
1-2 people per year. The conditions under which the condemned to death are kept,
are worse even than the existing norms, letters where prisoners describe the
conditions are intercepted by the prison administration, but one of them,
Aleksandr Dotsenko (executed in April 1996), managed to smuggle such a
letter.
Conclusions
The Ukrainian law contains clauses prohibiting torture and
sanctioning punishments of those who applied tortures. In the actual fact,
torture, especially beating suspects by militia, is a routine. A small number of
complaints is the consequence of refusals to accept the complaints by
procurator's office and militia. If such complaints are accepted, then, even if
a medical certificate on body injuries is available, the criminal case is not
started. Checking of complaints is reduced to questioning those militiamen,
about whose actions the complaints are. After this the case is terminated by
Article 6, Clause 1 or 2 of the Criminal-Procedural Code, i.e. because no crime
has been committed.
Complaints of the accused during trials on the torture are
disregarded by courts. Militia, procurator's office and court help each other
like birds of the same feather.
Citizens know that all the attempts to prove torture result in
new torture without any troubles for torturers. When facts of cruel treatment
are described in the press, it is ignored by the procurator's office. If the
editorial board sends an official request, then usually no answer follows or
there follows a formal answer that the facts have not been confirmed. If the
editorial board insists, then a visit of a tax inspector follows or a threat to
prosecute the newsmen for libel.
Citizens often do not know their rights, necessary information
in mass media is absent.
Human rights protectors use their own methods to protect human
rights including the right for life, miners use their own methods. Several times
our bulletin told the readers how the case of Mikhail Krylov, a co-chairman of
the Donetsk strike committee, was considered in Zaporozhye regional court. Here
we present the interview with M. Krylov conducted by Evhen Zakharov
(Kharkiv).
Zakharov: What are you going to do if you are found guilty?
Krylov: Now we are preparing documents to be sent to the
Constitutional Court. To analyze my case one must not be a lawyer because
practically all rights were violated in my trial. Frankly speaking, there is
little hope, but one must try.
Z.: If the Constitutional Court rejects your appeal, you,
perhaps, will be able to handle your appeal to the Strasbourg Court. Do you
intend to?
K.: If I can, I will.
Z.: When the convention is ratified by Ukraine you will have
this opportunity.
K.: It would be great! But when will it be? I think that
Ukraine will not hurry.
Z.: I hope that Ukraine will have ratified the European
Convention. It looks like Ukraine will be made to. And now the question: what
are your motives that forced you to continue the trial?
K.: And why shall I plead guilty? To ask for amnesty means to
confess that I am guilty, but I am not.
Z.: And what resolution of the court will satisfy you?
K.: They must rule my accusation as false and it would be
desirable if the court gives its assessment of the events involved.
Z.: Tell me please how large are pay arrears for miners at the
present?
K.: They grew up by 20-25% compared to the last year. In
principle, the last year situation may repeat. There is a difference: by the end
of May last year four mines did not work, now, as far as I know, only one is on
strike. I believe that if the government does not diminish the pay arrears, then
the last July events may repeat in a more stringent variant.
Z.: Is your organization functioning now?
K.: Yes.
Z.: Is it still coordinating the efforts of miners as
before?
K.: Unfortunately, much less. Valeriy Miller, chairman of the
miner trade union association, is also prosecuted at court, like myself. We have
decided not to stir up trouble. Miners must understand themselves that they are
in the dead-end. They need some time to understand.
Z.: With which structures of our state do you connect your
hopes for the better, if any?
K.: Neither court nor law. I am sure that if we want to live
well, we must struggle for such life ourselves.
Z.: I am not a specialist in mining. I may be mistaken but it
seems to me that the problems of your industry cannot be solved without great
investments. Is it right?
K.: No, it is not. This is a universal mistake which appeared
because our top officials permanently lie to the people; they say that our coal
is much more expensive than the imported one. The real data are such: in Spain,
for example, the net cost of a metric tonne is $198, in Germany - $174 and here
- $52.
Z.: And what about Polish coal?
K.: It is sold at $75-78 but Polish coal is better for
extinguishing fire than for supporting it.
The reason of the lies is clear: Ukraine borrows money from
various financial international organizations, and they set the condition: if
Ukraine closes her mines, they will give money, if not, then not. We read an
official document - recommendations of the international currency fund. This
document openly states that one must in any way pay less to miners to force them
to leave mines, thus avoiding payments for social programs accompanying the
official closure of mines. The sense is clear: when we loose our own coal, we
shall have to buy coal abroad at much higher price. Our top officials are either
stupid or take bribes. I do not see any other explanation.
Z.: If I understood you rightly, you assess the state program
of closing nonrentable mines as unreasonable?
K.: I have nothing to assess because there is no such state
program. There are some declarations around this non-existing program. As to the
concept of rentable mines - they exist now only in two countries of the world:
the USA and Australia, and even there they are furtively subsided. When
specialists speak about rentable mines, it is obvious stupidity.
Z.: Then, if I understood you correctly, the state policy in
coal mining is incorrect.
K.: No, I would not say it, this policy does not exist.
Z.: And what must be done, in your opinion?
K.: If we want to live and if we want our children to live, we
must somehow fight for our survival.
Z.: I see. And what concrete steps do you plan? Has your trade
union or other trade unions some real program of solving problems of coal
mining?
K.: Yes, and we made them public during the July events. We
proposed to Pavlo Lazarenko to have an open discussion on the TV screen: you are
the first person in the state, we shall explain to you, how to solve our
problems and you will explain why it is bad. If people think that you are right,
we shall scatter and not be in your way. But if people understand that we are
right, then you must go. Then the arrests started.
Z.: I tried to understand your problems and read a lot of quite
diverse materials, and I came to the conclusion that miners and their
organizations have different opinions.
K.: They are mostly scabs who have different opinions.
Z.: I remember that you intended to prosecute Prime-Minister
Lazarenko who declared that you had obtained dollars from a foreign country.
K.: Yes, we prepared documents, but not a single court wanted
to start the case. We understood that we were loosing time. Though the documents
are prepared and we keep them ready.
Z.: May I publish all that you have said?
K.: Sure.
Z.: I wish you luck.
Mikhail Krylov was condemned for two years and compulsorily
amnestied. But he is going to prove his innocence in next instance.
Raid for youngsters (continuation)
In the last issue we wrote that Dzerzhinskiy precinct of
militia in Kharkiv carried out a special raid to capture innocent youngsters,
who later were brutally treated. Kharkiv Group for human rights protection
complained to the City Procurator who sent a message to Kharkiv Directorate of
MIA. We have received the answer from the City Directorate. We quote it
verbatim.
Kharkiv City Directorate of MIA
Kharkiv region
Personnel department
Maryanovskiy G. A. Chairman of Kharkiv Group for human rights
protection
27 May 1997
I inform you that your letter was considered by the Kharkiv
City Directorate of Internal Affairs.
In the course of the investigation a fact was found of the
violation of the operable laws on the side of a number of officers of
Dzerzhinskiy precinct; they were punished in the disciplinary line.
The film with negatives of youngsters' photos was
destroyed.
Commander of Kharkiv Directorate of MIA A. A. Kharienko
As the reader can see, the people who deserve punishment are,
though very infrequently and very mildly, punished. That is a pity that no one
guilty of this shameful action was sacked from militia and no criminal case was
started, but all the same it is pleasant to see that militia can bring to order
their members (although with our assistance).
The ombudsman must represent the public
Renat Mukhamedzhanov, co-chairman of the center of human
rights, Dnepropetrovsk
Without justice and law the state is
nothing but a band of robbers
Saint Augustine
At last the Ukrainian Parliament adopted the draft of the law
on the ombudsman in the first reading.
Unfortunately, this does not mean that the rights of millions
of people will be restored. No, the rights were brutally violated and are
brutally violated by the state, its bodies, its former-regime and freshly
corrupted bureaucrats.
Nonetheless, this is a remarkable event on the way to a
civilized (not Lenin-like and not Albania-like) solution of the old opposition
of the people to the violence on the side of the state, which people created.
Mad bloodsheds, where brother kills brother, which politicians euphemistically
call 'social unrest', is caused, first of all, by unjustice, or rather by too
much exploitation of the subordinates by those who are in power, exploitation
which exceeds reasonable limits. Perhaps one must say here on the violation of
the balance of mutual exploitation of subordinates and authorities, but this is
another topic.
In the majority of countries the society came to the conclusion
that a man shall be defended from authorities. And they created a special
position - that of the ombudsman (in different countries he has different
names). Sometimes it is somebody, sometimes it is a body.
The UNO brochure describes this position as follows:
'Ombudsman, as a rule, is appointed by the Parliament. The main function of the
ombudsman is to protect individuals who considered themselves victims of unjust
actions on the side of the state administration.' And further: 'In most cases
the main function of the ombudsman is to guarantee justice and legality of the
state administration. The main direction of the ombudsman's activity is to
consider individual complaints.'
It is noteworthy that the position of the ombudsman is
introduced in the countries where they have police and procurator's office and
court to protect man and his rights, and these agencies do protect man in
contrast to ours, which deteriorated to such a degree that often their activity
is opposite. If a court tries an innocent man and without objective
investigation puts him behind the bars, then this is an anti-court. If
authorities illegally take away an enterprise from those who work there, and if
an arbitral court defends the robber, then it is an anti-court again!
Several MPs came to the conclusion that the establishment of
the position of the ombudsman would be one of the realistic ways to fight with
offending actions of the state against individual. MPs proposed three drafts of
the law on the ombudsman. The Committee on human rights, national minorities and
international relations perfected this draft and suggested it to the Parliament.
It seems that the final draft is written not without borrowing the most valuable
experience of the ombudsman's activity in Poland where the conditions are more
or less similar to ours.
The adoption of the draft in the first reading is certainly a
success, since the tasks set before the ombudsman and means of their solution
correspond, in principle, to the needs and wishes of the victims of arbitrary
actions of the authorities.
It is clearly fixed in the draft that rights and freedoms of
rank-and-file citizens must be protected from the state power bodies, from local
self-administration bodies, enterprises, establishments and organizations,
independently of the forms of property. The ombudsman's competence covers all
the interrelations concerning rights, freedoms and legal interests of citizens
and authorities (but not between citizens). Every citizen of Ukraine or some
other state or a non-citizen may address the ombudsman. Besides, the ombudsman
has the right to start investigations on his own initiative, which is the only
way to protect numerous groups of population or their rights, since they cannot
be expressed in an individual complaint (for example these are pensions that
became unpredicted handouts, our medications that somehow get from hospitals to
the black market and the like).
The ombudsman has the right to suspend illegal acts, whereas
his acts must be obeyed.
Certainly, with our nondemocratic upbringing and practically
antidemocratic regime the results of the ombudsman's activity will mainly depend
on the merits of the man who will take this position. It is good that in the
draft no requests are formulated that the candidate must have juridical
education, it is good that there is a clause that the candidate 'must have high
moral qualities and experience of human rights protecting activity'. Our lawyers
had been brought up as prison wardens and political indoctrinators. Lenin taught
them: 'there is no moral in politics'.
Certainly there is a well-grounded danger that this position
will be given to some discredited general procurator. In order to avoid this we
must use a well-known recipe to elect the ombudsman, taking account of the
public opinion, to be precise, the human rights protectors' qualified
opinion.
Unfortunately, the role of the public opinion in appointing the
ombudsman and in assessing his activity is not reflected in the draft. Beside
this Dnepropetrovsk center suggests the following changes to the draft:
- the ombudsman should not merely 'contribute' to the process
of restoring violated rights (all the state must contribute to this process) but
he must 'achieve the restoring of the rights and recompensing the damage';
- the right to turn to the ombudsman must be given not only to
individuals but to labor collectives and nongovernmental public
organizations;
- the first ombudsman must be appointed not for the term of 7
years, but only for 2-3 years, to facilitate the correction of a possible
mistake in choosing the candidature;
- the ombudsman must be given the right to inspect trials
without violating the principle of independence of court. LEGAL ENLIGHTENMENT
Penitentiary system in Ukraine and international penitentiary
rules
Grigoriy Maryanovskiy, co-chairman of Kharkiv Group for human
rights protection
International meetings held since the last quarter of the 19-th
century (the first was held in 1872 in London, one of the following - in St.
Petersbourgh) were used for the development of 'Minimal standard rules of
keeping convicts' which were recommended for adoption at the League of Nations
in 1934. The rules contained a classification of convicts and regimes of their
keeping, problems of prison personnel, preparation of convicts to releasing,
etc. The General Secretary of the League of Nations addressed the governments
who undersigned the rules with the request to make them known by the public
opinion.
WW2 forced people to reassess many historical and social
values. The UNO was created after the war, the Universal Declaration of Human
Rights was adopted (in 1948) as well as many pacts and conventions of liberal
orientation. All this led to reconsideration of the 'Minimal standard rules'.
The new draft of 'Minimal standard rules of treatment the prisoners' was
recommended by the Commission of the Economic and Social Council and adopted at
the 1-st UNO Congress on preventing crime and treatment of law-violators in
1955. At the same time the decision was taken on periodical reports (one time in
three years) to the UNO General Secretary.
In order to promote the implementation of the Rules and
realizing ideals and principles of the European cultural inheritance, the
Council of Europe formed in 1967 the European Committee on Crime Problems (ECCP)
which was made responsible for the activity of the Council of Europe carried out
in this field. In 1968 ECCP was requested to change the UNO rules for making
them correspond the modern penitentiary policy with the aim of their further
efficient application.
The text of the European version of the Rules first appeared in
the resolution of the Committee of Ministers in 1975. Somewhat later the
Committee on cooperation in penitentiary questions was created. The Committee's
duty was to encourage the development of modern methods of keeping convicts, to
organize conferences, to serve as the information center, to prepare reports to
the General Secretary of the Council of Europe, to create a systematic
qualification of minimal standards in the framework of special legislation.
The European penitentiary rules in the present form were
adopted by the Committee of Ministers in 1987.
The Rules are not compulsory for fulfillment, they rather
present a set of standards and practical measures for those countries which
accepted the rules as the basis of the corresponding part of their legislation.
It should be noted that they are minimal rules, while the national standards are
expected to be better.
The main goal of the international documents in the
penitentiary domain is the preparation of the convict for returning to normal
life. The reforming efforts (labor, social preparation, general education and
professional training, physical training, etc.) are intended for the support or
restoration of the physical and psychic health and for the subsequent
reintegration into society.
The Rules must weaken the negative effect of the incarceration.
It is difficult to estimate the positive influence of the Rules on reforming
criminals (the percentage of the repeated crimes is high in many countries, and
in our country for some kinds of crimes recidivism reaches 50%), but it is clear
that the repressive policy never decreased the number of criminals, and cruelty
breeds cruelty. And it is true that the policy of Ukraine in the protection of
law differs little from the repressive policy of the USSR, both in the
legislation and in the law applying practice.
The rules consider such questions as the management of
penitentiary establishments and to the distribution and the classification of
prisoners. The Rules pay great attention to the state of the cells which
immediately affects the living conditions and the moral atmosphere; the Rules
recommend 'to put prisoners for the night to separate cells'; sanitary equipment
must be adequate and enable prisoners to fulfill their body functions under the
conditions of decency and neatness; nutrition must be adequate and healthy;
'handcuffs, straight jackets and the like must not be used as a punishment under
any conditions'; the prisoners must be given religious and moral support.
The Rules dwell upon the questions of training the prison
personnel: 'prison wards shall study the European penitentiary rules and the
European Convention on human rights', they are taught how 'to ensure for
prisoners the conditions compatible with human dignity', 'to reduce to the
minimum the negative consequences of incarceration' and so on.
The Rules stress the necessity of the preparation to the
release. The administration of prisons should cooperate with social services and
public organizations.
There are additional rules for those who stay in the detention
blocks during the criminal investigation and trial. This category of the
prisoners 'should have the opportunity to live in a separate cell', they must be
able to communicate with their family, friends and people, contacts with whom
are legally permitted.
In Ukraine the legal base of the penitentiary system is the
reforming Labor Code (LC) and the Rules of internal regime. Article 1 of LC
formulates the purpose of incarceration as 'reforming of the prisoners in the
spirit of the honest attitude to labor'. In reality this is reduced to the
isolation of convicts from the society. Along with the restriction of freedom,
prisoners suffer from inadequate conditions.
And the reason here lies not only in the catastrophic state of
the Ukrainian economy which tells on the medical aid, nutrition and the like.
The main reason is the attitude to the detained and the condemned, which has not
changed much since the times of the USSR.
For example, according to the law 'On militia', a detained
person may be kept for ten days without any accusation, in the law 'On
preliminary encarceration' the regime of the detained practically does not
differ from those for the condemned.
As is well known, the conditions in the preliminary prisons
(for those who have not yet been found guilty) are inhumane, cruel and
degrading. By February 1, 1997 in 32 preliminary prisons of Ukraine 43, 700
people were kept, which is more than two times exceeds the number of prisoners,
compared to the norms. TB and infectious diseases are frequent. The additional
sufferings are inflicted by prison wards.
Ukrainian courts in most cases rule to keep the suspects in
preliminary prisons; such measures as release on bail or on the promise not to
escape are extremely rare. In bringing verdicts courts base their resolutions on
the confession of the suspects, and criminal investigators squeeze the
confessions by applying moral or physical duress. These factors overweigh
economic ones.
By the way, the procedure of temporary detention of suspects is
regulated not by the Criminal-Procedural Code, but by the 'Regulations on the
procedure of temporary detainment of persons suspected in committing a crime',
which has never been published. In detention blocks of the USS the procedures of
keeping prisoners are also regulated by closed instructions'. As to colonies
where the criminals are sent after the verdict, the situation is also close to
critical. By the data on 1 February 1997 in 137 colonies about 173, 000 convicts
were kept, 85, 800 were incarcerated in 1996. More than a half, 56.6% are
condemned for short terms.
In the Criminal Code of Ukraine as well as in the draft of the
new code no alternative measures of punishment (alternative to incarceration)
are mentioned, although alternative measures would certainly remove many
economic problems and decrease the percent of recidivists for whom the modern
penitentiary system is an efficient school.
Specialists consider that at least 30% of the condemned could
be punished by alternative measures. Legal reforms remain in slumber, new
Criminal, Criminal-Procedural and Reforming Codes do not account for the
international norms and the new Constitution. The situation requires great
efforts. The most pressing problems are: shortening terms of keeping under lock
during the criminal investigation and trial, introduction of alternative
measures of punishment, introduction of the probation system and so on.
Last but not least, those who enforce laws must themselves
observe laws, including the international laws that Ukraine promised to
fulfill. DISCUSSION ON DEATH PENALTY
We have published many materials whose authors support the
abolition of the death penalty in Ukraine. Here, for the balance, we publish the
letter of the opponent of such views.
Permit me to disagree
A. Yurchenko, Black-Sea districtal organization for human
rights protection, Crimea
Recently I left a hospital but, in fact, I was not treated.
Now, if one is penniless, one is doomed, in spite of Article 49 of the
Constitution which states that every man has the right to medical aid and that
in state hospitals this aid is given gratis.
The Constitution that has been discussed so long and adopted so
long has not brought any good to the people, because nobody is punished for
violations of the Constitution. There is no light at the tunnel's end. Our
leaders do not care of the health and life of the people, of six month pay
arrears.
Ukraine was accepted to the Council of Europe. Has a country,
where the legal havoc realms, the right to be an a member of the Council of
Europe? People are starving and dying, like at war and the West is silent.
Professional human rights protectors of Ukraine are also silent because their
organizations serve their egotistical interests.
Is it the right time to abolish the death penalty in the
country where the crime is steadily growing? Why do not the USA abolish the
death penalty? I think that first of all we must raise the standard of living in
Ukraine and then we shall have the moral right to enter the Council of Europe
and, may be, to abolish the death penalty for those criminals whose guilt was
not completely proved. First of all, the state must care of innocent citizens
who are killed by criminals, not how to preserve the lives of the criminals. The
state is unable to provide normal life to millions of law-abiding citizens, but
it finds the opportunity to think how to preserve murderers' lives. We must not
blindly copy Western customs, we must also look at the East, where the countries
are populated by religious people who do not intend to abolish the death
penalty.
In issue No.12 of 'PL' the article 'Punishment or revenge?' was
published. Members of our organization would like to know what would the
authors' attitude be if (God save them! ) they lost a relative or a friend from
the hands of a murderer? It is easy to speculate in a comfortable armchair. I am
sure that any referendum would vote for the death penalty of grave criminals
whose guilt has been convincingly proved.
It is true that the state kills its citizens, but mainly
without death verdicts, merely by violating the right for life. Here the efforts
of human rights protectors must be focused. Only those who live without troubles
in our difficult times can allow themselves to gab about the abolition of the
death penalty.
In our opinion, Ukraine is economically not prepared to the
abolition of the death penalty and if countries of the Council of Europe insist,
they must take Ukrainian murderers and keep them in their comfortable prisons
for life. But such foreign countries would not agree. They want to demoralize
and corrupt Ukraine. I do not believe that anybody in the West cares a pin for
the prosperity of Ukraine. In their society man is a wolf to other man,
whichever they themselves say.
In 'PL' No.12 it is mentioned that the President of Ukraine
signed the Edict 'On measures guaranteeing the constitutional right of citizens
to address the administration'. Unfortunately, neither the date nor the number
of the Edict have been mentioned. This Edict says that the President orders all
the bodies of the executive power to accept written applications and complaints
of citizens and give a well-grounded answer.
As a deputy of the Districtal Soviet, I more than 20 times
turned to the chairman of the Districtal Soviet, to the editor-in-chief of the
districtal newspaper, to different commissions of the district, but I got no
answers at all. My addressees do not answer, ignoring the Constitution, Edicts
and Laws. Our organization is desperate. If 'a vertical' existed in human rights
protecting activity, we could address higher instances, but they do not exist.
What shall we do?
CLIPPINGS FROM PRESS
The Ministry of Education informed the public that state-owned
higher schools would take paying students without limitations, determined by the
state order for specialists. But this order is considerably diminished this
year. Besides the cost of education in a state higher school is much greater
than in a private one.
'Kievskiye Vedomosti', 26 April 1997
***
Ministry of Labor informed that during the last year the number
of jobless in Ukraine trebled. During four months of 1997 the strain has
doubled. At the same time the employment fund got no financing at all. This is
caused by the abolition of compulsory contributions of enterprises to this fund,
while no other sources of financing were created. The state employment center of
the Ministry of Labor communicates that 15 jobless on the average pretend for
each vacancy. This is the average data, but in different regions this ratio
varies from 2 in Sebastopol to 161 in Ivano-Frankivsk region.
'Ukraina moloda', No.86, May 1997
***
Ministry of Economy predicts that the population of Ukraine
during next 30 years must reduce by 4 million and in 2020 will be approximately
46.7 million. During 10 next years all age groups will diminish, especially the
number of children.
'Slobidskiy kray', 22 May 1997
***
In the first quarter of 1997 the number of crimes diminished by
5333 compared to the corresponding period of the last year. The percentage of
disclosed crimes reached 74.2%. This is, perhaps, a somewhat distorted
statistics. For example, the number of premeditated murders in the first quarter
of 1997 is 1058 less than in the same period of the last year. But in this
quarter almost 12, 000 were missing and only 6, 500 was found. How many of the
rest are killed? The MIA report is silent about this. In 1992 2877 dead bodies
were found and in 1996 the number grew to 8174. Minister Kravchenko reports
decrease of the number of premeditated murders, but the number of dead bodies
grows. How one can understand this paradox?
'Kievskiye vedomosti', 14 May 1997
Life costs money
Yuri Kravchenko, the Minister of Internal Affairs, communicated
that 'rebuilding of existing colonies for the prisoners with life terms will
cost 35 million grivnas'. One must add to this sum the expenditures for training
the personnel, for improving the qualification of detectives, judges and workers
of the penitentiary system. The Ministry must pay for the special regime for
eternal jailbirds according to the European standards because international
commissions and other VIPs will frequently visit such establishments. Upkeep of
one prisoner of this sort, according to Nikolay Khandurin, the Deputy Minister
of Justice, will cost the state budget about 8 million grivnas per year.
'Kievskiye vedomosti', 22 April 1997
***
Lenny Fisher, President of the Parliamentary Assembly of the
Council of Europe, after the meeting with the Prime-Minister Pavlo Lazarenko has
declared in her interview with newsmen that it is too early to raise the
question of the complete prohibition of the death penalty in Ukraine. She has
said that taking up this decision requires time and efforts to prepare the
society.
'Vseukrainskiye vedomosti', No.82, may 1997
Crimes committed by law enforcers
Kiev City Court started the trial of two officers and one
probationer of a precinct in Kiev. The suspects are accused of a murder and
accomplice to the murder of a young lawyer who accidentally met the drunken
militiamen near the universal store 'Children world'. After a 'discourse' of the
lawyer with the representatives of power in the militia precinct the dead body
of the lawyer was found near a garbage bin in the street. The criminal
investigation of this case lasted a year and found out plenty of disorders.
'Golos Ukrainy', 17 May 1997
***
More than 300 inhabitants of the town of Cherkassy sent a
letter to G. Vorsinov, General Procurator of Ukraine, where they demanded to
dismiss the procurator of Cherkassy. The letter points out that 'in the system
of law enforcing agencies of Ukraine the most popular method of criminal
investigation is beating a suspect to force him to confess his guilt'. In the
capacity of 'one of later facts of committing crime against justice' the letter
mentions the notorious case of a school teacher Sergey Falkovich who is accused
in raping a nine-year-old schoolgirl. The right commission of the All-Ukrainian
Committee for human rights protection, having studied the materials of the
preliminary investigation, has come to the conclusion that Falkovich was framed,
that material exhibits were faked and that the investigators applied
'non-procedural measures to the suspect'. MIA organized an inspection in
Cherkassy and did not find any facts to confirm the illegal methods of
investigation with respect to Falkovich. The latter's advocate, Galina Lobanova,
declared that she would present the evidence confirming maltreatment of her
client and prove that the results of one expertise had been falsified. Both the
advocate and journalist Valentina Vasilchenko, who investigated this case on her
own initiative, declared that they were tailed.
If Falkovich really committed the crime, his guilt must be
proved by legal methods.
'Kievskiye vedomosti', 13 May 1997
***
On 25 April relatives and friends buried 16-year-old Kievan
Evhen Smeyan. During several months he was imprisoned in the detention block of
-1 of MIA of Ukraine (Lukyanovskaya
prison). Evhen had never complained for his health, his relatives say, but
prison doctors insist that Evhen had a heart stroke. The investigation has been
started to check whether the death of Evhen was caused by cell-mates or prison
wards. At the same time a parallel version is checked: some time before Evhen
had been brutally beaten in one of militia precincts, so the fatal end could
result from the beating.
'Kievskiye vedomosti', 26 April 1997