Letter to Ambassadors of G20 states

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Interfactional Parliamentary Association
«For the Protection of Violated Rights of
For the Protection of Violated Rights of
                    «Forbidden to Forbid»                     

Your Excellency,

On behalf of the Interfactional Parliamentary Association “For the Protection of Violated Rights of Citizens and Against Political Repression “Forbidden to Forbid”, let me express my deep respect to you.

Ukrainian people highly appreciate the support of your country and are grateful for continuous attention to the events taking place in Ukraine. Following our previous letter (Ref. 357/2-143 dd 06.06.2016), we have to inform you about the actions of Ukrainian authorities regarding the violations of rights and freedoms of its citizens that raise extreme concerns.

Violations of journalists’ rights

The cycle of events during July-September 2016 is characterized by intimidation of journalists, attempts at breaching constitutional rights of citizens to receive objective, unbiased information.

In particular, the demonstrative murder of the journalist Pavel Sheremet, whose car exploded in the center of Kyiv in the morning of Wednesday, July 20, 2016. It should be noted that shortly before the murder, the journalist filed a statement to the police about being followed. Special attention should be paid to the actions of  law enforcers’ actions – the burning car was not extinguished in a timely manner, at the same time the journalist’s laptop as well as cell phone were completely destroyed, also the case materials leaked. Security for the murdered journalist’s colleagues was provided only after the interference in the case of the President and the Prosecutor General.

The murder caused shock and generated a real fear amid many of his colleagues. Unprofessional conduct of the police convinced the society and journalists – no one can be guaranteed of safety.

In all information materials previously sent to the Embassy, we have drawn your attention to the fact that there is an attempt to build like-mindedness in Ukraine, and that the illegal armed militarized formations and volunteer battalions are an extension of political parties and projects.

Thus, a logical continuation of intimidating journalists has become the events associated with the “Inter” TV Channel.

The office of “National Information Systems” in Kyiv was attacked on September 4, 2016 – as a result the work of “Inter” TV Channel was blocked (September 5-6, 2016). The building was submerged in thick smoke, moreover, the attackers in helmets and masks, arousing fear in employees, set news studio on fire and even made “performance”: it can be seen from surveillance cameras’ recordings that one of the attackers was holding the girl in a chaplet at the entrance to the building.

The results of their own investigation of September’16 events around the TV Channel were published by “Opposition bloc” faction:

“Leadership and members of Party of “People’s Front” are the organizers of the terrorist attack on September 4 and “Inter” TV Channel blocking on September 5-6. They are – Kiva, the soldiers of the civil body “AZOV”, “St. Maria”, part of the radicals from Dmitriy Korchinskiy and Dnieper crime boss Vadim Mizera, as well as the head of the “Kievsportclub” Aleksey Kopyshinskiy”.

According to some pieces of information disseminated among Members of Parliament former Security Service of Ukraine Director Valerie Khoroshkovskiy took part in “Inter” blockage by getting unidentified paramilitary fighters to act together with the soldiers of the civil body “Azov” and criminal gangs. The purpose of these actions was to pressure on the supposedly “share debt” of “Inter” beneficiaries Lyovochkin and Firtash.

Outrageous was the death threat for people that due to chance and luck managed to get out of the burning building and not to become victims of the fire.

The US Embassy in Ukraine, Ambassador Marie Yovanovitch and individual members of the OSCE were the ones who expressed concern about the current events. No public statements by representatives of other Embassies or European Commission to Ukraine were made.

These events embodied failure of Ukrainian state to comply with some of constitutional obligations regarding the protection of individual rights: the right to life (Article 27 of the Constitution of Ukraine) and security (Article 3 of the Constitution of Ukraine). Taking into account the professional journalistic activities, we are also dealing with violation of Article 34 of the Constitution – the right to freedom of thought, speech and free expression of his views and beliefs.

In addition, journalists are entitled to special protection. Thus, Article 171 of the Criminal Code establishes liability for willful preclusion of legal professional activities of journalists.

Moreover, Art. 17 of the Law of Ukraine “On state support of mass media and social protection of journalists” establishes liability for an attempt on the journalist’s life and health,  other actions against him/her and liability against the moral (non-property) damage.  Liability for committing a crime against journalist in conjunction with his/her performance of professional duties or preventing him/her from performing occupational activity shall be compared to liability for committing the same action against a representative of law enforcement bodies.

There is a failure to comply main duties by police arising out of relevant law “On the National Police” (2015) – Article 2:

  1. The task of police is to provide police services in the areas of:
    1) Ensuring public safety and order;

2) protection of human rights and freedoms, as well as the interests of society and the state;

3) combating crime”.

At the same time, in the case of “Inter” TV Channel component elements of crime definitely took place on such Articles of the Criminal Code of Ukraine as Art. 296 (hooliganism), Art. 258 (terrorism), Art. 171 (preclusion of legal professional activities of journalists), subject to the mandate of the national police.

To the infringement of freedom of speech and the rights of journalists in Ukraine relates to the draft amendments to Law of Ukraine “On Television and Radio Broadcasting” №4815 adopted on September 8, 2016 by the Verkhovna Rada in the first reading[1]. The draft Law provides the empowerment of National Council of Television and on Radio Broadcasting, in particular, it concerns its right to fine television and radio stations for 25% of the license fee notwithstanding whether the prior notice was issued or not. The draft Law is a clear crackdown on freedom of expression provided for in the Constitution of Ukraine and its limitation.

In addition, it seems to be at variance with the jurisprudence of the European Court of Human Rights (ECHR) – Thorgeirson v. Iceland, 1992, Jersild v. Denmark, 1994, Dalban v. Romania, 1999.

Abuse of prisoners’ rights 

According to the International human rights organization Amnesty International in Ukraine, there are secret prisons of the Security Service of Ukraine (SBU) at least located in Kharkov, Mariupol, Kramatorsk and Izium, from where 13 persons were released on the eve of the of the delegation’s visit of the UN Subcommittee on Prevention of Torture on August 29, 2016[2].

In this case, the following legal violations take place. The fact of existence in SBU “their” own prisons. Ukraine reported to the Council of Europe about the closure of the detention unit of SBU in 2003[3], since, according to the international obligations of our country, detention centers may exist in Ukraine only under the auspices of the Ministry of Justice – in the framework of the State Penitentiary Service.

Secondly, committing torture to persons detained in such prisons, is a violation of national law (Art. 28 of the Constitution), a peremptory norm of international law ergo omnes character, as well as the norms of a number of international conventions of the universal (the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)) and regional levels (the European Convention for the Prevention of Torture and Inhuman or Degrading treatment or Punishment (1987)), Art. 3 of the European Convention of the Protection of Human Rights and Fundamental Freedoms (ECHR) (1950)), to which Ukraine is a party.

Thirdly, the fact of detention of persons without trial in prison is the violation of Art. 29 (the right to freedom and personal inviolability), Art. 55 (protection of the rights in the court) and Article. 64 (inadmissibility of the restriction of constitutional human rights) of the Constitution of Ukraine, Art. 5-6 of the ECHR (right to liberty and security of person and the right to a fair trial), Art. 9 of the International Covenant on Civil and Political Rights (1966) (no one shall be subjected to arbitrary arrest or detention).

The censorship of the book market

The draft law proposed by the Cabinet of Ministers dd 08.09.2016[4] on licensing of books imported from Russia violates several provisions of the Constitution of Ukraine and its international obligations.

The regime of publishing products licensing was introduced in Medieval Europe, as governments and religious leaders began to fear that the power of the press may cause the population to rise against their leaders. In 1501, Pope Alexander VI issued an edict against unlicensed printing, which was followed by decrees issued by the British, German and French authorities.

First of all, the introduction of licensing of book products can be considered as a kind of censorship prohibited by Art. 15 of the Constitution of Ukraine and an unmotivated restriction of freedom of speech set out in Art. 34 of the Constitution of Ukraine, as well as a violation of Art. 10 of the Constitution of Ukraine providing for free development, use and protection of Russian language and promotion of study of international communication languages, one of which, as an official UN language, is Russian (resolution 2 (I) of the UN General Assembly as of February 1, 1946[5]).

In addition, the provisions of a number of international legal instruments, to which Ukraine is a party, have been violated: the European Convention on Human Rights (Article 10 “1. Everyone has the right to freedom of expression The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary”. No single point of prescribed draft Law “licensing of publishing products” in this article is not allowed), the International Covenant on Civil and Political Rights (Art. 19, paragraph 2 – “Everyone has the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas, regardless of frontiers, either orally, in writing or in print, in the form of art, or any other media of his choice”), the European Charter for regional or minority languages ​​(1992) (Art. 7 “The parties base their policies, legislation and practice on the basis of the objectives and principles: … d) promote the use of regional or minority languages, in speech and writing, in public and private life and / or encouragement of the use”).

In addition, the practice of the European Court of Human Rights is violated, as provided for the creation of “expert authorized agency commission” may consider the entire “publishing products originating and/or imported from the territory of the aggressor state” for its license providing for the import and distribution on the territory of Ukraine. Moreover, freedom of artistic creativity and the free flow of works of art, which can be limited only in non-democratic societies (following this logical line, novel by M. Bulgakov “White Guard” is subject to the ban as well): “In his creative work, the artist expresses not only his personal opinion but also the opinion of the world he lives in. In this respect, art helps shape not only public opinion, but also it is an expression, and therefore, can put the audience face to face with the most pressing issues of the present day” (Otto-Preminger-Institute v. Austria, 1994). In addition, the ECHR noted that “Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for the progress and development of each individual” (Handyside v. United Kingdom, 1976).

However, the licensing schemes and the obligation to state registration of imported publishing products would rather obstruct than promote freedom of speech and the right to receive and disseminate information. They also do not meet the authorized international law restrictions on freedom of expression: it shall be prescribed by law and be necessary in a democratic society for the respect of the rights or reputations of others, protection of national security or of public order, health or morals (Article 22, p.3 of International Covenant on Civil and Political Rights).

In addition, the fact that the production license basing on its production feature in a certain state violates the commitments made by Ukraine in the framework of the World Trade Organization concerning non-tariff barriers and licensing (General Agreement on Tariffs and Trade (1994), and does not meet the exceptions provided for in Articles XX-XXI).

 

Absurd Draft Laws 

Within a new session of the Verkhovna Rada of Ukraine, which began in September 2016, some draft laws violating a number of fundamental human rights were proposed for consideration. On 06 September 2016, a member of Paliament, I.A. Lapin came up with the draft law №5086 on the prohibition of propaganda of criminal organizations on the territory of the breakaway individual Donetsk and Luhansk regions[6]. According to the draft law, it is proposed to prohibit mass media using in their public information activities the names of the self-proclaimed Donetsk (DPR) and Luhansk People’s Republics (LPR) (Art. 3). Violation of the draft law is the condition of the termination of mass media’s activity and the revocation of their license (Art. 5).

These limitations are a brutal example of censorship and interference in the editorial policy of mass media by the state authorities so violating  norms of the Constitution and laws of Ukraine, as well as obligations under the membership of the Council of Europe and the participation in the European Convention on Human Rights (ECHR) in the context of freedom of speech. In addition, such an unambiguous reference to the perception in the media “DPR”/“LPR” like their “propaganda” is a clear exaggeration and can be interpreted very broadly by controlling bodies.

On 12 September 2016 such members of Parliament as T. Chornovol, I.Vinnik, I. Friz, V.Krivenko, U.Bereza proposed a draft Law of Ukraine № 5112 “On Amendments to Certain Legislative Acts of Ukraine concerning the strengthening of responsibility of military and certain other persons”[7]. On the one hand, this document is provided strengthening the administrative, criminal and disciplinary liability of military officers, added a variety of categories of penalties for them along with disciplinary liability. On the other hand, the operation of the articles regarding administrative, criminal and disciplinary liability of military officers were expanded for reservists during the meeting. Such rules, giving ample opportunity for applying various types of punishment for military cartel authorities, make corruption possible in order to avoid one of the types of liability. The operation of such articles restrict rights of reservists as citizens of Ukraine, which are actually not military officers according to the Law of the Armed Forces of Ukraine and form a separate legal category (Art. 16), equal to citizens of Ukraine in scope rights. The draft law equates them to military officers, so violating the equality of citizens prescribed by the Constitution of Ukraine (art. 21). From the standpoint of Ukraine’s obligations under the ECHR, the right of the Ministry of Defence to establish “The procedure and conditions for soldiers, conscripts and reservists during meetings, arrested in administrative order” (Art. 327-1) is questionable. This provision, relating to the limitation of human rights shall be clearly regulated by law and not bylaw, as it has established by the practice of the ECHR.

In addition, the above-mentioned law provides space for narrowing of the rights set out in the previously existing legislation, that is constitutionally prohibited in Ukraine (Art. 22) – it is about the possibility of deprivation of people “status of participant of combat actions” (amendments in Art. 6, p. 19-20 of the Law of Ukraine “On the Status of War Veterans and Guarantees of their Social Protection”).

Member of Parliament T. Donets proposed a number of draft laws aimed at making amendments and supplements to the law on combating corruption. Several provisions of these draft laws have questionable content in the framework of respect for the rights of persons declared. Thus, it is proposed to grant the right to declare the subject to open a full or partial access to its declaration on the website of the National Agency (amendments to Art. 47 p. 4 of draft law №5079 dd 06.09.2016)[8]. This provision could violate the rights of third parties whose information is also displayed in the declaration and are now in limited access, but in case of approval the provision – may be disclosed without their consent. Moreover, among the information putting down in the declaration, a provision on declaration of paid taxes and fees, as well as charitable aid transferred to non-profit organizations was added (amendments to Art. 46 p. 13-14 of the draft law №5081 dd on 09.06.2016)[9]. This provision is unlikely to decrease the level of corruption, and only leads to a restriction of the right to protect the privacy of declaring individuals stipulated by Article 32 of the Constitution of Ukraine and Article 8 of the ECHR.

Violation of the right to work

On 3 September 2016 Ukrainian mass media disseminate the information about the suspension from work and the beginning of dismissal procedures of Kovalchuk sisters, who taught at the National Pedagogical Dragomanov University in Kyiv. The reason for the dismissal was their statements in social networks, characterized as a “separatist”.

There is no doubt, teachers who take photos on the background of the Kremlin on the Day of Independence of Ukraine and publish them, demonstrate unpatriotic position of Ukrainian citizens. At the same time, violent aggressive reaction of intolerance, infringement of the right to freedom and public flogging is excessive and characterizes the critical level of intolerance in society, including the “elite”, which call themselves students and teachers.

Personal civil position of a citizen of Ukraine is not a reason to restrict his right to work. Secondly, the dismissal is only possible in compliance with a number of labor laws. Thirdly, in case a teacher works under contract, its breach initiated by  one of the parties is possible only on the basis of clearly defined provisions therein and legislation. The mere fact that certain phrases of some persons are considered as “separatism” is not a reason for dismissal and the fact of such understanding shall be proven by appropriate examination.

The expression of individual’s thoughts in social networks should be considered as the feasibility of his/her freedom of expression set out in the Constitution of Ukraine and a number of international legal instruments to which Ukraine is a party and regulations that should be followed.

Violation of the right to the protection of private property

On September, 7 2016, according to media reports the employees of the Ukrainian Security Service conducted a search in the Sergei Bobyrev’s apartment in Sumy, one of the leaders of the so-called “Organization of young intelligence agents – scouts” (OYIAS). This event attracts the attention of the illegal presence of the representatives of the Right Sector, headed by Mr.Suprun, who blocked the entrance, and stayed in the apartment itself with the permission of the SBU.

Without denying the rights of the Security Service and other law enforcement agencies to conduct operational activities against subversive and scouting groups in the border regions of Ukraine, it is unacceptable to agree with the practice of violation of laws and the Constitution of Ukraine, as well as the political involvement of paramilitary groups in legal proceedings.

Firstly, the existence of paramilitary groups such as the Right sector, beyond the legitimate armed forces in Ukraine, is illegally (Art. 17 of the Constitution of Ukraine). Secondly, search procedure is regulated by Art. 234-236 of the Criminal Procedure Code, which states that only persons referred to court decision may perform the search. If persons, not mentioned in the court decision, carry out the search – such persons should confirm their mandate i.e. to submit relevant directive by investigator or prosecutor on the criminal proceedings to several investigators, or other appropriate procedural document. Moreover, the presence of persons not authorized to carry out the search in the territory of another’s private property without the owner’s consent violates the constitutional right to the protection of private property (Art. 41 of the Constitution of Ukraine).

Pressure on judges

For the past two years, the judicial branch is systematically pressured on. It is widely known facts of pressure on the Constitutional Court of Ukraine during consideration of the case for a constitutional appeal of 47 members of Ukrainian Parliament regarding the congruence of separate parts of the Law of Ukraine “On the cleansing power” (lustration) with the Constitution of Ukraine.

As a leader of Interfractional Association, I met with the judges of the Constitutional Court on the matter. As the result, the appeal regarding the physical protection of judges for the period of case consideration and informing about the responsibility for inaction was sent to the President, the Security Service of Ukraine, Ministry of Interior Affairs and the National Police. National police made records in the Unified Register of pre-trial investigations and initiated the appropriate clerical correspondence.

Increased levels of crime in Ukraine

As it was acknowledged by the Minister of Internal Affairs Arsen Avakov, the crime rate in Ukraine currently increased by 30-40%. Law enforcement officials try to justify the statistics by a new approach of recording the undetected crimes, but also recognize that the country is awashed with weapons, which contributes to the spread of crime. Among other things, the government agrees with the fact that the significant increase in the number of economic crimes is reasoned by deep economic crisis and the impoverishment of the population.

For example, in the capital of Ukraine – Kyiv, the crime rate increased by 2,5 times. The main reasons for this surge are the migration inside the country, falling living standards and military factor, which introduces weapons into civilian life and provokes mental destabilization of the population.

Issues of internally displaced persons

According to Oksana Yermishyn’s reports, a Chairman of the Association “All-Ukrainian Organization for Support of the internally displaced persons”, two million people emigrated from the war-torn apartments are currently in difficult living conditions on the territory of Ukraine.

They are unable receive subsidies and preferential loans for apartments, because they rent apartments without lease agreements. At the same time, they pay for utilities of left housing in the occupied territory, and the Ukrainian government refuses to settle the matter, shifting the problem onto the shoulders of the citizens themselves.

That is, citizens are actually paying twice. This violates the norms of the Law “On ensuring the rights and freedoms of internally displaced persons” (2014) providing for the state granting such persons temporary living space (Article 11, paragraph 8..). As well as the state does not fulfill the norm of the Constitution (Art. 41 – No one shall be unlawfully deprived of the right for property. The right for private property shall be inviolable).

The status of internally displaced persons is checked twice a year. Actually, the principle of equality of citizens provided in the Constitution (Art. 24) violates. Within the framework of monitoring their presence on places of temporary accommodation, the authorities posted ads with lists of citizens to control their place of residence. This violates the right to privacy of individuals.

Violation of the rights of opposition

The practice of forming the agenda of the Verkhovna Rada without the participation of representatives of the opposition continues. As before, we are witnessing a sorting out relationships regarding overpriced tariffs and corruption in the NERC.

In fact, the opposition activities are limited by the allowed performances in the media but without the possibility to influence the processes inside the country through the Verkhovna Rada or judicial power, which is either intimidated by the activists blocking the courts during the cases (in particular, the blocking incident in Pechersk Court), or refuses to perform duties (in particular, the Constitutional Court in the case of lustration).

We have to emphasize that the issue of violation of the rights and freedoms of individual and citizen in Ukraine, described in e-monitoring for January-June 2016 in details and sent to your, continues. The current government deliberately promotes deterioration of democratic values in the country and the representatives of the European Commission, as a rule, occupy the position of inaction.

Your Excellency, this situation is contrary to European values, the supremacy of law and legal order. We would ask you to pay attention to issues of violations of human rights and freedoms in Ukraine and to take a proactive position on the matter.

[1] http://news.liga.net/news/politics/12560029-rada_mozhet_razreshit_shtrafovat_telekanaly_bez_preduprezhdeniya.htm, http://ua.112.ua/video/radykalna-partiia-ne-bude-holosuvaty-za-zminy-do-zakonu-shchodo-telebachennia-i-radiomovlennia-liashko-210072.html

[2] http://strana.ua/articles/analysis/29312-tajnyh-plennikov-sbu-osvobozhdayut-pered-vizitom-oon.html

[3] http://www.unian.ua/politics/97518-nina-karpachova-verhovna-radi-mae-ostatochno-pozbaviti-sbu-funktsiji-slidstva.html

[4] http://195.78.68.90/af727229/docs/d8a97436/Proet_Zakonu.pdf

[5] http://www.un.org/ru/documents/ods.asp?m=A/RES/2%20(I)

[6] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=59945

[7] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=60010

[8] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=59938

[9] http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=59940&pf35401=398539

 

Yours sincerely,
Andrii Derkach
Member of Parliament of Ukraine,
Chairman of the Interfactional
Parliamentary Association “For the
Protection of Violated Rights of
Citizens and Against Political
Repression “Forbidden to Forbid”

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