Current monitoring observance of the constitutional human rights in Ukraine covers the period from January to the beginning of December 2016.
Monitoring consists of sections, each of which is considered in three dimensions: the existing constitutional rights, international standards and commitments undertaken by Ukraine, the precedents of their violations in the framework of activity/inactivity of Ukrainian authorities.
During the analysis process, the official communication with the relevant government bodies responsible for certain directions of ensuring human rights has been established. The bodies have been presented a number of questions, the answers to which are reflected in this survey.
When analyzing the official documents provided by state authorities, the statistics, analysis of mass media and other public information sources, reports and other materials received from official sources, including websites of state bodies have been used.
2016 has been extremely difficult for Ukraine with regard to human rights. Problems in the public administration accumulate; population is obviously tired from ATO issue quarterly rising tariffs within three years putting a number of categories of citizens below survival line. Pressure from pro-war formations actively continues to apply in the courts, in addressing religious disputes, restrictions on the right to freedom of expression and assembly. Authorities often remove themselves from the protection of the rights of citizens, or are tied to the chariot of “activists”. Serious problems exist with ensuring the rights of millions of Ukrainian citizens, who are internally displaced from combat zones and occupied territories. Freedom of speech is severely limited. Access of Ukrainian citizens to information from sources that do not reflect the official point of view is complicated or even blocked. Most of commitments undertaken by Ukraine in the framework of Ukraine-the EU Association Agreement with the terms of execution on “November 1, 2016” have not been fulfilled during the year. No amendments to the Law “On the cleansing power” (lustration), as recommended by the Venice Commission with the aim of bringing it into line with international standards, have been made.
It is precisely the situation with respect to human rights to which we would like to draw the attention of our European partners.
Problems in public administration
Media in Ukraine and abroad are full of information about the total corruption, incompetence and lack of system in the state administration, violations in the adoption of legislation and other disadvantages of current Ukrainian authorities. A glaring example of this trend is the situation with the Minister of Culture of Ukraine E. Nyshchuk, who has become famous at talk show on November 22, 2016 due to his racist statement about the absence of the genetic purity of Donbas residents to assume Ukrainian culture.
This statement is not only the unalloyed expression of ethnic discrimination, racism, propaganda of ethnic segregation, forbidden by mandatory provisions of international law (Art. 26 of the International Covenant on Civil and Political Rights (1966), International Convention on the Elimination of All Forms of Racial Discrimination (1966), Convention on the Suppression and Punishment of the Crime of Apartheid (1973), but also is contrary to Art. 21 of the Constitution of Ukraine.
The appointment of U. Suprun as of August 1, 2016 to the post of acting Minister of Healthcare of Ukraine is considered as null and void in terms of Ukrainian legislation. The fact that the only authorized person who is entitled to recommend a candidate to the post of Deputy Minister can only be a person holding a position of the Minister and accordingly sworn in as the Minister. However, U. Suprun was accepted for the position of First Deputy Minister by interim Minister of Healthcare of Ukraine V.Shafranskiy, who was the Deputy Minister and, accordingly, did not bring an oath and did not come to office as the Minister of Healthcare of Ukraine as a member of the Cabinet of Ministers of Ukraine according to the legal procedure under the Law of Ukraine “On the Cabinet of Ministers of Ukraine” (para. 12 of Art. 9, para. 3 of Art. 10, Art. 44), and, therefore, he had no right to submit to the Prime Minister of Ukraine recommendation about appointment for the position of First Deputy Minister (Art. 44 of Law of Ukraine “On the Cabinet of Ministers of Ukraine”).
In turn, Ukrainian Prime Minister V. Groysman, neglecting and ignoring the requirements of the current Law of Ukraine “On the Cabinet of Ministers of Ukraine”, adopted on July 22, 2016 a Decree on the appointment of U. Suprun to the post of the First Deputy Minister of Healthcare of Ukraine on the basis of submission, signed by the unauthorized person, which led to a gross violation of the Constitution and the requirements of current legislation of Ukraine.
Subsequently, V.Groysman accepted and signed another illegal decision on the appointment of the First Deputy Minister U.Suprun on the post of interim Minister of Healthcare of Ukraine violating the constitutional and legal requirements (Decree of the Cabinet of Ministers of Ukraine # 550-r dated July 27, 2016). Later, based on the examples of open and cynical disregard for the requirements of the Constitution of Ukraine, Laws of Ukraine and Decrees of the President of Ukraine regulating the legal relations in the sphere of public administration, V.Groysman illegally had appointed U. Suprun to the post of Acting Minister of Healthcare, and who, in turn, implemented a number of anti-constitutional unlawful appointments of personnel in high public administration.
In particular, without any powers of the Minister and the Member of the CMU in the understanding defined by the Constitution of Ukraine and Laws of Ukraine “On the Cabinet of Ministers of Ukraine”, “On the Central Bodies of Executive Power”, illegitimately appointed U. Suprun submitted unlawfully to the Prime Minister of Ukraine V. Groysman recommendations of the candidates of A.Linchevsky, O.Sivak, P. Kovtonyuk for the posts of Deputies of the Healthcare Minister. In its turn, on August 31, 2016 V. Groysman illegally decided to appoint them.
Staff shortage and substitution of the information agenda
After three years in power, current government clearly begins to feel staff shortage. As an example, instead of resigned Director of the Lustration Department T. Kozachenko, who has not fulfill the obligations to the Venice Commission on amendments to the Law “On the cleansing power”, on November, 23 there were attempts to appoint on her position 23-year-old A. Kalinchuk without any experience in the public service. Similar situation has developed in the Ministry of Internal Affairs, its Head A. Avakov appointed to the post of his Deputy for European integration 24-year-old A. Deeva, who was also without any particular work experience in the Ministry of Internal Affairs and famed for spicy photos on the Internet. In the latter case, the situation is simply outrageous, because system of the Ministry of Interior has suffered from a substantial loss of personnel and experienced staff as a result of thoughtless lustration, as demonstrated by the firefight on December 4, 2016 between the police and special forces of Corps operational and sudden action near Kiev in the village Knyazhychi, during which five policemen were killed from “friendly fire”.
In addition, one may just claim that by means of such appointments, the authorities deliberately substitute current information agenda trying to divert attention from the failures in the implementation of real reforms.
Another demonstrative example is the activity of A. Parubiy, the Speaker of the Verkhovna Rada, who put to the vote the issues and in case of their failure from the first attempt, he repeats the procedure until achieving the desired result.
While analyzing the expenditures of the EU assistance allocated to Ukraine, the European Audit Chamber expressed rather clearly its opinion re the level of corruption in Ukraine: “In spite of reform efforts, Ukraine is still regarded as the most corrupted country in Europe … oligarchic clans continue to exert a dominant influence on the economy, politics and the media information of Ukraine”.
Non-performance of the obligations to international partners
Regarding the relations between Ukraine and the European institutions, it should be noted that a complex of Ukraine’s commitments to the EU have not been realized at all or performed only pro forma. For example, there has not been made a single amendment out of 55, which should have been performed by November 1, 2016, and 83 commitments on legislative amendments out of 426 have remained unperformed. In addition, a whole set of obligations undertaken within the framework of Ukraine’s membership in the Council of Europe still have not done, namely: to adopt a law on the organization and conduct of peaceful activities (since 2010); to prepare and duly submit a draft of Electoral Code of Ukraine (since 2006); to prepare and duly submit a draft law on ratification of the European Convention on the Compensation of Victims of Violent Crimes and a draft law on bringing Ukrainian legislation in line with the provisions of the European Convention (2010), etc. Moreover, the state body that coordinates the implementation of the Association Agreement (and the European integration, in general) has agitated for several months. The Governmental Office for European Integration has been left without management since August 2016. It does not have a Chairman and two Deputies. The Government has been looking for candidates during four months, but without success so far.
There is a dependence of state authorities on the EU consultants and experts on fighting against corruption. The current government is clearly unable to recruit high-quality personnel and it significantly reduces the credibility of the foreign partners to Ukraine – it is systematic and very dangerous phenomenon. Moreover, foreign consultants act very sharply, without understanding of specific of the processes amidst the Ukrainian reality and the state authorities indulge them in this. In such a scheme, the Ministry of Justice is transformed into a punitive agency: there is tightening of the legislation, which is contrary to the adopted human rights standards.
This consultancy leads to the deterioration of an already difficult situation, but has no consequences for its implementers.
Thus, it should be noted that Ukrainian authorities, whose task is to ensure and protect citizens’ rights, are in a deep institutional crisis. Many top officials are not aware of the scope of their responsibility, allowing themselves the racist statements, violation of the procedures of laws’ adoption and personnel appointment. Random people with no relevant work experience are appointed to senior positions. In addition, the Government does not execute international commitments of Ukraine.
Legislation on lustration
The controversial law “On the cleansing power” (lustration), adopted in 2014, has caused much debate in the society, since it accused people automatically in committing an offence only by virtue of holding certain positions in a certain period (during the presidency of V.Yanukovych or the period until 1991 ). The law has been passed with apparent violations of the Rules of the Verkhovna Rada of Ukraine being put to the vote for several times. The Venice Commission also has drawn attention to: “… we would like to emphasize that such procedural breaches are at odds with the principle of supremacy of law. They put the legitimacy of the procedure in a negative way, especially as for controversial law aimed at restoring confidence to the state authorities and ensuring open and transparent fulfillment of public power”.
The very nature of the law has caused numerous questions based on the international standards of human rights: presumption of innocence, the opportunity to appeal decisions to a court, individual approach of punishment, etc. As a result, a group of the MPs has submitted the law on the stage of the drafting (draft law “On the cleansing power” (№4359a)) to the European Commission “For Democracy through Law” (the Venice Commission). Having learned the draft law, the Commission stated that a number of its provisions did not comply with the European standards set out mainly under the Resolution of the Parliamentary Assembly of the Council of Europe 1096 (1996), “On Measures to dismantle the heritage of former communist totalitarian systems”, in the conclusions of the Venice Commission on lustration in Albania (CDL-AD (2009) 044), Macedonia (CDL-AD (2012) 028), Georgia (CDL-AD (2013) 013), as well as in the practice of the European Court of Human Rights – decisions on the cases “Gorny v. Poland” dd 8.06.2010, “Turek v. Slovakia” dd 14.02.2006, “Matiek v. Poland” dd 24.04.2007. The provision of the PACE Resolution states that “it is preferable for all former communist countries to complete lustration measures no later than December 31, 1999 … but if the national authorities choose the period longer than recommended in the Guidelines, they must have powerful reasons”. Thus, it is worth noting that Ukrainian Lustration Law is not limited in time, so if desired, lustration can continue indefinitely.
After a number of amendments, the draft law has been adopted by the Verkhovna Rada of Ukraine and its text has been forwarded to the Venice Commission again, this time by the PACE Monitoring Committee. On December 16, 2014, the Commission presented its Interim opinion No.788/2014, in which indicated a number of deviations from European standards in the Law:
- review the list of positions subject to lustration;
- individual determination of guilt of any person subjected to the law;
- delegation of power to conduct the lustration from the Ministry of Justice of Ukraine to specifically created independent commission. At the same time, as noted by the ECHR, in order to make commission independent, the attention should be paid to, inter alia, method of appointment of its members and their term of office, guarantees from any pressure and factors of making visibility of commission’s independence (decisions on the cases “Findlay v. the UK” dd 25.02.97, “Brudnitska and others v. Poland” dd 03.03.2005);
- separation the lustration process from the fight against corruption;
- lustration procedure should strictly comply with the European Convention on Human Rights and Fundamental Freedoms in terms of the “right to a fair trial” (equality of parties, right to be heard, etc.);
- lustration of judges should be considered as a separate process in the framework of the law, and not be part of the general procedure as it does not comply with the Constitution of Ukraine;
- the Supreme Council of Justice of Ukraine should solely decide issues on lustration of judges;
- disclosure of personal information about the people subjected to the Law on cleansing power must be carried out only after the final decision of the relevant court. Lists of people who allegedly covered by the law on lustration, should not be discussed publicly by the time of its completion by any ministers or MPs, or community activists – is the basic protection of business reputation and private life.
During his visit to Kiev in February 2015, the President of the Venice Commission J. Buquicchio, frankly called the law “On the cleansing power” as a “bad law”. The Ukrainian party, led by the Minister of Justice of Ukraine P.Petrenko, made a commitment to improve the law by March 2015. In the Final conclusions regarding the Law of Ukraine “On the cleansing power” (CDL-AD (2015) 012), adopted in June 2015, the Venice Commission noted that progress has been made, but very little. Today both Conclusions remain in force.
In January-February 2015, given such situation, a group of the MPs together with the Supreme Court of Ukraine filed a suit to the Constitutional Court of Ukraine (CCU) with the requirement to recognize a number of provisions of the Law on cleansing power as unconstitutional. It concerns the following provision regarding: 1. lustration criteria; 2. prohibition of compulsory dismissal and holding positions in the public service from 5 to 10 years for being in service during the reign of V.Yanukovych; 3. grounds for dismissal shall be unlawful act, proven by courts’ decision.
Actually, it will correspond to the European standards and recommendations provided in the interim conclusions on the Law by the Venice Commission (December, 16, 2014 № CDL-AD (2014) 044) – “Guilt of a person shall be proved in each individual case. Lustration may not be used for punishment, retribution or revenge. Lustration procedures, despite their political character, should be developed and implemented only by legal means”.
At the same time, people who lost their jobs on the basis of Lustration Law appealed to the administrative courts with a demand to be reinstated to their positions. At the same time, decisions on the cases will be postponed before the Constitutional Court of Ukraine takes judgement. Thus, according to the public information as of today the proceedings of more than 500 cases of former law enforcement officers have been stopped before the Constitutional Court of Ukraine takes the decision on the constitutionality of the law.
Pressure on the Constitutional Court of Ukraine
At the same time, the CCU clearly violates the rules of procedure by delaying the consideration of the case. The examination of the submission by the Supreme Court was started on April 16, 2015. Article 57 of the Law of Ukraine “On the Constitutional Court of Ukraine” stipulates that the timing of the constitutional proceedings shall start from the date of the adoption of a procedural decision on the opening of the constitutional proceedings and shall not exceed three months.
Such violation of the legal limits for case consideration by the CCU was due to pressure by officials of the supreme bodies of state power aiming at slowing down the process of the above-mentioned case. In addition, only 5 meetings were held by the Constitutional Court for more than a year.
Violation of the Constitutional Court of Ukraine the legal limits of the proceedings has happened due to the pressure made by officials of the supreme bodies of state power, the individual MPs and paramilitary units with the purpose of braking the review process of the above-mentioned case and delay the adoption of a lawful decision on the constitutionality of the Law Ukraine “On the cleansing power.”
It is important to emphasize that, according to the requirements of Art. 27, 28 of the Law, the judges are independent in exercising their powers and are subject only to the Constitution of Ukraine, guided by the Act, and other laws of Ukraine shall be inviolable. But despite the above-mentioned provisions of the law, individuals neglect and negate the principles of the Constitutional Court of Ukraine, for the purpose of implementation of undue influence on the decision of the court.
The Chairman of the Constitutional Court of Ukraine on request of the Chairman of the Interfactional Parliamentary Association “Forbidden to Forbid” sent a number of submissions received from public sources, which, in the opinion of the court, are evidence of pressure on judges KSU.
Since the beginning of the hearing of “lustration law” cases in the media from a group of high-ranking state officials and MPs there have been real threats towards judges for the purpose of intimidation and inducement to adopt obviously illegal decisions possible.
Moreover, the judge of the Constitutional Court of Ukraine (responsible for consideration of the lustration submission) is under the pressure through criminal proceedings initiated at the request of the person who is under the close scrutiny of law enforcement agencies.
Numerous facts of selective application of the Law of Ukraine “On the cleansing power”, when persons subject to lustration hold senior positions, were resulted in a highly publicized situation. At the same time, there is a mass dismissal of public officials whose actions have not contradicted the legislation being in force in the period from 2010 to 2014, thereby violating the constitutional principle of the irreversibility of the laws in time (Art. 58 of the Constitution of Ukraine) and the right to work (Art. 43 of the Constitution of Ukraine).
Disregarding the recommendations of the Venice Commission
Dozen of draft laws on amendments to the Law “On the cleansing power” have been registered in the Verkhovna Rada. However, none of them does not address the issues raised by the subjects of constitutional submissions and none of them takes into account the remarks of the Venice Commission. The Commission has expressed its opinion on the law more than tough. It openly stated about the necessity to stop the force of law before its conformity with the standards of the Council of Europe. In March 2016, the Head of the Public Relations Department of the Venice Commission Tatiana Myshelova reminded once again that “the Venice Commission issued a series of recommendations of improving these amendments. Since then, the Commission was not informed on any developments of the situation”.
In October 2016 during the regular session of the Venice Commission, the agency repeated its claims re lustration law, stating on the apparent lack of progress from the Ukrainian side: “First of all, we strongly recommended changing the law so that a guilt of each person needs to be proved in every individual case. I would not call it the guilt, but rather a threat to the state. We also recommended delegating the lustration to body separate from the Ministry of Justice that would deal exclusively with lustration”, said the Deputy Secretary of the Venice Commission Ms. Simona Granata-Menghini. “You know that we have made our conclusions about the Lustration Law in Ukraine and recommendations how to imrove it. Nevertheless, we have not seen anything of the promised amendments so far. Ukrainian delegates promised to present amendments within a month, but a year passed. –Are they still there? – Yes. Exactly. We have recommended to improve the law and send us a new version, but we have what we have –we have not seen anything so far”.
It is important to emphasize that the European Court of Human Rights adopted and already began considering more than a dozen claims of Ukrainians to the state of Ukraine because of the application to them of the lustration law. Ukraine, as a state, have suffered significant reputational and financial damage to Ukraine. It is possible that the Court recognizes that Ukraine had violated the applicants’ right to challenge his dismissal under the law on lustration, then each of them would receive respective payment, and in some cases – the restoration of a previous job.
Thus, as stated in the opinion of the Venice Commission, current situation on lustration is caused by the fact that, as a rule, in drafting laws as technical assistance, representatives of the Ukrainian authorities attract the lawyers without any relevant competence or experience in the European practice, and who are not able to implement effectively the European standards. Consequently, the position of the Ukrainian authorities is more than a delicate, and it is proved to be no more than logical continuation of juggling by European integration slogans about the values of democracy without any desire and political will to apply them in practice.
President of the Venice Commission Gianni Buquicchio.
Observance of the right to freedom of religion
Two draft laws have been submitted to the consideration of the Verkhovna Rada of Ukraine: No. 4128 dd 23.02.2016 “On Amendments to the Law of Ukraine “On Freedom of Conscience and Religious Organizations” (on amendment of subordination of religious communities), as well as No.4511 dd 22.04.2016 “On special status of religious organizations, whose senior centers are located in the state recognized by the Verkhovna Rada as an aggressor country”.
Both drafts are inherently contradict Art. 35 of the Constitution – namely, the constitutional rule of direct action on freedom of conscience and of religion and separation of church and religious organizations from the state, which has the exception only regarding the protection of civil order, health or morals or the rights and freedoms of others.
The purpose of these draft laws – the creation of obstacles to the largest religious organizations of Ukraine – Ukrainian Orthodox Church (UOC), civil position of which the current government does not like.
Draft law No. 4128 aims to legalize raider attacks on parishes of the UOC, since the provision, which proposed to be added in Art.8 of the Law on freedom of conscience, envisages the possibility of changing the religious affiliation of the community by changing the Charter through the vote of “a simple majority of those present at the meeting of citizens who belong to a religious community”. At the same time, to determine the affiliation of a person to the community can be achieved “by self-identification with the religious community and by the participation in the religious life of a particular community, as evidence” All these standards are very subjective, and it is unacceptable in a legislative act.
Moreover, the provision is formulated in such a way that the decision at the meeting can be made not only by direct members of the community, but other persons, not belonging to it, but attending the meeting. According to information that has been repeatedly mentioned in the media, there will be provided he support of “patriotic activists – battle groups, which are a paramilitary continuation of political parties”.
As noted in this regard Archpriest Vitaliy Gerlinskiy, the Secretary of Rivne Diocese of the UOC, the residents of certain areas, who have never attended a church, hold meetings with the requirement to take churches in religious communities of the UOC and give them to the UOC-KP.
Legalization of church raiding
According to Irpen Bishop Clement, the Chairman of the Information and Education Department of the UOC, the proposed mechanism by the draft bill No.4128 will legalize church raiding. According to his words, near 25 criminal cases in Ternopil, Volyn and Rivne regions on the violation of the rights of religious persons have been launched, which the MPs tries to legalize by adoption of the draft law.
The bright example of implementing the scenario of church raiding we can observe in the Rivne region. Thus, throughout 2016 the attempts to seize the property of the Ukrainian Orthodox Church from the side of “Kiev Patriarchate” took place systematically and purposefully without any reason in the village of Duliby, Goshchansky district. Moreover, physical force was used.
It is important to emphasize that local authorities took active part in the process. For example, village councils arbitrarily decide to hold in the churches of the Ukrainian Orthodox Church successive worship together with the “Kiev Patriarchate”. At the same time, full legal rights to the property and the building of the church belongs exclusively to the UOC. Moreover, the UOC has won all court cases concerning the right to conduct worship in their own churches, but ignoring court orders, in November 2016 the regional governor has issued an order on alternate worship.
Furthermore, trying to define person affiliation to a particular religious community, the state interferes in the sphere of competence of such a community, so that violating the European standards enshrined in the decisions of the European Court of Human Rights (ECHR), under which the determination of a person affiliation to religious organization is not state’s jurisdiction but of the organization itself, (case of Kokkinakis v. Greece 05/25/1993, Hasan and Chaush v. Bulgaria 26/10/2000). The ECHR emphasized that in a democratic society, the state should not take measures to hold religious communities under a unified leadership. Pluralism shall not be abolished and tolerance between competing groups are to be ensured. The Court stressed that the support of one of the leaders in the process of community separation or the attempts to force the community to submit one of the leaders are characterized as violation of religious freedom (case of Supreme Holy Council of the Muslim Community v. Bulgaria 16/03/2005).
In turn, the draft law No.4511 interferes into the sphere of functioning of religious organizations and establishes the discrimination between them. Fist of all, it is discriminating to divide the existing and registered religious organizations of Ukraine into two groups based on their canonical affiliation: to “religious organizations conducting their activities in Ukraine and at the same time comply in canonical and organizational issues to religious centers, which are located in countries that are recognized by the Verkhovna Rada of Ukraine as the aggressor state” and all others.
This rule violates the fundamental provisions of the profile of the Law of Ukraine “On Freedom of Conscience and Religious Organizations” – “The state … shall respect the traditions and internal regulations of religious organizations if they do not contradict the current legislation; … It does not interfere with the ongoing activities within the framework of the law of religious organizations… All religions, confessions and religious organizations are equal before the law. The establishment of any advantages or restrictions of one religion, confession or religious organizations concerning the others is not allowed” (Art. 5).
It is evident that its initiators will probably direct the draft law No. 4511 against the UOC. However, this attempt is absolutely illegal, because the UOC makes its decisions entirely independently, without influence from the outside, with its own leading center in Kiev.
A number of separate provisions of the draft law No. 4511 also contain contradictory or straight unlawful norms. Thus, Art. 5 of the draft law stipulates that “the appointment of the central and regional management of religious organizations, which are determined by the second Article of the law, take place after approval of the relevant candidates from religious organizations with a central executive body that implements the state policy in the sphere of religion”.
The provision is illegal for two reasons:
- The state approve the management of religious organization, which contradicts the constitutional provisions on the separation of church and state, envisaging its participation in the appointment of the management of religious organization;
- It is said about the appointment of central and regional management of the organization, but the Law of Ukraine “On freedom of conscience and religious organizations” does not stipulate such variety of religious organizations.
In addition, the UOC has not a status of legal person in general and, respectively, a “special status” will need to be given to each parish individually. Moreover, as pointed out by the ECHR, the autonomy of religious communities is part of pluralism in a democratic society and, thus, directly protected under Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (decision of the European Court of Human Rights in the case of Bessarabian Metropolitanate and Others v. Moldova (N 45701/99 of 13.12.2001).
Art. 7 of the draft law operates with the term “cooperation with representatives militarno-terrorist groups” as a condition for the termination of the activities of religious organizations. However, there is no definition of the term either in Ukrainian legislation, or in international law. Therefore, free interpretation is possible, which leads to legal voluntarism and the possibility of closing inconvenient religious organization by the will of officials using the imperfection of the draft law.
Global analysis of the violations of the rights of the UOC believers in Western Ukraine has been collected in the 63-pages report by Ukrainian non-governmental organization “Public Advocacy” (NGO Public Advocacy) on violations of the rights and freedoms of religious organizations in the Western Ukraine. On February 8, 2016 this report was handed over to the Department of Tolerance and Non-Discrimination Office for Democratic Institutions and Human Rights (ODIHR). Materials have also been forwarded through TANDIS system to be included in the annual reports of the OSCE and the ODIHR on human rights violations. The package of documents have been handed over to the international organizations conducting human rights monitoring.
The report contains an overview of the statements containing calls for hatred from the clergy and adherents of some confessions. These facts are confirmed by photo-, video- evidences and eyewitness testimony. As indicated in the reports, a significant part of the offenses is committed by persons who are clerics or activists of “Kiev Patriarchate”.
Monitoring of human rights and religious freedom was carried out in Ternopil, Rivne, Volyn, Lviv, Ivano-Frankivsk, Kyiv regions and in the Carpathian region in the period of 2014-2015. “The rights violations of the religious organizations of the Ukrainian Orthodox Church have been identified in all these regions”, the document says. In total, 44 conflict situations have been recorded. At the same time, as noted in the report, the access to the church is closed for the UOC believers (or church has been confiscated from the UOC community), or clashes between parishioners and the supporters of the Kiev Patriarchate are still going on. “The rhetoric of hate is widely used in the capture of the UOC religious buildings, has the nature of propaganda and aimed at destabilizing the socio-political situation in Ukraine”, concluded the lawyers and observers of “Public Advocacy”.
In addition, the active attempts of Ukrainian government to organize a “unified local church” do not find a support from the population of Ukraine. Thus, according to the Head of “Ukrainian Sociology Service”, Head of Department of the Institute of Sociology of NAS of Ukraine Alexander Vishnyak, within the public opinion poll “The religious life of Ukraine (September 2016)” the following results were received: Ukraine needs a unified Local Orthodox Church, but the believers and the clergy should deal with its establishment without the intervention of the authorities and politicians (36% agree; 19% against, 46% undecided) and Unified Local Orthodox Church is not needed because it will restrict the rights of citizens to choose confessions (32% agree; 24% against, 44% undecided).
Thus, it should be noted that the draft law No.4128 dd 23.02.2016 “On Amendments to the Law of Ukraine “On Freedom of Conscience and Religious Organizations” (amendments of subordination by religious communities), as well as draft law No.4511 dd 22.04.2016 – introduce the discrimination against religious organizations, violate constitutional norms, provided with evaluative and subjective approach and, in case of their adoption, could lead to a clear violation of the rights of believers and religious organizations, and more specifically – the UOC. Therefore, if adopted, we can expect appeals on their application to the ECHR on the basis of violation of Art. 9 and 11 of the European Convention on Human Rights (freedom of thought, conscience and religion, as well as the right to freedom of assembly and association) and Article. 14 – the prohibition of discrimination.
Having analyzed the facts and eyewitness testimony, it should be concluded that the hate rhetoric is widely used in the capture of the UOC religious buildings, has the nature of propaganda and could become a factor of destabilization of political situation in Ukraine.
Restrictions on the rights of Ukrainian citizens to freedom of information
In Ukraine, starting from February 2014 there is a steady process of limiting freedom of access to information reflecting different points of view. The beginning of this process has begun from prohibition of broadcasting Russian state channels in Ukraine, “promoting a policy of the aggressor state”. At present, it has been transformed into almost complete ban on broadcasting of Russian TV channels, including channels broadcasting exclusively cartoons and children’s programs, melodrama, soap operas and the like, that is those channels which is difficult to blame in aggression propaganda and the thing is likely in place of production of TV content.
The next step was the adoption in February 2015 the Law of Ukraine “On amendments of some Laws of Ukraine on the protection of information TV-, radio- space of Ukraine”. Key changes under the Law have been included to the Law of Ukraine “On Cinematography” and concerned the ban of Russian film products, films: “containing the popularization of bodies of the aggressor state, the Soviet bodies of state security … production after August 1, 1991” and “Prohibition of broadcasting of films produced by natural and legal persons of the aggressor state, not containing the promotion or propaganda, contemplated by the former proposal of bodies and actions applies to films produced after 1 January 2014” (Art. 15). In addition, in April 2016 additional amendments were made in the Law of Ukraine “On Cinematography” that expanded the ban on movies, which premiere demonstration was held also after 1 January, 2014.
The adoption of the law was made with procedural violations of the Rules of Procedure of the Verkhovna Rada: “This decision was held with gross violations of the requirements of the Rules of Procedure of the Verkhovna Rada of Ukraine, in particular, Articles 117, 120 and 121 and, therefore, it can not be regarded as accepted in accordance with the law and is subject to cancellation according to the procedure stipulated by Rules of Procedure… for the Amendment No.28 was voted four times”.
As for the essence of the law, as noted by the President of the Association of media-lawyers T. Kotyuzhinskaya, the adoption of this law said about the attempt to impose censorship. “There is a search for how to carry out censorship. This is a limitation of freedom, restriction of economic activity”. In an open letter of the “Media Group “Ukraine””, it is expressed a deep concern about the provisions contained in the law, that “contradict both international law and the generally accepted European standards. They jeopardize the independence of the media. As our colleagues in media market, we are confident that together with these draft laws, the question of existence of freedom of speech in Ukraine as such, and the rule of law will be submitted on agenda of the Verkhovna Rada”. It should be noted that the violations concern not only Art.34 of the Constitution (freedom of thought and expression, free dissemination of information), Art.15 (prohibition of censorship, strengthening of political, economic and ideological diversity), but also the rules of international legal obligations of Ukraine in the framework of the European Convention on Human Rights – “Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and share information and ideas without interference by public authorities and regardless of frontiers” (Art. 10). As noted in this connection the bodies of the Council of Europe “member states shall not restrict their citizens in access to information during crisis, and go beyond the limitations provided for in Article 10 of the European Convention on Human Rights and the clarifications of the European Court of Human Rights” (para. 17 of the Recommendations of the Committee of Ministers of the Council of Europe “On the protection of freedom of expression and information in times of crisis”). In addition, it is noted that “state bodies, media organizations, national or international governmental and non-governmental organizations should endeavor to ensure the protection of freedom of expression and information through dialogue and cooperation in times of crisis” (para. 27 of the Recommendations of the Committee of Ministers of the Council of Europe “On the protection of freedom of expression and information in times of crisis”).
In Europe, according to a special act – the European Convention on Transfrontier Television (1989), the general principle is established that “the Parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and guarantee freedom of reception and do not to restrict the retransmission of programs on its territory that comply with the provisions of this Convention” (Art. 4). Ukraine is a party to the document, as well as the most of the European countries, while Russia has not ratified it, which gives local authorities room to maneuver, so that discriminating Russian broadcaster and limiting the right of its own citizens to receive a variety of information. If one of the Parties to the Convention has a claim on the programs’ content of counterparty, it can use the convention mechanisms: the right to a temporary suspension of retransmission, conciliation procedures, arbitrage (Art. 24-26). Consequently, vicious Soviet practice of the prohibition to show films with “wrong” actors who had emigrated to the West (S. Kramarov, O. Vidov and others), adopted today by the Ukrainian authorities, is not supported by the European regulations.
The important aspect is the indiscriminate nature of the prohibition of Russian film production. Movies with the propaganda of security forces, and completely unrelated to it melodrama and children’s cartoons have been subjected to the ban. There is a violation of the generally accepted European standards – the prohibition of indiscriminate measures.
Licensing of book products
The third stage of such activity has become the draft law prepared 08.09.2016 by the Vice Prime Minister V.Kirilenko on the licensing of books imported from Russia. The fact that in the scientific community the wife of Vice Prime Minister E. Kirilenko is accused of plagiarism for her textbook “Culture and Science” with similar Russian book makes the situation particular comic.
First of all, the introduction of licensing book products can be considered as a type censorship, forbidden by Art. 15 of the Constitution of Ukraine, as well as ungrounded restriction of freedom of expression, enshrined by Art. 34 of the Constitution of Ukraine, as a violation of Art. 10 of the Constitution of Ukraine envisaging free development, use and protection of Russian language and promote study of languages of international communication, one of which, Russian is an official UN language (Resolution 2 (I) of the UN General Assembly dd February 1, 1946).
In addition, the norms of a number of international legal instruments, to which Ukraine is a party is party, have been violated: the European Convention on Human Rights (Art. 10 the right to freedom of expression), the International Covenant on Civil and Political Rights (Art. 19 para.2 the right to freedom of expression opinions), the European Charter for regional or minority languages (1992) (Art. 7 “The parties build their policies, legislation and practice on the basis of the objectives and principles: … d) promotion of the use of regional or minority languages, both orally and in writing, in public and private life and / or encouragement of the use”).
Moreover, the practice of the European Court of Human Rights has been also violated, since “the expert commission of the authorized agency”, stipulated for the creation, may consider the entire “publishing products originating and/or imported from the territory of the aggressor state” on the subject of its licensing providing the possibility for the import and distribution on the territory of Ukraine. At the same time, the freedom of artistic creativity and the free flow of works of art, which can be limited only in non-democratic societies (as an example, Bulgakov’s novel “The White Guard” is likely to be subject of the ban under formal features listed in the draft law) is obviously violated: “In his works the artist expresses not only his personal opinion but also the opinion of the world in which he lives. In this respect, art not only helps to shape public opinion, but also it is an expression, and therefore, can put the audience face to face with the most topical issues of the day” (case the Institute of Otto-Preminger v. Austria, 1994). In addition, the ECHR noted that “Freedom of expression is one of the essential foundations of [a democratic] society, one of the basic conditions for the progress and development of each individual” (case Handyside v. the United Kingdom, 1976).
Schemes of licensing and mandatory state registration of imported publishing products are likely to create obstacles rather than promote freedom of speech and the right to receive and disseminate information. They also do not comply with the allowed restrictions on freedom of expression stipulated by international law: they should be provided by law and be necessary in a democratic society for the respect for human rights or reputations of others, protection of national security, public order, health or morality of population (Article 22, para.3 of the Pact on civil and political rights).
Furthermore, the fact of licensing the products based on their origin in a certain state, violates the commitments undertaken 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 in Articles XX-XXI).
The draft law was voted on and supported by the Verkhovna Rada of Ukraine on December 8, 2016.
A clear indication of a purposeful state policy to curtail human rights in the field of access to information is the rating “The enemies of the press-2016”. For example, 7 of the 10 people present in the list are members of the executive and legislative authorities: MPs, governors, officials, police officers. The sharp and unreasonable attitude towards the media ceases to conduct the general line of power that can not be justified by any excuse.
Within the framework monitoring of Internet freedom held by the international human rights organization Freedom House, Ukraine dropped one position and took 38 place in internet freedom rating. Thus, the level of internet freedom in 2016 remains in Ukraine as “partly free”. The organization notes that social networks and information applications in Ukraine are not blocked, however, there are some cases of access restriction to information and arrests of bloggers and activists. Freedom House pointed out that officials were increasingly trying to affect social networks with attempts to fight anti-Ukrainian rhetoric, arrest users for separatist and extremist statements. It was also noted that security of thousands of journalists was threatened due to the information leak about their accreditation in Donbas. Obviously, this is about the distribution of personal data by the website “Myrotvorets”.
The actions of the mayor Glukhov (Sumy region) Michel Tereshchenko construct an egregious case of total disregard of the rights of Ukrainians to freedom of information. Firstly, at the very beginning of his term, the newly elected mayor of Glukhov himself pushed out of the meeting at City Hall the chief editor of the local newspaper “Nedelya” Oksana Kovalenko. According to the journalist, Tereshchenko, saying, “And you should not be here!” led her from the hall. Other journalists who were in the hall, were allowed to remain, demonstrating the selective attitude towards the media.
Secondly, Glukhov mayor tried to hold the raider seizure of communal edition of the newspaper “Narodnaya Tribuna”. Moreover, in the raider attacks directly involved himself Michel Tereshchenko, as recorded on video, which used physical force against the guard room in which there is a version of the “Narodnaya Tribuna.” On the fact of injury to the guard by the mayor Glukhov was a criminal case, which is the head of the city is trying to “pull on the brakes.”
The third point, which is worth mentioning is a permanent declaration of journalists Glukhov that against them criminal proceedings. In this city guide suggests that this development is directly related to the professional activities of media workers.
Special mention deserves the situation surrounding public sexual harassment by one of the assistants Michel Tereshchenko to a young female journalist. Moreover, in order to avoid liability city official wrote a statement to the police because of his alleged beatings. The situation is being investigated by law enforcement agencies.
This trend, which is completely ignored, and sometimes even supported by the central government.
Thus, as we can see the Ukrainian government is trying to restrict the right of its citizens to free access to information from various sources. In the framework of these actions, it violates norms of the Constitution and laws of Ukraine, as well as its international obligations. Such activity can also be characterized as collusion aimed at cleansing the entire cultural and information space of Ukraine from anything related to Russia or Russian language (TV content, books), despite centuries-old relationship between the people and the existing personal and family ties.
Violation the rights of journalists to profession
In May 2016, there were two landmark events violating the rights of journalists. First, on May 10 and on May 20, the website “Myrotvorets”, affiliated with the MP A. Gerashchenko and Deputy Minister of occupied territories G.Tukoy, unveiled a list of journalists, mainly foreign ones, who are accredited on the temporary occupied territories of Donbass. Then, on May 12, 2016, the decision was made by Ivano-Frankivsk Court regarding “Kotsaby case”, where the journalist was sentenced to 3,5 years of imprisonment.
In the first case, the very existence of the website spreading personal information regarding persons, who were determined by its owners as “terrorists-separatists”, is considered to be illegal, since such information shall not be disclosed and is protected under the Law of Ukraine “On Personal Data” and the Constitution of Ukraine (Art.32) in order to secure individuals from the collection and dissemination of confidential information. Moreover, such actions are considered to be an obstacle to legitimate professional activities of journalists in terms of Art. 171 of the Criminal Code of Ukraine. However, the authorities of Ukraine turned a blind eye to its activity before the above-mentioned events, even though earlier this particular website was accused of inciting the murder of Ukrainian journalist and politician O.Buzina, which happened a short time after the publication of personal data on the website “Myrotvorets”.
Moreover, the publication of personal data of journalists covering the military conflict is not only a violation under Ukrainian legislation, but also under international law, namely, the rules of Art. 4A (4) of the Geneva Convention III (1949) and Art. 79 of Additional Protocol I (1977) protecting the rights of journalists. The Head of the EU delegation to Ukraine J.Tombinski has pointed out to the fact that the event “could have very negative consequences for Ukraine”. Only after that, the Ukrainian government has shown some initiative, and the prosecutor’s office and the police have opened pre-trial investigation, even though the activity the website “Myrotvorets” continued.
Imprisonment of Ruslan Kotsaba
As for the “Kotsaba case”, this is Ukrainian journalist who due to his anti-government video on the Internet was accused of treason and undermining the defense capacity of the AFU. The journalist was in detention center during the year, and the prosecutor’s office demanded 15 years of imprisonment as a punishment for him.
As a result of these actions of the Ukrainian authorities, Amnesty International called Ruslan Kotsaba a prisoner of conscience. The Head of Subcommittee on Human Rights of the Verkhovna Rada of Ukraine V.Rabinovich called the detention and the attempt to convict R. Kotsaba for “betrayal of Motherland” as the humiliation of democratic right of journalists to express their thoughts openly. 34 MPs of the European Parliament of 5 factions and 17 EU member states signed an open letter calling for the “immediate and unconditional release of the Ukrainian journalist Ruslan Kotsaba”.
Furthermore, during the process there was no evidence of Kotsaba’s guilt – so that the Ombudsman V. Lutkovskaya released the information that during interrogation by the prosecution, witnesses gave testimony of the same type, mostly it had emotional character – they were sharing their emotions, how much they were impressed by the materials published by Kotsaba. In this case, obvious analogy with the actions of the USSR against the dissident journalist V. Chernovol arises.
After the verdict the lawyer of R.Kotsaba, senior partner of law firm “Kravets & Partners” R. Kravets noted that “Kotsaba –journalist, who set out his point of view, and I do not see any elements of a criminal offense. It appeared that he was judged for dissidence in Ukraine. He did not commit any criminal offense. Today the decision of Shevchenkivsky District Court of Kiev was announced, that neither the Interior Affairs Ministry, nor the AP do not recognize Russia’s aggression in Ukraine. With the same success, and they can be brought to criminal responsibility for the same articles that imputed to Ruslan Kotsaba”.
However, the prosecutor’s office did not stop the harassment of journalist. In November 2016, the cassation appeal against court’s decision was filed, and now it is under consideration
Attempts of pressure on influential mass media
Special mention deserves the situation around the well-known Ukrainian TV presenter of political talk show Savik Shuster. At the end of April 2016, the journalist’s permit to work in Ukraine was annulled. Despite the fact that the conflict situation ran its course thanks to a wave of public indignation and statements of the President and the Prime Minister’s in support for S.Schuster, this situation should be regarded only as a manifestation of the hard pressure on the representatives of the socio-political media. However, problems for Schuster has not ended yet, and as a result, his channel 3s.tv will have to terminate its activities from January 1, 2017. The channel’s statement has informed about the pressure on journalists by the authorities: “Our attempt to work in terms of normal business rules under these circumstances has failed: we have received criminal cases and tax penalties, while Savik have been taken away a work permit. It will not disappear and after closing 3s.tv channel: we are to face a judicial red tape, and now it will be almost no opportunity to tell about this community without TV channel”.
Among other things, it is also important to emphasize that a significant influence in the field of information activities in Ukraine has National Council of Ukraine on Television and Radio Broadcasting, most members of which are affiliated with the major political forces and the government, in particular, with the President. Considering such a significant impact level of state regulator, it is difficult to call the solutions objective and balanced.
In the second half of 2016, there were several events related to the violation of journalists’ rights. Firstly, on July 20, 2016 in the center of Kiev a famous journalist, a citizen of Russia, P. Sheremet, was killed. Furthermore, shortly before the murder the journalist filed a statement to the police about being followed.
Secondly, on September 4, 2016, the attack on the office of the “National Information Systems” in Kiev, producing news for the TV channel “Inter” was committed blocking the work of “Inter” channel itself (February 25-26, 2016, September 5-6, 2016). The results of its own investigation of the events in September 2016 around the TV channel have been published by the faction “Opposition bloc” – “The moderators of the terrorist attacks of September 4 and blocking “Inter” channel on September 5-6 are the management and members of the party “People’s Front” i.e. Arseniy Yatsenyuk, Arsen Avakov and Alexander Turchinov, performers – close assistants to the Minister of Internal Affairs. This is Kiva, fighters of civilian corps “Azov”, “Saint Mary”, part of the radicals of Dmitry Korchinskiy and Dnyepr criminal authority Vadim Mizera, and the head of “Kievsportclub” Alexey Kopishinsky”. Great concern about these events have been expressed by the OSCE.
According to another insider information distributed in the deputy corps, in issues of blocking “Inter” took part the former Head of the SSU Valeriy Khoroshkovsky by bringing the unidentified paramilitary fighters together with the soldiers of civilian corps “Azov”and criminal groups. The purpose of his actions was the pressure to TV channel beneficiaries Levochkin and Firtash for so-called “unpaid shares”.
In these events, Ukrainian authorities has demonstrated the non-fulfilment of the constitutional obligations regarding the protection of personal rights: the right to life (Art. 27 of the Constitution of Ukraine.) and security (Art. 3 of the Constitution of Ukraine.). Taking into account the professional journalistic activities, we can observe the violation of Art. 34 of the Constitution – the right to freedom of thought, speech and free views and beliefs. Furthermore, journalists are entitled to special protection. Thus, Article 171 of the Criminal Code of Ukraine envisages the responsibility for deliberate obstruction of the lawful professional activities of journalists. Such acts shall be punished with a fine up to 15 tax-free minimum incomes, arrest for up to 6 months, or restraint of liberty for up to 3 years. Persecution of journalists for the performance of professional duties, for criticism, carried out by an official or a group of individuals acting by prior conspiracy, is punishable by a fine up to 200 tax-free minimum incomes, or restraint of liberty for up to 5 years, or deprivation of the right to hold certain positions for up to 3 years. In addition, Art. 17 of the Law of Ukraine “On state support of mass media and social protection of journalists” establishes responsibility for the infringement on the life and health of journalists, other actions against him and the journalists’ responsibility for moral (non-property) harm. The responsibility for the commission of crimes against journalists in connection with the performance of his professional duties, or obstructing his performance is equal to responsibility for committing the same acts against law enforcement agency employee.
Moreover, there is failure to perform their duties by the police under the law “On the national police” (2015).
At the same time, in the case of “Inter” there are obviously the components of crime under Art. 296 (hooliganism), Art. 258 (terrorism), Art. 171 (obstruction of the legitimate professional activity of journalists) of the Criminal Code of Ukraine, subject to the authority of the national police.
The pressure on the media through fines
The adopted amendments to the Law of Ukraine “On Television and Radio”  by the Verkhovna Rada on November 1, 2016 also infringe the freedom of speech and the rights of journalists in Ukraine. This law stipulates for strengthening the powers of National Council of Ukraine on Television and Radio Broadcasting, in particular, it concerns its right to fine television and radio stations for 25% of the license fee, regardless whether they have been issued a prior notice or not. The draft law is a clear attack on freedom of expression and its limitation envisaged by the Constitution of Ukraine. Moreover, it contradicts the jurisprudence of the European Court of Human Rights (ECHR). Thus, in Thorgeirson case, the Court stated that although the articles written by a journalist contained very harsh expressions, however, it can not be considered as excessive, taking into considering their objective, namely, the call for police reform (Thorgeirson v. Iceland, 1992). The draft law is a clear attack on freedom of expression envisaged in the Constitution of Ukraine and its limitation. Moreover, and acts contradicted with the jurisprudence of the European Court of Human Rights (ECHR). So, in Thorgeirson Court stated that although the article written by a journalist, and contained very harsh expressions, however, it can not be considered excessive, taking into considering their objective, namely, the call for police reform (Thorgeirson against Iceland, 1992). In Jersild case, although the interview of the journalist contained racist comments, it was referred to the serious news program, the aim of which was to inform the audience about the serious events taking place within the country and abroad (Jersild v. Denmark, 1994). In Dalban case, a journalist, who has accused politician in corruption and squandering of public funds, the Court has stated that “the notion of “journalistic freedom” also allows to use some degree of exaggeration and even provocativeness” (Dalban v. Romania, 1999). Moreover, even with regard to the facts, the Court found acceptable justification, resulting in an argument of good faith, thereby providing the media with the “right to make mistakes” (Dalban v. Romania, 1999). The Ukrainian lawmaker is trying to deprive journalists of the right.
Within the new session of the Verkhovna Rada of Ukraine, which began in September 2016 another draft law invading the activities of journalists was proposed. Thus, on September 6, 2016 the MP I.Lapin proposed Draft law No.5086 on the prohibition of propaganda of criminal organizations self-proclaimed on the territory of Donetsk and Luhansk regions. In the framework of the draft law is proposed to forbid the media to use in their public information activities the names of the self-proclaimed Donetsk and Luhansk People’s Republics (Art. 3). A violation of the provisions of the draft law is the condition for termination the activity of mass media and withdrawal its license (Art. 5). These provisions are, on the one hand, brutal example of censorship and interference in editorial media’s policy by the public authorities, thereby violating the rules 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 for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the context of freedom of speech. In addition, such an unambiguous perception of mentioning the names of “DPR”/ “LPR”, as well as their “propaganda” is a clear exaggeration and can be interpreted widely by controlling bodies.
Thus, we can state that considering the rights of journalists to freedom of profession, there is a significant decrease of the level of existing standards. Ukrainian journalists receive criminal liability for the expression of their civic position, they are killed, the personal data of foreign journalists are openly published, work permit of foreign journalists is revoked. The operation of TV channels are blocked. It directly violates the rights of journalists as individuals who perform the function of impartial informing society about the situation in the country and the very right to freedom of expression, different from the views of the authorities.
Cases of violations of citizens’ rights to freedom of expression by paramilitary formations
The existence of militarized and paramilitary formations like “Azov”, its civilian corps, the OUN, Right sector, etc., on the one hand, funded by the oligarchs, on the other hand – partly incorporated into the power structure of the state (“Azov” is part of the National Guard of Ukraine) raises a number of questions.
The ideology professed by their management and by themselves is the mixture of right nationalism, racism, xenophobia, anti-Semitism and outright fascism. All that statements of “Azov” founder, the leader of the Social-National Assembly and now the MP of Ukraine A. Biletskiy about the historical mission of the Ukrainian nation – “to lead a crusade of white race against the subhumans headed by Semites”.
Although “Azov” leadership strongly denies such accusations, but in March 2015, the press secretary of “Azov” Alexander Dyachenko stated that from 10% to 20% of group’s members are the Nazis. Statement about fascist and neo-Nazi views of regiment’s members was made in the US Congress, on June 10, 2015 on the initiative of Congressmen Conyers D. and T.Yoho. As a result, the United States has refused to grant Ukraine MANPADS and training assistance to the regiment. The symbol itself used at “Azov’s” chevrons is an image of Wolfsangel (“wolf’s hook”), used in Nazi Germany, in particular in the logo of the 2nd tank Division, the SS “Das Reich” and used in the modern neo-Nazism.
Accordingly, the action of these “patriots of Ukraine” meets their ideology. They are absolutely alien to any democratic European values, whether it is freedom of speech, freedom of assembly, tolerance, demonstrating this during participation in crackdown of LGBT community (Kiev, Lviv), or while beating their ideological and political opponents. The latest of their mass actions (2 thousand people) were a campaign in Kiev with blocking streets on May 20 and October 14, 2016.
Organized actions of these groups with full connivance of the authorities, some of which legalized by the state and even provided with weapons from it – resemble the situation in Weimar Germany late 1920s and beginning of 1930s, when the state authorities using Nazi Hitler’s Brownshirts from CA tried to stop strike movement, as a result, brought Hitler’s regime to the power. The position is proved by the words of Biletskiy on the march on May 20, 2016: “there is no sense to talk with our politicians. They know only the language of fear. If they see us, they know: in the case of attempts to carry out such treacherous elections, we will throw off the Parliament and the AP rule and find new members”.
On September 7, 2016, the officers of the Ukrainian Security Service conducted a search of Sergei Bobyrev’s apartment in Sumy. In the procedure, the representatives of paramilitary forces the Right sector and others were involved (they blocked entrance, were at the same apartment with the permission of the SSU). The situation violates a number of norms of Ukrainian legislation. Firstly, the existence of paramilitary groups such as Right sector, being a part of legitimate armed forces in Ukraine 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 the court order have the right to participate in the search. If a search is carried out by persons not mentioned in the court’s decision, then such persons should confirm their authority – to submit relevant instructions from the investigator or the prosecutor of delegating to take part in the investigation of the criminal proceedings to several investigators, or other appropriate procedural document. Moreover, the very presence of persons not authorized to carry out searches in the territory of another’s private property without owner’s consent violates the constitutional right to the protection of private property (Art. 41 of the Constitution of Ukraine).
Paramilitary units in the political struggle
In memory of winter 2014, various “activists” continue to attack and seize the state bodies. The last example was the capture of the Regional State Administration of Cherkassy region on December 1, 2016. Authorities continue to show their complete helplessness, which transformed into the connivance of attackers.
They block the MPs’ activity of local and regional councils beyond the control of the independent parties and the electoral process itself. For example, on October 28, 2016 there was an attack on the city council member of the opposition bloc A. Eremitsa, the MP of the opposition bloc N.Balan was beaten by people in masks and thrown in the trash in Ananevskij district of Odessa region, on December 2, 2016 a group of unidentified persons attacked the electoral commission in Slavyansk during which the head and the secretary of the election commission were beaten, and their office was destroyed.
According to the results of recent elections, their activities are supported no more than 2% of the population, but their involvement, including in the political struggle, yet gives the advantage of one of the party. At the same time, this flirtation with the extreme right and racist ideology as a result can lead to a bad end of their leaders, the state and society, which was taken hostage, and the lack of adequate response from the state only aggravates the situation.
The political forces’ attempts continue, they try to control military formations, which are continuation of the political parties and social movements. It certainly threatens Ukraine, its stability and territorial integrity. At the same time, the Ukrainian government does not take adequate steps to control the situation. In fact, in some areas, in ATO zone, as well as locally in the territory of placement of combatants’ training bases of volunteer battalions, a parallel system of power and military control is building up, capable to carry out the function of the state and military administration during the crisis management situations.
The problems in the justice system
In June 2016, the Constitution of Ukraine in “Justice” section has been amended, the order of appointment and removal of judges and part of justice system itself have been changed. In accordance with these changes, the Verkhovna Rada of Ukraine lost the right to appoint judges for term of life from September 30, 2016, this right is transferred to the Supreme Council of Justice. In this regard, the speaker of the Verkhovna Rada A. Parubiy on September 29, 2016 held an extraordinary session of the VRU in which on the basis of “breach of oath” has set the task to dismiss 32 judges, 19 of which are suspected in connection with the adoption of illegal decisions against Euromaidan participants in 2014. The voting on many of the judges has been performed several times (in some cases – up to 15 times) , on the basis of voluntaristic decisions of the speaker and in violation of the Verkhovna Rada regulations. As a result of the “revote” procedure, the desired outcome was achieved and 29 judges were dismissed. In this case, on the part of the Speaker of the Verkhovna Rada A. Parubiy, the VRU Rules on voting procedure was violated as well as the undisguised impact on the entire judicial system was exerted with the aim of intimidation and submission to the will of the authorities.
Other senior officials of Ukraine is also not averse to have a direct impact on the work of judges. Thus, in January 2016, the Minister of Internal Affairs of Ukraine A. Avakov declared that authorities should carry out a radical reform of the courts and to replace the entire judicial corps. His staff follows him – in April 2016, H.Dekanoidze stated that courts were guilty of police reform failure of the and called for “society” not to allow the “victory of revenge” to take place.
It is widely known facts of pressure on the judges of the Constitutional Court of Ukraine during the consideration of the case of constitutional appeal submitted by 47 MPs of Ukraine regarding the compliance of separate parts of the Law of Ukraine “On the cleansing power” (lustration) with the Constitution of Ukraine.
New Prime Minister Vladimir Groysman continued this bad tradition, frankly invading the sphere of authority of the judicial power deligated the Ministry of Justice of Ukraine on April 28, 2016 to check the so-called “illegal” decisions of judges and to publish information about them. As commented the proposal one of the members of the Advisory Board of the General Prosecutor of Ukraine Yuri Spektor “The Prime minister hinted that the Minister of Justice will announce the names of undesirable judges, calling them enemies of the nation, stigmatizing them, hanging tags, and then the revolutionary Red Guards of controlled “activists” will organize a public campaign of harassment and intimidation of a particular judge in order to achieve two goals: to punish this judge, force him to reconsider its decision or take an action, and at the same time intimidating others – thereby saying that everyone can see what may happen, if you are not with us … Such methods can hardly be called differently than terrorism”, writes expert.
In addition, according to unconfirmed information, the candidates for the position of judges shall be interviewed at the Administration of the President of Ukraine.
All these violate the constitutional provisions devoted to the protection of the status of judges: independence and immunity of judges are guaranteed by the Constitution and laws of Ukraine. The impact on the judge in any manner is prohibited. A judge can not be called to account for a court decision, with the exception of committing a crime or disciplinary offense. The state ensures the personal security of judges and their family members (Art. 126). For disrespect for court and judge, guilty persons are brought to legal liability (Art. 129).
“Civil activists in masks” keep up with the state authorities. For example, on October 22, 2015 the activists of public lustration committee gathered under the building of the Constitutional Court of Ukraine demanding the removal of the eight judges from hearing the case on lustration and appointment of others, as well as the punishment of the judges, as the General Prosecutor has already the evidence of their “crimes”. Pressure on judges and their families was exerted repeatedly.
For example, on January 22, 2015 in Kiev, the unknown attacked the judge of Pechersk District Court Oksana Tsarevich; on December 26, 2015 in Kyiv in the court, where the question of delivery of Gennady Korban was considered, the MP Andrey Denisenko threw a few bottles of water to the judge; on July 1-2, 2016 in the Kiev Appeal Court, during the consideration of the case of “Aydar” battalion commander V. Liholitov in relation to criminal offenses committed by him and his subordinates in the ATO zone, the court itself and the Khreshchatyk Street were blocked by his subordinates, due to the pressure the suspected was released on bail of the MPs group, and the Prosecutor General Lutsenko offered to give them an indulgence, releasing from the responsibility of “servicemen who in wartime conditions violated the Criminal Code”; on November 23, 2016 in Kiev, the radicals have blocked the building of the Appeal Court, where the case of Aydar soldier V.Zaveruhi was consired, who was accused of petrol stations robberies and murders of civilians and police officers in Kiev; on November 25, 2016 a group of people prevented the delivery of the accused “Berkuts” from Lukyanovka detention center to the court and the Internal Affairs Minister Avakov expressed his full support, actually refusing “Berkuts” in the right to a fair trial.
In addition, the case of 23 killed officials of the Interior Affairs Ministry during the socio-political events of winter 2014 are not being investigated. For all members of opposition on the part of the Maidan, in February 2014 the Law “On amnesty of Euromaidan participants” enacted under which they were amnestied, thereby putting the legal barriers to the investigation of crimes committed by them against Interior Ministry officers, including their killing. Prosecutors investigate this type of crime almost secretly. Thus, there is a violation of the constitutional right of their relatives to a fair judgment on the killers. Although some persons officially declare that the killing of law enforcement officers on the Maidan has been made with firearms, but authorities do not apply any sanctions in this case. In such a way, killing of law enforcement officers in the winter 2014 is legalized. However, there was no appropriate reaction from international organizations and the European Commission. The assessment of such blatant approach, violating the basic principles of human rights, was not given.
As a follow-up to the topic, according to the Council of Judges of Ukraine, some judges were unable to cope with the social pressure and committed suicide, others -lost their old parents, who could not stand the “public” condemnation. At the same time, the state which immediate duty is to protect the judges does not take any measures in this regard. The judicial bodies and the judicial self-government have repeatedly drawn the attention to the viciousness of such practices in their public statements.
Blocking the judicial system
It is worth mentioning such feature of the Ukrainian judicial system as a lack of judges in a number of district courts and, accordingly, non-functioning of 219 courts throughout Ukraine. The judges, who had been there – either retired or were lustrated, and recruitment of new vacant posts was not performed. At the same time, Ukrainian citizens in the relevant territories are deprived of the right to a fair trial, enshrined in the Constitution of Ukraine (Art. 55), and the ECHR (Art. 6).
In addition, in the summer of 2016 there was an attempt to enter into the judicial system of Ukraine separate type of courts – anti-corruption courts. In particular, the draft law of President Poroshenko envisaged the creation of Anti-corruption Supreme Court in 2017. Fortunately, the MPs did not support the innovation. The corruption” crime itself clearly falls within the competence of the criminal justice system and the establishment of a separate court for this type of crime seems to be absolutely illogical. In this case, it is necessary to create separate courts for all other types of criminal offenses: robbery, banditry, grievous bodily harm, rape, etc.
Weakness of the anti-corruption bodies
In addition, in previous monitoring the attention was drawn to the fact that within Ukrainian reality, the anti-corruption bodies are not independent and do not perform the function of the “fight against corruption” in the understanding of Western democracy. In the process of its development and formation, they turn themselves into the political projects, parasitizing on election slogans of struggle against corruption, and the leaders of these bodies are either appointees or direct participants of the implementation of such political projects, and young managers and employees of such bodies in private conversations do not hide that as quintessence of the activity against corruption they see their future as an MP at various levels, and perspective to live on grants allocated by the European partners. In addition, they do not hide the fact that they receive advice on “correctness” or “wrongness” of anti-corruption investigations in the embassies of the countries that are the agents of European integration of Ukraine. In fact, it is an interference in the internal affairs of a sovereign state, and gives reasons to ill-wishers of Ukrainian independence to speak about total external control, including using the fight against dissidence for “single opinion” with the involvement of law enforcement, foreign embassies, consultants and individual politicians.
Thus, in 2016 the global changes in the judicial system of Ukraine have been made, in particular, the relevant section of the Constitution has been amended. However, the quality of justice in the positive direction is not affected. A number of courts cannot ensure the realization of citizens’ rights to a fair trial due to the lack of judges in them, the judges are pressured because of their citizenship, various paramilitary units have an impact on the course of judicial proceedings, actually releasing their “colleagues”. Authorities do not make any steps. Moreover, often officials make statements undermining the credibility and confidence of the judicial system, putting pressure on it and ignoring the independence of the courts and the immunity of judges. The murder of law enforcement officers during the Maidan in 2014 is not investigated, creation of courts for certain types of crimes is proposed.
Raising of utility prices
In April 2016, by number of decisions of public authorities prices for gas, heating and hot water for the population have been raised. The final price for gas from 1 May 2016 will be 6 879 UAH per thousand cubic meters throughout the country, and hot water in Kiev has risen to 80 hryvnia per cubic meter, the proposed tariff for heating amounted to 1 161.28 UAH/Gkal for Euro Reconstruction clients and 1 345.12 UAH/Gkal for Kyivenergo clients. For the houses where there is no metering devices of heat energy, heating cost is about 31 hryvnia per square meter per month without heated towel rails. For apartments and houses with heated towel rails the tariff is about 70 UAH per cubic meter.
At the same time, it should be stressed that the Ukrainians are earning less this year. The Swiss Credit Suisse estimates the drop in incomes of Ukrainians 19%. This is stated in the Global Wealth Report.
According to the latest data of the average Ukrainians earn less than $ 200 a month. At the same time, this indicator falls several years in a row. On January 1, 2014 the minimum wage fell by almost three-fold – to $ 148.54 per month to $ 57.42. This is the lowest figure since 2005.
These actions of the authorities, which lead to significant and unaffordable for the majority of the population growth of utility payments contradict the constitutional norm about Ukraine -a “social state” and the right “to earn for a living by work” (Art. 43). In addition, the European Social Charter (1996) stipulates “the right to a fair remuneration”, which essentially consists in the obligation of the state to “1.recognize the right of workers to a remuneration ensuring them and their families a decent standard of living”(Art. 4). Taking into account the minimum wage, the minimum pension, these commitments are obviously violated by the State.
The authorities gave cynical “advice” to fellow citizens: the MP from the BPP O.Barna offered Ukrainians to disconnect one or two rooms from heating, if you do not have enough money to pay high tariffs, Vice Prime Minister Rozenko advised residents of the countryside to refuse from gas at all.
Thus, during the considered period we can state the frequent, systematic and gross violation of both constitutional provisions and international commitments concerning social rights and freedoms from the state bodies of Ukraine. These violations are blatant and cynical and there is no objective response to the remarks of international institutions.
The substitution of concepts within the framework of the fight against corruption
The Director of the National Anti-Corruption Bureau of Ukraine (NABU) A. Sytnik addressed to the Verkhovna Rada on May 19, 2016 to support the legislative initiative, which would allow his department to make listening autonomous. At this point, the right of an invasion of private life of citizens by listening their private conversations has only a limited number of public bodies: Security Service of Ukraine, Ministry of Internal Affairs and the GPU. In addition, they can to carry out such activities only by court order. Criteria by which NABU will decide whom to listen to are also not justified. According to European practice, the right to privacy of correspondence is fundamental, and as explained by the European Court of Human Rights it extends also on the telephone calls. Thus, it can only be violated in exceptional cases. The same practice is enshrined in Art. 31 of the Constitution of Ukraine. Therefore, such an extension of the list of authorities with the right of invasion of privacy, is unlikely to meet European standards.
It should also be noted that despite the existence of the Criminal Code of Ukraine Art. 163 concerning the violation of the secrecy of correspondence and telephone conversations, as well as Article 359 provides for penalties for the illegal acquisition, sale and use of devices for listening, it is not an obstacle to the active dissemination of this type of crime and the use of “wiretaps” as a tool for commercial and political purposes.
On March 16, 2016, the representatives of NABU conducted a search in reception office of the MP from the group “People’s will” A. Onishchenko. NABU justified their actions by the availability of a judicial search warrant of premises on specific legal address, where the reception office of the MP is also located. The fact of availability of the respective label on the searched premises is not denied.
Public authority’s actions directly violate Art. 80 of the Constitution, which guarantees the immunity for MPs. As explained Constitutional Court of Ukraine, “parliamentary immunity is part of MP’s status and constitutional guarantee, which aims to create appropriate conditions for the smooth and effective exercise of parliamentary activities (deputy powers). It is not a personal privilege, it has public law character. Its purpose is not only to protect the MP of Ukraine of unlawful interference with his parliamentary activities, but also contribute to the proper functioning of Parliament”.
In addition, as noted in special law of Ukraine “On the status of people’s deputy” (1992), there is a special procedure for obtaining the right to search the public reception of a MP, arising from the peculiarities of the national status of a MP – “search, detention of people’s deputy, or inspection of personal belongings and luggage, transport, residential or office premises of people’s deputy, as well as the violation of the confidentiality of correspondence, telephone conversations, telegraph and other correspondence and application other measures in accordance with the law limiting the rights and freedoms of the people’s deputy, are permitted only in case when the Verkhovna Rada of Ukraine give its consent to bring him to criminal liability if other methods to get information can not be applied”(Art.27, para. 2).
The procedure has been directly violated, because there was no request from the NABU to the Parliament or, respectively, no voting on this issue were conducted. The court’s decision does not give the right to search the premises of the MP, and NABU does not deny the fact of public reception office of the MP being located there.
Such actions of NABU, on the one hand, shows not only the open violation of the important provisions of the Constitution and laws of Ukraine, but also the threat that can carry the activities of this body for the citizens of Ukraine, as well as the use of the body in the political struggle, since, for example, no action regarding the offshore scandal of the President of Ukraine from NABU side was not performed.
It is necessary to point out separately that another anti-corruption body – the National Agency for Prevention of Corruption is struggling to expand its powers, although there is no methodology of checks for corruption in its practice.
An odious draft law on special confiscation
On September 6, 2016 during the opening of a new session of the Verkhovna Rada, President Poroshenko in his annual address to the parliamentarians identified one of the key tasks for MPs in the near future – adoption of a law on so-called special confiscation. For two years about 50 billion UAH have been arrested on the accounts in Ukrainian banks, namely, in state banks “Oschadbank”, “Ukreximbank” and “Ukrgasbank”. These accounts encumbered assets in cash (mainly in US dollars and in the hryvnia) and the smaller part – in domestic bonds in foreign currency.
To enroll these funds in the state budget is now almost impossible, because the legal final court decision is necessary that would state that Yanukovych and his supporters committed a crime for some cases in which they are suspected by law enforcement agencies.
The first attempt to introduce a special confiscation at the legislative level was a draft law No.3025, registered in September of 2015. It was initiated by members of the team of former Prime Minister A. Yatsenyuk. The main disadvantage of proposed option of special confiscation was that it was targeted – there were specific names of Yanukovych and members of his team. Since it is contrary to the generally accepted norm for a special mechanism of confiscation as well as for legal practice in general, the draft law was not adopted.
Then, in early 2016, two more draft laws were submitted – first No.4057, and immediately after its withdrawal – No. 4811. Thus, both were substantially identical. They were criticized by the parliamentary committees and the part of MPs, and as a result – were not adopted. In July 2016 a draft law No.4811 was recalled and registered a new one No.4890 – the fourth. In fact, it differed from the previous versions not much. Also in the decision on Support of Law Enforcement Committee was pointed out that the draft law (as well as previous versions) received a negative opinion from the Council of Europe.
The next attempts were made by the Cabinet of Ministers, and the Ministry of Justice started the preparation of a new draft law. On September 14, 2016 the Cabinet of Ministers approved and sent to the Verkhovna Rada a new draft law on special confiscation prepared by the Deputy Minister of Justice A. Yanchuk – No.5142 “On Amendments to Certain Legislative Acts of Ukraine regarding the collection of unjustified assets to the income of the state”. The draft law provided a mechanism for civil forfeiture (in civil proceedings) – internationally known as the “Non-Conviction Based Asset Forfeiture”. By the way, in the previous draft law No. 4890 a process collection of unjustified assets took place within the framework of criminal proceedings. The Institute of civil forfeiture stipulates the collection of unjustified assets to the state revenue until the end of criminal proceedings, during which these assets have been detected. Unjustified assets mean the assets, the legitimacy of the origin of which can not be proved, and, therefore, they were obtained unlawfully or through corruption.
An important difference from the ordinary mechanism of confiscation is that under civil forfeiture the property are collected without no direct connection with the crime, the investigation of which the property was found. A simple example: a few days ago the son of ex-President Alexander Yanukovych was announced the suspicion (one of) in the involvement in illegal acquisition of “Mezhigorie” residence by his father. According to the mechanism of civil forfeiture, to all the funds of Alexander Yanukovych shall be subject to the collection in the budget which are discovered in the course of the investigation and the legal origin of which can not be justified.
In addition, civil forfeiture can be carried out only during the investigation of criminal offenses of corruption (some crimes against property, cases concerning drug trafficking, performance of professional duties, indicated in the footnote to Article 45 of the Criminal Code of Ukraine). Moreover, civil forfeiture shall be applied only to cash and non-cash currency, the securities and other payment documents, bank metals and precious stones. Their value should exceed one thousand estimated levels of minimum wage (as of today – UAH 1.45 million). It means that cars, houses or other movable or immovable property shall not be subject to confiscation.
For the process of civil forfeiture of assets the appeal of civil proceedings on collection of unjustified assets is required from the Prosecutor General solely (or i.a.) or the Deputy Prosecutor General – Head of the Specialized Anti-Corruption Prosecutor’s Office. The claim must also contains “circumstances that give reason to consider that the owner of the assets is their nominee holder”. The defendant, in turn, must prove the validity of obtaining assets, providing for that the relevant documents. Thus, in this procedure correspond to the model relationship “claimant – defendant” but not “the prosecutor – the accused – suspected”.
At the same time, the law on special confiscation raises several issues related to the rights of citizens. Firstly, a system is introduced in which the person will have to prove the legitimacy of property ownership, and not the state – to prove the illegitimacy of such possession. Secondly, it is undermined the very foundation of the sacred contemporary social relations – a private property that can be confiscated without having a direct connection with the crime. Thirdly, the confiscation mechanism of illegally acquired property already exists in the Ukrainian criminal law, and the mechanism of civil forfeiture is shorter in terms and less burdened with formalities. Fourth, civil forfeiture can serve as a way of pressure and punishment against political opponents, thereby it is sufficient to open cases on corruption, then confiscate the property in an expeditious manner.
Thus, fight against corruption in Ukraine is transformed into a mechanism for settling scores with political and business competitors, by people who have influence in power structures through extensive use of listening mechanisms. There are active attempts to push an illegal mechanism of special confiscation this time “civil forfeiture”, which transforms the relationship of unconvict persons with the state in the plane of proving of lawful possession of the property. The already existing and operating mechanism of criminal forfeiture by the court is replaced.
Violation of the rights of internally displaced persons
On the results of 2015 Ukraine joined the list of states with the highest number of internally displaced persons (IDPs), according to the Internal Displacement Monitoring Centre (IDMC) – 1,7 million persons.
At the beginning of 2016, the Law “On amendments to some laws of Ukraine concerning the strengthening of guarantees of the rights and freedoms of internally displaced persons” has entered into force, which was designed to improve significantly the situation in this area.
Nevertheless, the social and legal support of IDPs in Ukraine remains in a very difficult situation. The displaced persons face a total bureaucracy, as well as disregard of their constitutional rights and freedoms.
Earlier this year, a number of public organizations declared about mass violations of the rights of migrants because of the directive of the Ministry of Social Policy concerning non-compliance with the Law of Ukraine “On ensuring the rights and freedoms of the internally displaced persons” among the departments of social protection of the population.
In spring 2016, as a result of breaching the terms of the extension of IDPs’ certificates by local offices of the State Migration Service (SMS), there was a critical situation when the migrants could not receive social security payments. In order to receive the certificate of registration, IDP should submit an application to the Office of Social Protection of Population at place of residence. On issuing a certificate, an executive officer informs the internally displaced person about the obligation to report to the territorial division of the State Migration Service within 10 days about the actual place of residence, as well as about change of the actual place of residence or return to the actual place of residence.
Territorial division of SMS, within three days after reporting of internally displaced person about the actual place of residence, checks the information mentioned in the certificate, and in case of confirmation puts down reference mark on the reverse side of the certificate on the place of registration, and submit the relevant information in electronic form on daily basis to the authorized body. A certificate is not valid without putting on its reverse side of the reference mark.
Territorial division of SMS refuses to put down on the registration certificates issued to displaced persons by Office of Social Protection of Population, a stamp on the actual place of residence of such persons. Explaining that the Law of Ukraine “On amendments to some legislative acts of Ukraine concerning the strengthening the guarantees of the rights and freedoms of internally displaced persons” entered into force on January 13, 2016.
The authorities acknowledged the this situation should be improved urgently and the mechanism of simplifying the procedure of registration of internally displaced persons should be found in the shortest time, but the process is moving with great difficulty.
At the state level, a policy of ensuring Ukrainian citizens with social benefits only in the controlled area is performed. Ukrainian citizens, which are unwillingly found themselves on territory controlled by illegal organizations “DPR” and “LPR” are cut off from state support.
Total bureaucracy, which significantly complicates the lives of IDPs, is observed in many small things. In particular, since July 1, 2016 the payment of pensions to IDPs will be made only through the branches of “Oschadbank.” Thus, all citizens who were served in other banks, post offices would have to start using the services of “Oschadbank.”
Unified Register of internally displaced persons has not been created yet. The Ministry of Social Policy is still developing the Register which has been scheduled to start in September.
We should acknowledge the institutional problem of work with IDPs. Thus, as stated by Deputy Head of the Ministry responsible for the occupied territories and internally displaced persons, Mr. Tuka, the agency does not exist in general – there are only three employees in the Ministry – the Minister and his two Deputies.
The very status of internally displaced persons is checked twice a year. It actually violates the principle of equality of citizens, stipulated in the Constitution (Art. 24). Within the framework of monitoring of their presence in the places of temporary residence, the lists of such citizens are posted by the authorities in order to control their place of residence. This fact violates the right to privacy of individuals.
Thus, social security and legal guarantees for IDPs are in extremely poor condition and are faced with a lack of power to fix the situation quickly and efficiently. The total bureaucratization of the process, as well as the absence of real actions of the authorities led to significant fall of the living standards of IDPs and the possibility of their fast socialization.
Violation of the rights of prisoners
According to the International human rights organization Amnesty International, there are secret prisons of the SSU in Ukraine at least located in Kharkov, Mariupol, Kramatorsk and Izum, from which on August 29, 2016, 13 people were released on the eve of the visit of the delegation of the UN Subcommittee on Prevention of Torture.
The very fact of existence in the SSU “their” prisons proves the violation of the Ukrainian legislation. Ukraine reported to the Council of Europe about closing the detention center of the SSU in 2003, 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, application of torture to persons detained in such prisons is a violation of national law (Art. 28 of the Constitution), a peremptory norm of international law of ergo omnes nature, as well as the norms of a number of international conventions of universal (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and regional character (European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987)), Art. 3 of the European Convention about the protection of human rights and fundamental freedoms (ECHR) (1950)), which Ukraine is a party.
Third, detention of such persons without trial in prison is also a violation, since breeching Art. 29 (right to freedom and personal immunity), Art. 55 (protection of rights in the court) and Art. 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).
Meanwhile, on October 11, 2016 the Ukrainian justice released from prison for some strange reason one of the founders in 2014 of LPR organization, characterized in Ukraine as a terrorist – Sergei Korsunskiy, but at the same time continue to keep in detention center Kharkiv resident U.Apukhtin – leader of Antimaydan meetings in March-April 2014.
A striking example of systemic problems in this area is the situation with a visit of the Prosecutor General of Ukraine Yuriy Lutsenko Raikovski to the penal colony №73 in Zhytomyr region. “Horror. 500 convicts. There is no water in the shower, food is cooked directly in the shop where they cut firewood. There is no glass in the windows in a punishment cell, too, there is no water in the infirmary almost no medication. The day cost in meeting room -… 700 UAH access. Telephone communication is not organized, “- The Attorney General wrote on his page on Facebook. How many more of these prisons located in Ukraine? This remains a rhetorical question.
A separate issue is the exchange of certain Ukrainian citizens to other as part of the procedure of “release of the hostages,” in which the President Poroshenko and the Head of the SSU J. Hrycak are actively involved. The most blatant case was the exchange on June 14, 2016 with Russia of G. Afanasyev and U. Soloshenko to citizens of Odessa accused of separatism Elena Glischinskaya and Valeriya Didenko, the first one was pregnant at later stages during the exchange. These actions are flagrant violation of the Ukrainian Constitution, which prohibits the expulsion or extradition of the citizens of Ukraine to another country (Art. 25). In addition, it is actually advocated the lack of equality of citizens of Ukraine, proclaimed in Art. 21 of the Constitution of Ukraine.
Similar information contained in 14 of the series of reports prepared by the United Nations Mission for Monitoring Human Rights in Ukraine covering the period from 16 February to 15 May 2016. In particular, it noted that “the Human Rights Agency has received messages about cases of enforced disappearances, arbitrary and secret detentions, torture and cruel-treatment by the Ukrainian law enforcement agencies. There were more than 20 cases of arbitrary detention and cruel treatment among them … Many of these cases concerned detention without connection with the world in unofficial prisons where torture and ill-treatment are used as means to extract confessions or information, or to intimidate or punish the victim”.
In the context of this issue it is worth noting the special role of the Ukrainian Orthodox Church. Thus, the known means of numerous examples of the UOC in the exchange of prisoners. Between the UOC and special services in this area through dialogue. So, in November 2016 the Chairman of the SBU Basil Hrycak and representatives of the All-Ukrainian Council of Churches discussed the possibility of release Ukrainian prisoners on Wednesday during a visiting session in Kramatorsk. As has been stated by experts, the participation of the UOC is a very promising trend.
Thus, during the reporting period a number of violations in the area of prisoners’ rights have been identified, such as torture, the existence of “secret prisons”, the exchange of Ukrainian citizens to other citizens of Ukraine. International organizations pay attention to the arbitrary detention and ill-treatment.
Violation of the right to work
On September 3, 2016, Ukrainian media spread information about the removal from of work and the beginning of dismissal procedures for sisters Kovalchuk, who taught at the Pedagogical Dragomanov University in Kiev. The reason for the dismissal was their statements in social networks, characterized as a “separatist”.
In this case we can observe a whole bunch of violations of a number of legal norms. First of all, the personal civil position of Ukrainian citizen is not a reason for limiting the right to work. Secondly, dismissal is only possible in compliance with a number of labor laws. Third, if a member of the teaching staff worked under contract, breaching the contract by one of the parties is possible only on the basis of clearly defined legislation terms therein. The very fact that certain phrases of persons are considered as “separatism” can not be a reason for dismissal and the fact of such their understanding in general must be proven by conducting the appropriate examination. Moreover, the last but not the least. The expression of the thoughts in the social networks should be considered a possibility of realizing the freedom of expression enshrined in the Constitution of Ukraine and a number of international legal instruments which Ukraine is a party and, accordingly, should be observed.
Thus, in Ukraine, in 2016 there have been cases of unlawful restrictions on the right to work based on political sympathies and antipathies of the person.
The complication of the situation with the labor market and employment in Ukraine is connected both with a tough illegal Russian Federation’s position on closing the market for Ukrainian goods, first of all, for mechanical engineering and agricultural products, as well as due to the fact that the quotas for agricultural products supplied to Europe, existing after the signing of “On free trade with the European Union” Agreement (considering changes and increases adopted in recent years) did not meet opportunities of Ukrainian exports to Europe.
For example, following the signing of the agreement “On free trade with the EU,” Ukraine has lost 33% of its exports to Europe, and more than 68% of export to Russia and CIS countries. In such circumstance, it seemed obvious, that the certification of Ukrainian products in Europe, negotiations on increasing quotas, as well as the development of loading the domestic industry involving, first of all, state-owned monopolies, such as NAC “Naftogaz”, NAEC “Energoatom”, PJSC “Ukrzaliznytsia” could be a rescue.
Nevertheless, according to Ukrainian experts, “Naftogaz” management is not controlled by the Ukrainian government. In any situation related to the deliberate and regular instructions of the government, NAC management runs to Western Embassies, enabling the protection and lobbying schemes by foreign diplomats. In particular, there is a conspirological theory that “Naftogaz” management was appointed to destroy the Ukrainian engineering sphere, engaged in the creation of gas-pumping stations and equipment for PJSC “Ukrtransgaz” and PJSC “Ukrgasdobycha”, transfer into a concession or a consortium of Western companies of PJSC “Ukrtransgaz”, considering that this company needs a serious modernization to impose it technical credit instead of payment, concession, or lease in the form of equipment (pumping stations) of western production, are 2 times expensive than domestic analogues.
As a confirmation of this, we can observe the cancellation of tenders, announced and carried out through a system of “ProZorro” for 3 gas pumping station. Conditional motivation – theoretical consequences of the possible construction of “South Stream”, which puts on the edge of survival 6 machine-building enterprises: PJSC “Sumy Frunze NPO”, State Enterprise “Zorya” – “Mashproekt”, PJSC “Dneprospetsstal”, LLC “Ukrgazprombud”, PJSC “EMSS”, LLC “Centravis” and others.
This is just one of the examples, vividly discussed by Ukrainian society, when, under the slogan of “Integration into Europe” it is possible the destruction of Ukrainian machine-building complex (and Ukrainian industry in general) by competitors followed by the capture of the market, the consequences of which would be certainly a loss of jobs and other social problems.
The same topical and discussed problem is the pressure of European Commission regarding the export of round wood. Thus, the President of Ukraine Petro Poroshenko during the EU-Ukraine summit in Brussels, said that he intends to initiate cancellation of moratorium on the export of unprocessed timber. This was announced by European Commission President Jean-Claude Juncker. However, a year earlier a willful decision on the moratorium was made due to the fact that in the forests of the Carpathians and Polissya an unauthorized, incessant, illegal cutting of forests took place, significantly inflicting economic and environmental losses for Ukrainian state. A considerable proportion of legally and illegally cut down timber was sold to the West.
Therefore, during the reporting period in 2016, we can acknowledge a number of violations of citizens’ constitutional rights and international obligations of Ukraine. The state authorities of Ukraine, whose task is to ensure and protect the rights of citizens, are in a deep institutional crisis.
Many top officials are not aware of the scope of their responsibility, allowing themselves the racist statements, violation of the procedures of laws’ adoption and personnel appointment. Random people with no relevant work experience are appointed to senior positions.
State Authorities do not fulfill the international commitments of Ukraine. All this happens despite the fact that according to the Constitution of Ukraine, “a person, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value … The state is responsible to the individual for its activity. The establishment and maintaining human rights and freedoms are the main obligation of the state”(Art. 3).
In the field of lustration for 2016 the, Ukrainian authorities has not taken measures on the implementation of the European standards in the Law “On the cleansing power” as urged by the Venice Commission in order to bring it into line with European human rights standards. In the framework of lustration, thousands of dismissed citizens of Ukraine can not achieve justice in the courts of general jurisdiction, as these courts do not take decisions expecting the verdict of the Constitutional Court regarding the constitutionality of the Law “On the cleansing power.”
The situation is complicated by the fact that representatives of the Ukrainian authorities in drafting laws attract, as technical assistance, lawyers without any relevant competence or experience in the European practice, and who are not able to implement effectively the European standards. Consequently, the position of the Ukrainian authorities is more than a delicate, and it is proved to be no more than logical continuation of juggling by European integration slogans about the values of democracy without any desire and political will to apply them in practice. The Ministry of Justice in such a scheme is transformed into a punitive body: there is tightening of the legislation, which is contrary to the adopted human rights standards.
In the field of inter-confessional relations, relationships between the state and religious organizations, and ensuring the rights of believers should be noted the negative trends of interference of state authorities in the church life under the slogan of “creating a single local church”, although the Constitution of Ukraine proclaims the separation of church from the state (Art. 35).
Furthermore, there is a purposeful struggle of a number of religious organizations with the support of some MPs and paramilitary formations against the largest religious community in Ukraine – Ukrainian Orthodox Church (UOC). There have been facts of grabs of parishes, beating of believers and ministers of the church, especially in western Ukraine. There have been proposed several draft laws (No.4128 dd 02.23.2016 and No.4511 dd 22.04.2016), legitimizing church raiding and discrimination of religious organizations violating the constitutional norms, endowed with evaluative and subjective approach and in case of its adoption could lead to a clear violation of the rights of believers and religious organizations, and more specifically – the UOC.
In the sphere of freedom of expression and free access to information (Art. 34 of the Constitution) and the right of journalists to the profession, the situation in 2016 has deteriorated even more comparing with 2015. There is a deliberate state policy to restrict access of Ukrainian population to other points of view than the official. Despite the existence of a significant percentage of Russian-speaking and ethnically Russian population in Ukraine, there is a policy of cleansing the entire cultural and information space of Ukraine from anything related to Russia or Russian language (TV content, books), despite centuries-old relationship between the people and the existing personal and family ties. The final act in this direction was the ban on the import of books from Russia. By this, among other things, Art. 10 of the Constitution of Ukraine which explicitly guarantees the free development, use and protection of the Russian language, is violated.
Ukrainian journalists receive criminal liability for the expression of their civil position (Kotsaba case), they are killed, the personal data of foreign journalists are openly published, the work permit of foreign journalists are revoked (Shuster case). The operation of TV channels is blocked (Inter case). All this directly violates the rights of journalists as individuals to perform their functions impartially informing the public about the situation in the country and right itself to free express of their opinions, different from the views of the authorities of Ukraine and legislative norms (Art. 171 of the Criminal Code of Ukraine).
The political forces’ attempts continue, they try to control military formations, which are continuation of the political parties and social movements. It certainly threatens Ukraine, its stability and territorial integrity. At the same time, the Ukrainian government does not take adequate steps to control the situation, although the Constitution of Ukraine only allows the existence of legitimate armed formations (Art. 17). In fact, in some areas, in ATO zone, as well as locally in the territory of placement of combatants’ training bases of volunteer battalions, a parallel system of power and military control is building up, capable to carry out the function of the state and military administration during the crisis management situations.
In 2016 the global changes in the judicial system of Ukraine have been made, in particular, the relevant section of the Constitution has been amended. However, the quality of justice in the positive direction was not affected. A number of courts cannot ensure the realization of citizens’ rights to a fair trial (Art. 129 of the Constitution of Ukraine) due to the lack of judges in them, the judges are pressured because of their civil position, various paramilitary units have an impact on the course of judicial proceedings, actually releasing their “colleagues”. Authorities do not make any steps. Moreover, often officials make statements undermining the credibility and confidence of the judicial system, putting pressure on it and ignoring the independence of the courts and the immunity of judges. The murders of law enforcement officers during the Maidan-2014 are not investigated, creation of courts for certain types of crimes is proposed, belonging to general criminal jurisdiction.
In the fight against corruption in Ukraine there is a clear substitution of notions, and it is transformed into a mechanism for settling scores with political and business competitors, by people who have influence in power structures through extensive use of listening mechanisms. Moreover, even the nominal fight against corruption and state-building priorities of the authorities are above human rights which contradicts the European norms and standards. There are active attempts to push an illegal mechanism of special confiscation, this time – “civil forfeiture”, which transforms the relationship of unconvict persons with the state in the plane of proving of lawful possession of the property. In addition, the already existing and operating mechanism of criminal confiscation of inappropriate acquired by court decision has been replaced, where the state party should prove the illegality of assets’ possession.
During the reporting period, the international human rights organizations have been identified a number of violations in the area of prisoners’ rights, namely, such as torture, the existence of “secret prisons”, the exchange of Ukrainian citizens to other citizens of Ukraine. They pay attention to the arbitrary arrests and ill-treatment of detainees.
There is a sharp decline in social standards of Ukrainian citizens’ life, despite the proclaimed social orientation of the state (Art. 1 of the Constitution). There has been a quarterly price increase during the past three years to different kinds of public services, which puts a significant amount of the population below the survival line. The state takes minimum measures in order to somehow address the existing situation.
In Ukraine, in 2016 there have been cases of unlawful restrictions on the right to work based on political sympathies and personal antipathies.
Thus, social security and legal guarantees for IDPs are in extremely poor condition and are faced with a lack of power to fix the situation quickly and efficiently. The total bureaucratization of the process, as well as the absence of real actions of the authorities led to significant fall of the living standards of IDPs and the possibility of their fast socialization.