General overview of the observance of human rights and fundamental freedoms in Ukraine
The military conflict in Ukraine has primarily brought about violations of human rights and fundamental freedoms which became a regular occurrence in the occupied territories – Crimea and eastern Ukraine. In addition, although positive developments in human rights aspects (constitutional amendments related to the rights, freedoms, and duties of individuals and citizens) are underway or under reflection, some aspects are still unreformed. In particular, there are abuses of individual and economic rights, and the right to a fair trial. The issue of internally displaced persons (‘IDPs’), participants of anti-terrorist operation (‘ATO’) is unresolved.
Therefore, the comprehensive overview of the observance of human rights is important to ensure adequate and timely response to any abuses in this field.
Another burning issue is human rights violations justified by the so-called revolutionary expediency or military necessity. Unfortunately, the manipulation of public opinion to pressurize political opponents has become commonplace. Thus, the presumption of innocence is completely disregarded, and public opinion is often sufficient to establish person’s guilt.
The mentioned shortcomings could be to some extent justified by their temporary effect and application during the transitional period, the absence of bodies of power. However, such an argument would be weak as nothing has been improved considerably during these two years, which casts a shadow on the effectiveness of state institutions and the genuine values the authorities.
The results of the PACE last session
An important in terms of the overall assessment of the rights and fundamental freedoms observance in Ukraine in 2015 is the latest session of the Parliamentary Assembly of the Council of Europe (‘PACE’). In particular, in its Resolution 2075 (2015) “Implementation of judgments of the European Court of Human Rights” PACE pointed out that Ukraine has the highest number of non-implemented judgments.
Thus, today in Ukraine there is not only the problem with respect for all rights guaranteed by the European Convention on Human Rights (Ukraine has obligations under this international instrument) but also difficulties with the proper restoration of the rights violated by the state. In addition, the above-mentioned resolution noted that Ukraine still faces serious structural problems with implementation of decisions of the European Court of Human Rights (‘ECtHR’) which have not been solved for more than five years.
Another important document is the PACE Resolution 2078 (2015) “The progress of the Assembly’s monitoring procedure,” which reports on the situation in Ukraine in the period from October 2014 to August 2015.
In the context of the protection of human rights the following provisions of the aforementioned resolution should be pointed out:
- The Assembly welcomed positive developments and the progress in the ongoing efforts to reform the constitution and decentralize power to the regions,
- The Assembly expressed its concern about developments and shortcomings that remained in Ukraine. According to PACE, these shortcomings undermine the democratic consolidation of those countries and are at odds with their obligations and accession commitments. In particular, there are credible reports of human rights abuses and violations of international human rights and humanitarian law by all sides in the conflict in the east of the country, including forces under the control of the Ukrainian authorities, as well as the postponement of the implementation of the Law on the General Prosecutor, which is a setback for the legal reform process.
- The Assembly urged:
- the Verkhovna Rada of Ukraine to promptly adopt the constitutional amendments on the decentralization and judiciary chapters;
- the Ukrainian authorities to continue the judicial and anti-corruption reforms and to effectively fight the endemic corruption in the country, to fully investigate any reports and allegations of human rights abuses and violations of international human rights and humanitarian law by troops under the command of the Ukrainian authorities.
Thus, Ukraine is not in full compliance with its obligations in respect to the Council of Europe as an organization in charge of monitoring and controlling the protection of human rights and freedoms.
However, even the developments welcomed by the Council of Europe (decentralization) still remain mere promises. At the same time, not only has Ukraine failed to resolve existing challenges of human rights, but also has faced new ones. In addition, not all human rights abuses are properly recorded and investigated; in other words, there are cases of selective justice.
Ukraine in global human rights rankings
Another important indicator of respect for human rights is various ratings and indices, produced by the most authoritative international human rights organizations. An example of such an assessment is the report “Freedom in the World 2015”, prepared by Freedom House. Ukraine is assessed as Partly Free, scoring three points for degree of freedom, the observance of political rights or civil liberties (with the maximum of seven).
Freedom House study in the context of political rights assessed the electoral process (9 out of 12), political pluralism and participation (10 out of 16), functioning of government (6 out of 12). The civil liberties respectively comprised the freedom of expression and belief (11 out of 16; among the disadvantages there are business magnates control of media groups, doubts regarding the necessity of establishment of the Ministry of Information Policy, occasional censorship of the media), associational and organizational rights (9 out of 12), rule of law (6 out of 16; among the acknowledged shortcomings there is a failure to dismiss judges and public prosecutors and discrimination against persons on multiple grounds), personal autonomy and individual rights (11 out of 16; the most striking shortcomings are lawlessness on the separatist-controlled territories in the east; small and medium-sized businesses suffering at the hands of corrupt bureaucrats, tax collectors, and corporate raiders; various forms of discrimination, primarily discrimination on the ground of gender identity).
Thus, a conclusion can be drawn that the overall observance of human rights and freedoms in Ukraine is unsatisfactory, and Ukraine violates its obligations in respect of both its citizens and international partners.
Human rights situation in the territories not controlled by the government of Ukraine
The human rights and fundamental freedoms situation is the worst in the Eastern Ukraine. Serious human rights violations and abuses persist in Eastern Ukraine, including shelling, executions, arbitrary and illegal detentions, torture, ill-treatment, human trafficking and the lack of justice and accountability, as well as deprivation of economic and social rights, deeply affecting the 5 million people living in the conflict-affected areas.
According to the UN report, between mid-April 2014 and 30 May 2015, at least, 6.417 people, including at least 626 women and girls, have been documented as killed and 15.962 as wounded in the conflict zone of eastern Ukraine. There are also accounts of torture and ill-treatment in detention, both by armed groups and Ukrainian law enforcers.
Although today we see a decrease in indiscriminate shelling after the adoption of the 12 February Package of Measures for the Implementation of the Minsk Agreements, but the shelling has not stopped completely, nor have armed hostilities between Ukrainian armed forces and armed groups, meaning that civilians continue to live in fear. In addition, civilian casualties from landmines and unexploded ordnance are still considerable.
Serious human rights abuses, intimidation and harassment of the local population perpetrated by the armed groups supported by Russia continued to be reported. Moreover, the monitoring missions receive new allegations of killings, torture, and ill-treatment, as well as cases of illegal deprivation of liberty, forced labor, looting, ransom demands and extortion of money on the territories controlled by the armed groups.
The impact of the conflict on the economic and social rights of civilians is dramatic. The interruption of access to basic services is life-threatening and can have a life-long impact on a large portion of the population, hindering the post-conflict recovery of the society. The UN Human Rights Monitoring Team believes that the difficult economic situation has also led to a worrying, increased risk in human trafficking.
Human rights in Crimea
International organizations and human rights monitoring missions have repeatedly drawn attention to the alarming deterioration of human rights in Crimea. To highlight just a few:
- repressive policies against the Crimean Tatar Mejlis and related organizations (in particular, barring Mejlis leaders from the territory of Crimea, harassment of Mejlis activists),
- harassment and detention of other Crimean Tatar activists,
- searches in offices of Mejlis, the Crimean Tatar media and funds,
- raiding of homes, mosques, madrassas,
- invoking anti-extremism legislation to suppress criticism,
- increased risk of unlawful deportation from Crimea (in particular, the practice of issuance of permissions to temporary staying for foreigners and stateless persons in Crimea),
- problems with the freedom of crossing the administrative border between Crimea and Ukraine’s mainland (including information that the Ukrainian border guards deliberately search people for Russian passports and deny entry from Crimea to those who have ones).
Human rights in the occupied territories and Ukraine’s stance: relations between the state and its citizens
It is generally accepted that citizenship is a political and legal bond between a state and its citizens which is a source of mutual obligations. It is self-evident, that the residing of thousands of Ukrainians in areas controlled by the armed groups in the result of the conflict does not relieve a State of its obligations. Unfortunately, these obligations are often ignored or not performed in full.
At the same time, Ukraine is obliged to provide every kind of assistance to those who continue to support motherland living in the occupied territories and believe that the Ukrainian government will reestablish control over these territories.
This obligation is enshrined in Article 5 of the Law of Ukraine “On Securing the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine” which stipulates that “Ukraine shall take all necessary measures to guarantee human and citizen rights and freedoms provided for by the Constitution and laws of Ukraine and by international treaties, to all citizens of Ukraine residing in the temporarily occupied territory.”
Additionally, this article enshrines that “Ukraine shall commit itself to support and provide economic, financial, political, social, informational, cultural and other ties with citizens of Ukraine residing in the temporarily occupied territory.” Unfortunately, the practice shows that the above provisions are not always implemented.
Respect for civil rights of citizens
The exercise of each person’s civil rights is of utter importance. One can hardly imagine not having access to such popular procedures as registration and issuance of birth, death, marriage, divorce and medical certificates. For the Ukrainians living in Crimea, the procedure can be cumbersome and time-consuming; on top of that, Article 9 of the aforementioned law provides that any act (decision, document) issued by the authorities and / or persons of the second paragraph of this Article is invalid and does not create legal consequences.
It is observed that residents of the peninsula cannot avoid addressing the Crimean institutions. The Ukrainian legal framework applied in respect of Crimea penalizes those who wish to maintain a continued bond with the mainland and can lead to the development of fraudulent practices.
There is no clear and simplified administrative procedure of issuance necessary certificates. There is a general court order to establish the fact of birth or death, but it is too burdensome for citizens because it involves addressing particular courts: when it comes to Crimea – one of the courts in Kyiv, when it come to Donbas – one of the courts specified by high specialized courts in the part of Donbas controlled by Ukraine.
The mentioned problems are confirmed by permanent representative of the President of Ukraine in Crimea who clarified the procedure of registration and issuance of child’s birth certificate in the following way. Thus, the procedure includes:
• addressing the nearest Department for State Registration of Civil Status of Citizens in mainland Ukraine and providing the necessary documents, namely a written statement, in cases established by law; passports of citizens of Ukraine of parents; marriage certificate; medical birth certificate (form 103/o);
• addressing the Kyiv Court of Appeal (including via postal mail) to establish fact of birth of the child in the event of denial the inhabitants of Crimea of issuance a birth certificate by the Department for State Registration of Civil Status of Citizens when the application does not satisfy the criteria specified by the laws of Ukraine;
• addressing the permanent representative of the President of Ukraine in Crimea to receive first-hand legal assistance.
Given the list of documents required for registration certificates is quite extensive, and there is a need to travel to mainland Ukraine one can consider such requirements an unreasonable burden for the exercise by citizens of their rights, and can be regarded a violation of Ukraine’s obligations.
At the same time, one can consider an option of going to court as the most appropriate one subject to proper application is filed. Therefore, this is the only way the residents of Crimea can receive Ukrainian child’s birth certificate as, for example, one is unlikely to receive a birth certificate (form 103/o) in Crimea. As it is repeatedly emphasized by human rights defenders the main difficulty is the fact that parents of newborns receive a birth certificate issued by a hospital in one copy under the procedure provided for by the Russian legislation.
Human rights activists also proposed to introduce a procedure for the automatic exchange of birth certificates (Russian for Ukrainian). It is obvious that this procedure would not only confirm the intention of parents to receive a Ukrainian certificate, but also the reluctance to have two certificates. Thus, the practice of Ukrainian courts in this regard is better.
For example, Zhytomyr district court of Zhytomyr region heard the case of issuance invalid under the laws of Ukraine (and international law) birth certificate in Yalta, the Republic of Crimea, the Russian Federation. The parents then addressed to the Department for State Registration of Civil Status of Citizens of Ukraine with a request to exchange the child’s birth certificate, but they were denied due to the lack of respective legal procedures in Ukraine. The court sustained the case holding that the lack of procedures for exchange of a birth certificate issued in the temporarily occupied territory of Ukraine and issued by de facto another state – the Russian Federation – can not be an obstacle to the registration of the child by Ukraine as born to the citizens of Ukraine in the territory of temporarily occupied Crimea.
Another challenging issue is obtaining a death note (establishing the fact of death triggers the procedure of inheritance, or granting of certain state financial assistance, e.g. on funeral). The practice shows that citizens who remained in the occupied territories have to solve their problems themselves.
For example, the Executive Directorate of the Social Insurance Fund for temporary disability in its letter dated 13 April 2015 № 5.2-32-841 partly clarified the issue of funeral allowance on the basis of a death note issued by the Russian judicial authorities in the territory of occupied Crimea. In particular, the clarification refers to Article 27 of the Law of Ukraine “On Mandatory State Pension Insurance” from 23 September 1999 № 1105 (hereinafter – the Law № 1105) in case of death the insured individual, and family members dependent on him funeral allowance is paid. Under Article 31 of the Law № 1105, the funeral allowance of the insured individual is paid to the family of the deceased or individuals who carried out funeral, on the basis of the death note. Also, to be eligible for a funeral allowance and to avoid double payment, one shall provide an extract on death from the State register of civil status acts of citizens. Thus, the documents issued by the Russian Federation in Crimea, have no legal force in Ukraine. Even if the deceased pursuant to the copy of the passport of a citizen of Ukraine sent to the body specified by the laws of Ukraine, his death note issued by the Russian authorities is invalid, does not create legal consequences in Ukraine, and does not provide for issuance of funeral grants pursuant to the Law № 1105.
Therefore, it is not only difficult to obtain the document itself, but also almost impossible to exercise a number of other rights and freedoms guaranteed by the state and provided for by this document.
In autumn 2015, a woman gave birth to a child in the occupied territories and appealed to the Galicia District Court of L’viv, with an application to establish the fact of birth. The Court considered the application, but the mother refused to re-register the child, referring to the fact that seemingly there were no documents to certify the birth of a girl as Ukraine does not recognize certificates issued at birth in the occupied territory. The DNA maternity test was required as the court has no formal opportunity to consider medical records that were obtained in the hospital of Crimea as evidence.
The above situation can be partially solved if the Parliament approves the draft Law of Ukraine “Draft law on amendments to the Code of Civil Procedure of Ukraine regarding ascertainment of the fact of birth or death in the temporarily occupied territory of Ukraine” № 3171 from 22 September 2015 (adopted in first reading on 5 November 2015). Draft law introduces the following provisions:
• to establish a fact of birth in the temporarily occupied territory of Ukraine, determined by the Verkhovna Rada of Ukraine, an application is filed by parents, relatives, their representatives or other legal representatives of the child to any court outside that territory Ukraine irrespective of the place of residence of the applicant.
• to establish a fact of death of an individual in the temporarily occupied territory of Ukraine, determined by the Verkhovna Rada of Ukraine, an application may be filed by any individual to a court outside the territory of Ukraine.
• cases on a fact of birth or death establishment of an individual are considered within 24 hours upon receipt of the relevant application by the court.
• court decisions on establishing a fact of birth or death of an individual in the temporarily occupied territory of Ukraine, determined by the Verkhovna Rada of Ukraine, are immediately enforced.
At the same time, human rights advocates emphasize that, although the provisions of the law are rather successful, there is a risk they will be poorly implemented in practice (in particular, 24 hours might not be enough for the Ukrainian courts to properly address the issue, in addition, the courts may require various kinds of evidence and construe the documents differently). In addition, it is unknown what provision the final version will contain. The best option would be to establish a state body and develop a simplified administrative procedure to carry out the respective functions on the occupied territories.
Pursuant to the National Strategy on Human Rights there is a need to ensure the rights of persons living in the settlements of Donetsk and Luhansk regions where state authorities temporarily do not perform or partially perform their duties. The mentioned document sets the following strategic goal: to ensure the exercise and protection of rights of citizens of Ukraine. In this respect the following outcomes are expected:
• the basic livelihood needs of citizens of Ukraine living in the respective settlements of Donetsk and Luhansk regions are provided;
• the adequate conditions for paying social benefits to such citizens are created, measures are taken to observe their rights to health care and education;
• a safe environment for a voluntary movement of such citizens to other regions of Ukraine is created;
• the access to justice for such citizens is restored and the crimes committed in the respective settlements of Donetsk and Luhansk regions are investigated.
Pursuant to the National Strategy on Human Rights the conditions of social adaptation of internally displaced persons at a new place of residence need improvement. It is also necessary to take efforts for facilitating their return to former place of residence. Another urgent problem is the need to provide resources for infrastructure rehabilitation in Donetsk and Luhansk regions. The mentioned document sets the following strategic goal: to ensure proper conditions for the exercise and protection of the rights and freedoms of internally displaced persons. In this respect the following outcomes are expected:
• the basic livelihood needs of internally displaced persons are provided;
• comprehensive measures are taken to support and maintain social adaptation of citizens of Ukraine who moved from the temporarily occupied territory of Ukraine and the area of anti-terrorist operation to other regions of Ukraine;
• social rights of internally displaced persons are observed and protected, their educational and other needs are met;
• conditions are created for the voluntary return of internally displaced persons to their the former permanent places of residence;
• efficient mechanisms for promoting the observance and restoration of rights and freedoms of internally displaced persons are introduced;
• international legal mechanisms for the protection of rights and freedoms of internally displaced persons are used.
However, in practice, the nature of aforementioned strategic goals is declarative.
An example of the poor efficiency of the current system of social security is a failure to meet economic responsibilities on the part of Ukraine that is illustrated by stopping paying of social benefits in the occupied territories. This decision does not take into account respective court decisions. In particular, in October 2015, the Supreme Administrative Court left in force the decisions of previous instances on the necessity of settling social payments in the territories of Luhansk and Donetsk regions which are under the control of the so-called Donetsk People’s Republic and Luhansk People’s Republic. And in April, the Kyiv Appeal Administrative Court ruling which revoked the decision of the Cabinet of Ministers of Ukraine to halt the payment of pensions and benefits to residents in the ATO zone took effect. Thus, such actions of the Ukrainian authorities are a clear violation of human rights.
Another example of human rights violations and backtracking of the state on its commitments in respect of its citizens is a problem with access of persons in the occupied territories to information (in fact, a violation of the right to information). In particular, broadcasting of Ukrainian TV and radio has not been resumed in the territories not controlled by Ukraine, and informational materials and newspapers distributed there are prepared exclusively by volunteers or residents of the occupied territories. That points to the state’s reluctance to provide its citizens with accurate information about the situation in Ukraine.
Right to life, liberty and security.
Despite the truce, in the period from 16 February to 15 August 2015, 261 civilian casualties were recorded on the Ukrainian Government-controlled territories of Donetsk and Luhansk (71 deaths and 190 injured).
In addition, there are allegations of unlawful detention carried out by Ukrainian law enforcement and security entities (mainly the Security Service of Ukraine) and military and paramilitary formations (primarily former volunteer battalions, now officially included in the Armed Forces of Ukraine, the National Guard, and police).
These cases are often accompanied by torture and ill-treatment, and violation of procedural rights. To remedy this situation with violations of fundamental human rights proper and timely investigations into every case and bringing perpetrators to justice are required. To stop such practices Security Service of Ukraine, Ministry of Internal Affairs and Ministry of Defense should promote human rights trainings of its employees. Among flagrant violations of human rights, the cases of arbitrary and unlawful detentions related to the mobilization to the Ukrainian Armed Forces (particularly in Kharkiv, Mykolaiv, and Odessa) are also documented.
As proven in detail above, Ukraine is not fulfilling its responsibilities in respect of citizens who remained in uncontrolled territories, which is recorded by human rights organizations, in particular by the Ukrainian Helsinki Human Rights Union. Children, people with disabilities and the elderly are among the most vulnerable groups of the civilian population in the anti-terrorist operation (‘ATO’) zone. Since the government of Ukraine did not ensure the timely evacuation of children from orphanages, people with disabilities and the elderly, their lives and health were under threat. Many of them do not have the required medication or even sufficient food and water.
According to the Representative of the Commissioner for implementation of the national preventive mechanism Yuri Belousov, Ukrainian authorities do not seem to care about 77 institutions in Donbas with individuals under protection – psychiatric hospitals, orphanages with the elderly, children and people in institutional care. Thus, one can point to the violation of Ukraine’s obligations to ensure the right to life.
Cases of the police abuses and violence against citizens in Ukraine are still recorded. Though the authorities constantly declare the reform of the law enforcement, the average Ukrainians do not experience significant changes.
In 2015 Prosecutor General of Ukraine (‘PGU’) reported initiation of 1.096 criminal proceedings under Article 365 of the Criminal Code of Ukraine (‘CCU’) (abuse of powers or official misconduct), 60 of them were initiated under Article 365, para. 3 (abuses with grave consequences). Released data raise serious concerns as since 2014 there were 1326 such offenses recorded, 79 of which – with serious consequences. It should be taken into account that not all cases are respectively recorded in the official statistics, therefore the actual number of such illegal actions is difficult to establish.
The Ukrainian Helsinki Union for Human Rights reports on the following example of the above illegal actions of the law enforcement agencies.
The case of a flagrant violation of human rights by the law enforcement officers occurred in the Kharkiv region. Thus, according to available to the human rights defenders information, police officers in the Solonitsevka village of Dergachi district of Kharkiv region illegally collected money from metal items scraping. When some guys witnessed them the police officers decided to scare the minors and locked them in a garage. When children phoned their parents, and the latter rushed to rescue them, there was a clash between them and the police officers which ended in a brutal beating up of the parents. As the press service of the Prosecutor office of Kharkiv region informs, in the result of the incident, 42-year-old father of one of the boys was hospitalized with a diagnosis of “closed head injury, bruised chest and back.”
Cases, where violations of the rights to life and security out of motives of national, racial or religious hatred take place, are especially dramatic for the European countries. Unfortunately, in January-June 2015, only 20 such crimes were respectively recorded.
The Ukrainian Helsinki Union for Human Rights reports on the following situation:
A terrible attack on a citizen of Tajikistan in the vicinity of the metro station “Science” took place on 18 June 2015 around 10 p.m. in Kharkiv. The young man rushed to the mosque. In the narrow passage in front of his apartment buildings, he was surrounded by a crowd numbering 10-15 people – all young boys under the age of 20 in typical for “skins” rolled up pants. One of the attackers grabbed Mr. M. by the arm and cried, “We stab non-Russians to death!” Then they started to beat him up and one of them pulled out a knife. Desperate cries of the victim caught the attackers aback and they rushed away. However, the latter managed to splash a tear gas in their faces. In the result of the incident the victim received a bump on the head, bruised eye and brow eye. He was fortunate survive.
Another manifestation of violence, which threatens the security of citizens, is taking over of the administrative buildings for the purpose of political pressure.
For example, in late January 2015 aggressive young men led by former deputy Vladislav Stefan stormed the City Hall of Kryvy Rih. They broke into the session hall and took over the building. At that time, there were about 40 police officers in the building but they could not stop the attackers. The protesters demanded the lustration of the mayor and deputies.
It is obvious that such actions violate the right of individuals to safety and security, and any violence potentially jeopardizes the right to life. However, the mentioned example was not isolated what makes it, even more, dramatic; in addition, law enforcement bodies often ignore such cases, which forms the basis for the repetition of human rights violations in the future.
For example, in November at the session of Cherkasy Regional Council, the “Right Sector” representatives occupied the tribune and criticized the new government, demanding the resignation of the President of Ukraine and Prime Minister of Ukraine. In fact, violations of procedural rules and abusive use of force to prove one’s point become commonplace. Moreover, the “Right Sector” activists were armed in violation of the laws of Ukraine (they even did not try to deny this fact), thereby creating a potential threat to all those present at the council session. The “Right Sector” representatives made their intentions very clear: one of the fighters (with the code name Nymyrny) made the following statement:
“If you steal my freedom away from me, you will be executed in the name of national patriotic revolution!”
He also spoke openly about secret divisions and centers he created to “fight the regime.” These facts confirm that the right to life and security are breached in Ukraine today, and the rule of law is replaced by the rule of force.
The obligation of the state to protect life
States should not only refrain from the intentional and unlawful taking of life, but also take appropriate steps to safeguard the lives of those within their jurisdiction, in particular by putting in place effective criminal-law provisions backed up by law-enforcement machinery, which is set out by the ECHR and confirmed by the ECtHR practice.
The clashes outside the Verkhovna Rada of Ukraine on 31 August 2015 became an example of the aforementioned negligence of the state. The fighting erupted as lawmakers considered the legislation aimed at expanding autonomy for territories. Some protesters started to attack the building of the Verkhovna Rada guarded by law enforcement officers; in confronting the policemen the demonstrators launched a combat grenade at the police cordons. In the result of the clashes, 4 soldiers of the National Guard of Ukraine were killed, 179 people sought medical help.
The reaction of human rights organizations
The above-mentioned situation brings the violations of rights to security and freedom at another level. In particular, on October 29, the report by human rights organizations “Events in front of the Parliament on 31 August 2015: through the lens of human rights” was presented.
While analyzing the actions of the authorities the human rights defenders arrived at a striking conclusion: the actions of politicians today and those in the time of the Maidan are equivalent. In other words, the politicians who allegedly fought for the rights of people and were appalled by the actions of their predecessors when removed them form their offices while cleansing the government, arbitrarily violate human rights themselves.
In addition, Chair of the Association of Ukrainian Human Rights Monitors on Law Enforcement Oleg Martynenko underscored:
These incidents illustrate the failure of the authorities to ensure its citizens the right to life and adequate security.
Rights and fundamental freedoms
“Thistle of the Year” anti-awards for worst human rights offenders which are annually given by the Ukrainian Helsinki Human Rights Union are quite telling. The 2015 “laureates” became the authorities involved in violations of rights and freedoms of Ukrainians.
The aim of the anti-award is to draw the public’s attention to flagrant violations of human rights during the year and to stimulate public discussion on trends jeopardizing human rights in the domestic legal system. This most questionable honor is traditionally awarded to the gravest violators of human rights and fundamental freedoms on Human Rights Day, 10 December.
Among the laureates, there is National Bank of Ukraine (‘NBU’). Jury member of the All-Ukrainian anti-award “Thistle of the Year” Larisa Denisenko explained the choice by the decision of the NBU which discriminated a large group of persons residing in Crimea and Sevastopol. National Bank of Ukraine recognized them non-residents, and as a result internally displaced persons and other people could not open accounts in Ukraine and enjoy other rights. Moreover, Ms. Denisenko labeled member of the Parliament (‘MP’) Konstantin Mateychenko a brutal violator of human rights for his alleged “dangerous legislative initiative.” The submitted draft law provided for criminal liability for criticizing the government.
“Every one of us could be discriminated on the grounds of expression and beliefs which would make the profession of a journalist meaningless. It would affect volunteer and human rights movement,” said the human rights activist. Thus, not only the representatives of Ukrainian authorities fail to ensure the protection of human rights, but also violate those rights themselves.
Freedom of movement
The Temporary order of 21 January 2015 regulates movement into and out of the ATO zone and requires that all persons and transport vehicles entering or leaving the ATO zone possess a special government-issued permit. The Temporary Order and its implementation through a permit system to cross the contact line and pass through the Government controlled check points, has been one of the major challenges for people living in the conflict-affected areas of Donetsk and Luhansk regions.
According to human rights organizations, the Temporary order:
• does not include an option for leaving on security reasons;
• contradicts the Constitution of Ukraine which establishes that restrictions on freedom of movement may only be established by law;
• impeding the right of civilians to vacate areas where the intensity of fighting and shelling endangers their lives violates international human rights law;
• leads to isolation of civilians, impeding their access to medical care and social benefits and disrupting family links, with no clear benefits in terms of security.
In addition, because of long queues, people often search for corridors and roads where the risk for exposure to ERW and IED is the highest. For example, on July 22, a woman was killed in a landmine blast in an attempt to pass checkpoint near the town of Volnovakha (Donetsk region).
The situation of people residing in the area between the contact line and the first checkpoints in the area controlled by the Government remains unduly complicated. They have to apply for permits required to cross the contact line, or prove that their village belongs to the areas controlled by the Government. Entry/exit through checkpoints often depends on the familiarity of the soldiers with the area.
The right to privacy and access to information
There is a generally recognized balance between the right of people to information and access to information and the right to privacy and personal data protection.
Human rights organizations – Ukrainian and international – have repeatedly drawn attention to the inadequate legislation of Ukraine in the field of information and its internal contradictions. However, the disregard for these human rights resulted in serious consequences related to the right to life.
The presented by Anton Gerashchenko Myrotvorets (“Peacemaker”) website raises serious concerns. This is a platform on which various contributors created a list of people (with their personal data) who are allegedly related to the armed groups and labeled as “terrorists” to facilitate the work of the police and Security Service of Ukraine.
Unfortunately, the content of the site does not correspond to its name, because it is aimed at the incitement of enmity and hatred instead of peacemaking. The list violates the presumption of innocence, right to privacy and personal data protection.
The murder of former MP Oleh Kalashnikov and journalist Oles’ Buzina with their personal data being published on the “Peacemaker” website as persons suspected of separatist publications and promoting foreign aggression casts a shadow on the purpose of the website. However, ‘against all odds’ and warnings of human rights defenders the site has not been shut down.
In particular, the Ukrainian Helsinki Human Rights Union considers publication of personal information on the “Peacemaker” website a violation of human rights on data protection. Head of the Ukrainian Helsinki Human Rights Union, Mykola Kozyrev, made a statement that “The Union considers publication of personal data without person’s consent absolutely unacceptable. It is clearly a violation and it should be investigated by respective law enforcement agencies.”
Ukrainian ombudsman, Valeria Lutkovska, was confident that the publication of personal data on the above-mentioned website violates human rights. Furthermore, she insists on respective amendments to the legislation that would allow law enforcement agency in case of unlawful processing of personal data, blocking the work of a site, no matter where the server is located. Unfortunately, neither criticism of human rights nor the dramatic consequences of the working of this resource have stimulated its creators to bring the work of the resource into legal terrain.
It is important to note that Article 8 of the ECHR enshrines that:
Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The corresponding Article 32 of the Constitution of Ukraine was construed by the Constitutional Court of Ukraine (case №1-9/2012 dated 20.01.12) indicating that the information on personal and family life – is any information and/or data on non-property relations, circumstances, events, relationships, etc., related to the person and his family (except for certain information about public officials and local authorities). Such information is confidential. The mere storing of data relating to the private life of an individual without his consent amounts to an interference and is not permitted for both individuals and legal entities. This approach is confirmed by the practice of the ECtHR, in particular, the judgment in case M.S. v Sweden dated 27 August 1997 and the case X v Finland dated February 25, 1997. The Court indicates that “disclosure of personal data can have devastating consequences for the private and family life of a person and for his social and professional status, exposing him to dishonor and danger.” Therefore, the “Peacemaker” website also casts doubt on whether Ukraine adheres to its own international obligations.
Just end does not justify unlawful means
Calls for illegal storing of information and creation of relevant databases have become very common in connection with an investigation into Maidan crimes in 2013-2014. However, just end – punishing of guilty – does not justify unlawful means.
Moreover, once again the presumption of innocence is eroded, and civil society replaces the public authorities in areas where the state is a guarantor of the rights of all citizens. In particular, a threat of public involvement into the investigation may lead to a parallel civil litigation.
In fact, no one can guarantee that occasional threats of the lynching of guilty will not be turned into reality. Thus, non-systematic prima facie abuses of the right of people to privacy and protection of personal data pose a real threat to guaranteeing individuals the right to a fair trial and even the right to life. That is why all violations in the information sphere should be investigated by law enforcement authorities as demanded by defenders of human rights.
Freedom of expression
Today the right to exercise freedom of expression is still limited in Ukraine. There are also cases of censorship. Human rights organizations continue following the case of the journalist Ruslan Kotsaba who faces constant threats in addition to pressure on the court.
Another problem is the unwarranted cruelty to political opponents and radical response to the arguments of people who have been elected legitimate representatives of the citizens of Ukraine. One of the most notorious examples is ‘rubbish container lustration’ incidents when forcible pressure is applied to persons who have not been prosecuted in a court of law.
However, the law enforcement authorities have neither ensured the safety of those individuals nor conducted a proper investigation of these offenses. While the government completely disregards the mentioned human rights violations, the civil society, and human rights activists condemn them. For example, the chief editor of “Ratusha” Nikolay Saveliev, gave the following comment on the situation:
Today’s ‘rubbish container lustration’ tomorrow can evolve to murders. Specific restrictions are necessary because if we as MPs vote for unpopular laws we may find ourselves in the rubbish containers ….
However, the lack of adequate response from the authorities encourages the continuation of respective human rights violations. For example, in April 2015, Carpathian lawyers wrote a petition to the President of Ukraine, Minister of Justice, Attorney General and Minister of Interior with a call to bring to justice the “Right Sector” activists who had thrown the chief of justice in the western Ukrainian region of Ivano-Frankivsk Vasyl Kavatsyuk into the trash.
The lawyers also demanded to give a proper assessment of law enforcement bodies that did not intervene in the situation and committed a crime against him. However, the “Right Sector” did not take lawyers’ opinion into account acting hostile. In particular, activists led by the leader of the regional “Right Sector” announced that they believe lawyers appeal to be a squeal, and an attempt to split the society. The “Right Sector” promised to continue such actions:
Therefore, the Right Sector pledged to go on with ‘people’s lustration’ until the corrupted criminal system is eliminated. We expect the community to understand us and give us full support!
Thus, such human rights violations become systemic in Ukraine and raise questions about the effectiveness of public institutions and their ability to establish and maintain order.
There is pressure and attempts to introduce censorship on those media that publish opinions alternative to the official ones. An illustration is the case of the “Vesti” newspaper and “112” TV channel.
At the same time, in June 2015, an MP and member of the parliamentary committee on freedom of speech and information Yuriy Pavlenko stated that, unfortunately, recently the independent media and journalists have become subjects of regular raider attacks. In order to establish censorship, crackdown freedom of speech and democracy in the country the authorities resort to various methods. It can be noted that the mentioned situation was not isolated and affected a lot of people. For instance, in October 2015 Savik Shuster mentioned that six tax inspectors brought a notification on the planned audit of his studio, which also can be regarded as pressure on freedom of expression.
The incident when on November 16 Mayor of Gluhiv Michel Tereshchenko personally forced editor of “Nedelya” newspaper Oksana Kovalenko out of the session without any explanation is a bright example of violations of freedom of expression and access to information. At the same time, other journalists were allowed to be present at the session what directly points to the selective attitude to the media. Such actions of local government are in violation with the Constitution of Ukraine, Laws of Ukraine “On Information”, “On Print Media (Press) in Ukraine”, “On the Procedure of Coverage by the Mass Media of the Performance of State Authorities and Local Self-government Bodies in Ukraine”, “On State Support for the Mass Media and Social Protection of Journalists” and other laws, providing for the guarantees for the media.
This situation caused outrage in the journalist, public and political circles. In her turn, Chairman of the Verkhovna Rada Committee on Freedom of Speech and Information Policy Victoria Syumar made the following comment on the above events:
Journalism is not an ordinary profession; millions of people see the world through the eyes of journalist. I want to remind officials that they can and should bear criminal responsibility for obstructing the work of journalists in accordance with Article 171 of the CCU.
Accordingly, the initiation of criminal proceedings may be considered the only positive outcome of the mentioned incident. At the same time, this incident may also be regarded as a negative example to follow for other local government.
Sanctions against journalists
Another example is sanctions against a number of independent western journalists. By his decree Petro Poroshenko enacted the decision of the National Security and Defense Council (‘NSDC’) of September 16, which introduced an expanded list banning journalists who ‘threaten national interests’ from the country.
There was a barrage of criticism over the ban. The New York-based Committee to Protect Journalists said in a statement that it is “dismayed” by Poroshenko’s actions, which extends the sanctions for at least 41 journalists and bloggers. Poroshenko was requested to cancel the decree on sanctions against journalists by the OSCE Representative on Freedom of Media Dunja Mijatovic and several organizations including “Reporters without Borders.”
The Representative of “Reporters without Borders” Christoph Drayer commented on the situation:
We are appalled by this ban, which represents an absurd, counter-productive breach of freedom of information. In addition, it is unclear why the British journalists from the BBC and a German journalist Michael Rutts were put on the list.
The latter also did not understand how he ended up on the list, as he had never reported on events in Ukraine. Although in less than a day after the enacting of the decree, which introduced sanctions against around 400 people, including a number of Western journalists Petro Poroshenko changed his mind, a violation of journalists’ rights at the international level still took place. A spokesman for P. Poroshenko’s administration Yarema Dukh later explained that the President ordered to remove journalists from the UK, Spain, and Germany from the list.
“Given the significant public interest and strategic importance of relations with the European Union, the National Security and Defense Council of Ukraine supported the proposal of the President,” – states a brief press release of the NSDC. It should be noted that this press release does not touch upon the issue of human rights, making the emphasis solely on political expediency. In other words, it seems that authorities’ backtracking on sanctions which arbitrarily violate journalists’ rights was guided by the public pressure, and not general respect for human rights and the rule of law.
Journalistic investigations (e.g., “Telekritika” monitoring for the period of July – October 2015) is another illustration of violation of the rights of journalists. The monitoring cites an example of an incident involving journalists and those who should be responsible for their safety: while filming the car park in the yard of one of the buildings of the Security Service of Ukraine from the street the shooting team of the program “Skhemy” were attacked and detained by a Security Service agent. When the story was broken, the journalists were released, but later they were threatened and demanded not to put the filmed materials about their car park that they had filmed on the news.
Numerous cases of violence against the members of the opposition, including, ones in the building of the Parliament are recorded. However, such dreadful cases are not investigated into.
Yet another illustration of the mentioned violations is the case when Opposition Bloc MPs Vadym Novinskyi, Oleksandr Vilkul, and Nataliia Korolevska were summoned by law enforcers at a session of the coordination board of the Parliament of Ukraine in November 2015. Albeit later there turned out to be no evidence of the commission of any crime by these individuals the fact of the pressure on the opposition to limit freedom of expression in Ukraine is self-evident.
Freedom of peaceful assembly
One can be positive that the freedom of peaceful assembly is better ensured in Ukraine today. At the same time, some local councils have decided to restrict the freedom of assembly in violation of the Constitution of Ukraine, which allows only law based restrictions on rights and freedoms.
As of mid-June 2015, such restrictions were introduced in 33 cities and towns of Ukraine, while some of them were found illegal by court decisions. The USAID Ukraine project “Citizens Action”, for example, is currently working on a number of cases concerning the abolition of city councils provisions that limit the right of citizens to peaceful assembly. As of June 2015 Office of The Ukrainian Parliament Commissioner for Human Rights, together with non-governmental organizations canceled similar discriminatory regulations in 14 cities.
During its 22 May 2015 session on hearing cases of the mentioned category, the Plenum of the Supreme Administrative Court of Ukraine decided to appeal to the President of Ukraine, Verkhovna Rada of Ukraine, Cabinet of Ministers of Ukraine on the need for legal regulation of the right to peaceful assembly. Unfortunately, the coalition has not initiated any changes in this regard.
According to the General Prosecutor’s Office of Ukraine, 13 crimes under Article 340 of the CCU were recorded (illegal interference with the organization or holding of assemblies, rallies, marches, and demonstrations). Six persons were respectively held suspect.
Direct violations of freedom of assembly
Human rights activists and the public also recorded a number of direct violations of the freedom of assembly. For example, on 6 October 2015, in Kyiv the police forcibly dispersed the activists of “Financial Maidan” who organized a protest at the Bessarabska square. Expressing their disagreement with the actions of the Ukrainian government protesters blocked traffic by marching along the pedestrian crossing. In terms of the traffic rules, the actions of the protesters were lawful as moving across a pedestrian crossing is allowed. However, the authorities were not satisfied with the very protests. The police squad arrived and started aggressively pulling people from the pedestrian crossing.
There are frequent cases of impeding the exercise of the right to peaceful protest by the government. The draft law №2651 “On introducing amendments to the Criminal Code of Ukraine concerning Bribery of a Participant of a Public Event” is yet another example.
A human rights activist Michael Lebed’ was concerned about the mentioned legislative initiative of the ruling party representative and the criminalization of citizens’ right to peaceful meetings, rallies, and demonstrations:
I am not sure whether the adoption of this draft law will seriously affect the number of paid rallies (especially pre-election rallies of the largest parties that control the police). But the organizers of non-paid public meetings will be forced to prove that they are not four-legged when accused of being bribed by the police with fabricated evidence against them on top of that.
The law enforcement agencies mentioned the strengthening of legislative control over peaceful assemblies following the tragic events of August 2015 at the building of the Parliament.
Economic and social rights
More than 1.4 million internally displaced persons throughout Ukraine continue to face obstacles in the exercise of economic and social rights. In addition, the conflict has negatively affected the overall economic situation, resulting in the suffering of the population throughout the country. Compared to December 2014, real incomes decreased by 23.5%, while consumer prices climbed up by 40.7%. The unemployment rate reached 10% while wage arrears amounted to UAH 1.9 billion (about USD 87 million).
According to a survey conducted by the International Organization for Migration, published on 30 July 2015, Ukrainians are increasingly vulnerable to threats of human trafficking. Survey results indicate that about 3 million people in Ukraine are going to look for work abroad. Due to the deteriorating economic situation and the conflict, they usually tend to ignore the conditions of employment contracts.
The level of wage decline is appalling. Thus, according to the annual survey of the market for the period of fall 2014 – fall 2015 conducted by the international consulting firm Hay Group for the “Novoye Vremia” periodical wages in the country decreased on an average by 32%, if calculated in the US currency.
All categories of employees faced the decrease. Thus, the average annual salaries of chief executive officers in Ukraine decreased from USD 59.6 thousand to USD 55.4 thousand, marketing directors – from USD 32 thousand to USD 23 thousand, top HRs – from USD 26.8 thousand to USD 22.5 thousand and account managers – from USD 11.3 thousand to USD 7.5 thousand per year. The employees of other levels experienced the same decreases.
The research of information-analytical center Info-Light indicates that following the economic crisis of the 90’s and until 2015 in Ukraine, there was an increase not only in the nominal wage but also in real, which is also indicated by minimum wage dynamic in relation to the dollar. The only exception was 2009 economic crisis when the dollar rose from UAH 5 to 8.
The biggest increase in wages in dollar equivalent was almost 30% in 2007. With nominally stable hryvnia in 2005-2008 and 2010-2014 the minimum wage reached its maximum – USD 152 in the beginning of 2014 (1218 UAH at the rate of 7.99 UAH/USD) for the first time in the history of Ukraine. However, last year the situation has radically changed. At the beginning, the minimum wage plummeted to USD 77 and on March 1 reached its minimum in currency for the last 12 years – USD 43.8.
According to the latest public opinion polls, over 61% Ukrainians point out the reduction of their income over the last six months. 54% of respondents note that inflation is a negative factor which affects their lives. Over 56% of respondents confirm that with such level of salaries they have already started to save on food to survive.
In its 2014 report, the Ukrainian Helsinki Human Rights Union set negative trends in salaries in dollar equivalent. It was found that, despite the fact that the minimum wage is a state social guarantee its legally specified level is insufficient to ensure the expanded reproduction of labor because it ignores such indicators as family expenses (the cost on child support and education) and tax (compulsory payments – social insurance and income tax for individuals). For example, as of 1 January 2014 the minimum wage was UAH 1218, which is 38.7% of the average salary for the previous month (UAH 3148), and in dollar equivalent (USD 1/7.99.) allowed spending almost USD 4.9 per day for one person (threshold – USD 5.0 PPP per day).
The right to adequate standard of living
The permit system introduced through the Temporary Order on 21 January by the Security Service of Ukraine continued to significantly limit the freedom of movement across the contact line of food supplies and medical supplies to areas controlled by armed groups – including travel restrictions have contributed to delays in the delivery of humanitarian aid, including medicines and medical equipment, resulting in a shortage of supplies and limited access to health care for civilians living in non-government controlled areas. Several civil society organizations operating in conflict-affected areas have experienced challenges in obtaining permits and crossing checkpoints (either government or non-government controlled) when trying to deliver aid to those in need in “DPR”-controlled territory. The delivery is often denied or delayed with no reasonable explanation
According to UNICEF, up to 1.3 million children and adults are faced with a serious problem of access to potable water because of damaged or destroyed water lines and the severe shortage of water in areas affected by the conflict in eastern Ukraine.
The right to social security
The resolutions of the Government of Ukraine in 2014 suspended allocations and disbursements from the State budget (including social payments) to the territories controlled by armed groups. Thus, the rights to social protection of persons who continue to live there are violated.
As of August 15, out of 1.126 508 registered families of internally displaced persons, 455.566 received financial assistance from the Government of Ukraine. The precondition for obtaining financial assistance is registration with the Ministry; available reports suggest that some IDPs still face problems with obtaining registration. In particular, this relates to people moving within the Government-controlled areas of Donetsk and Luhansk regions to a safer location away from the contact line.
Right to a fair trial and punishment of criminals
The reform of the judiciary is not yet complete in Ukraine, thus, the citizens continue to suffer from the arbitrariness of the judicial system. For more than a year, the lack of protection and justice for victims and the impunity of perpetrators have prevailed in Ukraine. Accountability for gross human rights violations committed during the Maidan protests and eastern Ukraine are pending.
The violence on 2 May in Odesa
Accountability for gross human rights violations committed in the 2 May violence in Odesa, when 48 persons died, 6 – were shot dead, 32 – died from the effects of the fire in the Trade Unions Building, 10 fell to their deaths. There were seven women and one minor among the dead. There was a confrontation between different groups of protesters and political activists in the city centre, and later the activists began to retreat to the Kulykove Pole square. Clashes at the Kulykove Pole square cost the lives to about 40 anti-Maidan activists with most of the victims were, in particular, in the Trade Unions Building, which was set on fire.
Moreover, even though international institutions drew Ukraine’s attention to the necessity to investigate the above-mentioned events in Odessa more thoroughly, in practice, there is constant interference of activists in the investigation process, which now is hardly independent. The latest example is when in November 2015 the panel of judges in charge of the May 2 case was forced to resign.
Earlier, a group of the “Right Sector” representatives had blocked the courtroom of the Malinovsky District Court, and forcing judges to write a letter of resignation because they had agreed to release on a bail of half a million hryvnia five “Kulikove pole” activists accused of organizing riots in Greek Square on May 2, 2014. The Malinovsky District Court of Odesa prolonged for two months the arrest of 5 persons in custody for clashes in the city centre, for the first time with a right to bail. Thus, the activists do not create even an illusion of an independent investigation; there is a pressure on the court and violation of the rights of detainees.
Overall, the tragic events in Odesa resulted into three investigations. Two official investigations have been initiated to look into the 2 May violence in Odesa, one by the Ministry of Internal Affairs and the other by the Office of the Prosecutor General. There is a criminal investigation into the negligence of the fire department, the mass disorder in the city centre and at the Trade Union Building. However, these investigations are widely believed to be unreliable (they do not meet the requirements of the ECHR), particularly because of the inability or unwillingness of law enforcement bodies to bring to justice those responsible for the violence, which was inter alia confirmed in the report of the International Advisory Panel of the Council of Europe.
Thus, the purpose of the investigations is not bringing perpetrators of crimes to justice; the state does not guarantee an independent and prompt investigation process and does not protect judges from pressure. The rights of judges, suspects, victims and relatives of the victims are violated and the state seems not to care at all.
Winter 2013-2014 protests in Kyiv
No significant progress has been achieved to bring perpetrators of winter 2013-2014 protests in Kyiv to account.
At the same time, being willing and able to thoroughly investigate into the cases, the inaction of the authorities is suspicious, as if something is hidden, which inevitably radicalizes society. According to the poll conducted by the Kyiv International Institute of Sociology upon the ZN.ua request, 45.1% of Ukrainians named the government interest in non-solving of crimes the main reason of high-profile crimes committed during and after the Maidan being unresolved. The residents of Odesa largely influenced the mentioned figures (65.3% of respondents expressed the above position), which is not surprising, taking into account the above facts of the course of investigation into the events in Odesa.
The show trials of security forces servicemen in respect of winter 2013-2014 events is the evidence of selective justice when the presumption of innocence and the principle of personal responsibility are disregarded. In particular, former Berkut special police force officers Sergii Zinchenko and Pavlo Abroskin accused of killing 39 Euromaidan activists claimed the lack of evidence in the case to prove their guilt.
The lawyer of Abroskin Oleksandr Horoshynsky said that his client admitted being on Institutska street on 20 February but denied any involvement in the shooting of protesters. The lawyer claimed that the Prosecutor General’s Office had no evidence that, at least, one shot was made and, at least, one person killed from the service weapon which was assigned to Abroskin. He also admitted he feared there would be no fair trial and believed that demanded sentence to life imprisonment was excessive. The purpose of these cases is not bringing responsible for the killings of protesters to justice but working on the positive image of the new government. Therefore, both the rights of victims, their relatives, and the rights of suspects are violated including the right to liberty and a fair trial.
Another significant problem noted by human rights organizations is a lack of uniformity in the qualification of similar crimes. While in certain cases members of the armed groups were accused under Article 258, para. 3 (participation in a terrorist group or terrorist organization), in other cases courts found them guilty under Article 260 (participation in the illegal paramilitary or armed formations) of the Criminal Code of Ukraine, emphasizing that neither ‘Donetsk people’s republic’ nor ‘Luhansk people’s republic’ were recognized as terrorist organizations under Ukrainian legislation. Although in both types of cases perpetrators were sentenced for the same crime, i.e. participation in the armed groups, those found guilty under Article 258, para. 3 were sentenced to longer terms of imprisonment than those accused under Article 260 of the CCU.
Non-fulfilment of court decisions
Another issue is the enforcement of national court decisions in Ukraine. According to the Ukrainian Helsinki Union, statistics shows that 95% judgments of the ECtHR and about 70% judgments of domestic courts are not satisfied in Ukraine. This means that the right of Ukrainians to a fair trial is permanently violated. Especially if the state is a debtor.
Among the reasons for such a situation, the human rights activists call a moratorium on the sale of state enterprises’ assets, the lack of proper control over the execution of the court judgments and the lack of effective judicial protection of property rights.
The right of access to a court is questioned by many human rights defenders due to adoption of the Law of Ukraine “On Amendments to some legislative acts of Ukraine regarding the Payment of Court Fees” which substantively increased fees rates. Lawyers and human rights activists refer to Article 3 of the Constitution, which stipulates that human rights and freedoms, and their guarantees determine the essence and orientation of the activity of the state.
It is clear that most of the directly applicable rights provided for by the Constitution: the right to housing, education, health protection have become empty declaration due to miserable living conditions of the population. The court fee rate increase is most likely to deprive the people of the right to trial. For instance, to file an appeal to the administrative court one is required to pay a court fee of UAH 551. It should be mentioned that on top of that judges receive salaries from people’s taxes and often delay judgments. In other words, people de facto lose access to court.
Ukraine’s derogation from its obligations
On 5 June 2015, the Government of Ukraine notified the Secretary-General of the United Nations and the Secretary-General of the Council of Europe on Derogation from Certain Obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. Ukraine exercised the right of derogation Due to the annexation and temporary occupation by the Russian Federation of an integral part of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – as a result of armed aggression against Ukraine, the Russian Federation is fully responsible for respect for human rights and implementation of the relevant treaties in annexed and temporary occupied territory of Ukraine.
The proposed derogation from State obligations envisaged in relation to the right to liberty and security, fair trial, effective remedy are not permitted by ECHR, which is fairly noted by the United Nations Human Rights Committee.
This decision will have a negative impact on the exercise of human rights in some Donetsk and Luhansk regions and the overall level of respect for human rights in Ukraine.
Right to vote and to be elected
On 14 July 2015, the Parliament of Ukraine adopted a law “On Local Elections” which will be first applied to the nation-wide local elections. An individual will only be able to vote in his or her place of registration. This means that IDPs will not be able to vote in their place of displacement, which will de facto prevent many of them from taking part in the process. According to Principle 22 of the UN Guiding Principles on Internal Displacement, IDPs have the “right to vote and to participate in government and public affairs, including the right to have access to the means necessary to exercise this right”.
Expert on IDPs problems, Institute for Social and Economic Studies Tetyana Durnyeva expressed the following opinion on the election results in respect of IDPs voting:
Violation of equality and non-discrimination principles
On November 16, the International Day for Tolerance, the Coalition for Combating Discrimination in Ukraine (CCD) published the names of people and organizations that most grossly violated the principles of equality and non-discrimination during the year. The winners got special “prize” for their discrimination activity – the blinkers (symbolizing their narrow-mindedness and tunnel vision). The winner of “Discrimination-In-Law” nomination was Verkhovna Rada of Ukraine that deprived more than a million of internally displaced people of Donbas and Crimea of their right to vote in local elections of 2015. Despite having several legislative drafts registered, the Parliament did not adopt the document that would allow internally displaced people to vote.
In addition, although human rights groups welcomed the provisions of the aforementioned law promoting leveling of gender discrimination it should be noted that currently there is no proper responsibility for their violation because in they are not enforced in practice.
Worth mentioning that National Human Rights Strategy, at least, declares the necessity to address the aforementioned shortcomings and violations.
Thus, the observance and enforcement of human rights should be improved in Ukraine. The statement of the Ukrainian Helsinki Union should be mentioned in this respect:
Also, it is important to reiterate that it is impossible to create a law-bound state by resorting to illegal methods; the rights of one person end where the rights of another person’s rights begin. Besides, the equality of all citizens, tolerance to people of other beliefs and views are key values of any European state.
Any deviation from these principles, whatever we call it will make no good and is unacceptable. After all, achieving the goal by all means has nothing to do with the rule of law; in the case of Ukraine, it backtracks on its main goal – to enforce the rule of law and observe human rights and freedoms of all citizens and other individuals under its jurisdiction.
Systematic nature of human rights violations in Ukraine proves that a new approach in state policy is required. It is important to start building Europe in Ukraine and refuse from the rule of power, unlawful pressure on opponents, creating preconditions for violation of human rights and freedoms, undermining the rule of law.
The building of a democratic, tolerant and peaceful Ukraine should unite all political forces and Ukrainian society. The government should go beyond a superficial and declarative human rights protection. Human rights should be ensured by means of clear, transparent and comprehensive legislation.
Devotion of all Ukrainians to the rule of law and order will not only preserve Ukraine’s unity but also lay the foundation for its future prosperity.