Report Abstract: HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN UKRAINE: OLD AND NEW CHALLENGES
02.12.05 | Yevhen Zakharov
The report compares the state of affairs with regard to human rights over the ‘Kuchma era and in 2005. Interrelated trends are considered which defined the ever more flagrant violations of human rights under the 10 years of Kuchmas regime, with a brief analysis of the same trends in 2005.
1. Administrative pressure applied by the State
This consistently intensified with the desire evident to regimentalize life in all spheres, although especially economic, this significantly limiting freedom of the individual. People became increasingly vulnerable and dependent upon the State machine, and those who sought in business to become economically independent found themselves in the grasp of numerous fiscal bodies whose administrative procedures and punitive methods became more and more sophisticated. This was to have fatal consequences for the development of business. The tax system seemed designed to render legal business dealings impossible, with people forced to bypass the law this putting them in a weak and vulnerable position. The punitive bodies were also highly selective, targeting those who were financially supporting the opposition or were attempting to assert independence. The regime made all efforts to ensure that only business with close ties to itself would succeed, this leading to the State apparatus becoming even more out of hand and heightening corruption.
This administrative pressure has eased considerably, and it is no longer necessary to have close links to the regime. At the same time fiscal policy has not changed. The tax police who, as a symbol of political persecution in the past and one of the main violators of human rights, should have been abolished as an institution, continue to carry out a wide range of functions. The old State apparatus has largely remained intact and out of hand, and is clearly accustomed to working according to corrupt practices. The danger of this trend becoming worse, therefore, still remains. The main tasks, which the Presidential Decree ¹1615 of 18 November would seem to recognize, are to reduce the scale of the shadow economy and to fight corruption.
2. Rise in poverty and social inequality.
According to official data at the end of 1999, which was to be the worst year for most Ukrainians, at least 30 % of the population was living below the official poverty line. The average wage at the time (155.5 UH, around 30 USD) was less than the official cost of living (220UH), although considerably more than the social security payments to the poor which stood at 73.7 UH. The divide between the average wage and the income of the richest 5 % of the population was steadily increasing and was already five or six times greater than the divide in countries of Western Europe and the USA. Social and economic rights (enshrined in the Constitution, a long-despised Soviet trick!) seemed pure mockery, with the violation of specifically these rights being most flagrant. The government under Yushchenko as Prime Minister went some way towards overcoming these trends. In a short period the State began paying the salaries and pensions owing, increased pensions, while foreign debt decreased and the rate of economic growth in the country made it one of the most dynamic in Eastern Europe. The level of income of ordinary Ukrainians began, albeit slowly, to grow. After the dismissal of Yushchenkos government, the positive trend was maintained, but at a much slower rate. According to data from the Ministry of Employment and Social Policy, at the beginning of 2002, at least 25 % of the population were below the poverty line, with half of these living on an income of less than 120 UH.
This trend has been halted, with the fight to overcome poverty becoming one of the main priorities of the State. The minimum pension is now at the level of the cost of living for those not working which has been particularly felt in rural areas. Other social payments have also increased. Unfortunately, price rises brought about to a large degree by artificially created inflation has eaten away at this increase, and the position of a significant percentage of the population remains unstable especially given the threatened increases by local authorities to rent and communal charges. Such increases should bear in mind and not overtake the actual income level of the population.
3. The political struggle gradually turned into the strangulation of the opposition
Any means were used, in particular, enlisting the aid of the State bodies, including law enforcement, and other enforcement bodies. This was well demonstrated by the election campaigns between 1998 and 2004, as well as by the Referendum of 16 April 2000, with the violations of political and civil rights being the most serious of all the years of independence. By flagrantly and persistently foisting the ‘correct choice on voters, virtually preventing any candidates from the opposition from having contact with voters via the mass media, and not spurning any forms of administrative pressure to get the result they wanted, State executive bodies turned the elections and the Referendum into a spectacle which could not arouse any emotions save humiliation, shame and protest.
The Gongadze affair and the tapes of Major Melnychenko, as well as the actions of the Committee «Ukraine without Kuchma», accelerated the process of confrontation between the regime and the people and the formal organization of it in the political sphere at an institutional level. After the dismissal of Yushchenkos government it became evident that a political opposition had emerged with all chances of changing the course of events within the country. Political confrontation between the regime and the opposition became increasingly fierce and turned into open struggle during the 2004 election campaign.
The crushing of political opponents and the use of law enforcement bodies as weapons of political battle have ceased, and let us hope, for ever. The cries of ‘political persecution from members of the former regime are pure demagogy. Victims of political repression do not appear on central television channels, nor do they create new parties and start their own newspapers. On the contrary, real political competition has emerged where political forces are no longer frightened that they will be crushed by the full weight of the State apparatus.
4. Criminal and legal policy became more and more brutal.
Torture and cruel treatment during both detective inquiry (before charges are laid) and the pre-trial investigation applied to extract confessions became an everyday event, and most often went unpunished or, worse, were considered normal. This both heightened the sense among law enforcement officers of impunity and power and the feeling amongst others that they were quite defenceless. The number of people convicted of crimes doubled between 1991 and 1999, with the percentage of those receiving custodial sentences being 35% and 37,5%, respectively. Throughout all those years the number of acquittals never exceeded 0,35%. The introduction of a new Criminal Code and of court control over arrests did not lead to the expected easing of the load on the penal execution system. Nor did the number of suspects whom the courts ruled should be remanded in custody decrease meaning that the conditions in pre-trial detention centres remained shocking. The overall number of those deprived of liberty remained at the level of 190-200 thousand.
The brutal practices described above remain a serious problem, and no initiatives have been taken to bring about a systematic reform of law enforcement bodies. The Committee of the Verkhovna Rada on issues of legislative backup for the law enforcement bodies continues to stubbornly ‘push a draft of a Criminal Procedure Code drawn up by the government and built around a base model of Soviet inquisition-style criminal legal proceedings, despite the fact that the draft has been severely criticized by the human rights organizations and received a negative evaluation from the Council of Europe. While the Constitution states clearly that detention without a court warrant may only be applied in exceptional circumstances, the use of such detention is so widespread as to make detention with the sanction of the court the exception. Law enforcement bodies continue to hold people in custody as their preferred preventive measure. Human rights organizations are still receiving complaints of torture and cruel treatment during the detective inquiry and pre-trial investigation stages. No effective measures have yet been introduced to counter the use of torture by the police, and complaints about the activities of law enforcement bodies are as a rule reviewed in a superficial and biased fashion. There have been virtually no improvements in the penal system, the prosecutors office or the Security Service of Ukraine (SSU). It should however be noted that the Ministry of Internal Affairs (MIA) has become more open and cooperates more with human rights organizations.
5. Disregard for the judiciary and for the rule of law in general increased.
This could be seen in the constant violations of the principles of the rule of law in favour of immediate political expediency, in the lack of respect for the independence of the courts, in the pressure on the courts applied by the Presidents Administration and by the State executive as a whole, in the pitiful level of financing of the judicial system, and in the attempts to inculcate the belief in society that the judiciary was one of the most corrupt institutions in the country. The Presidents people blocked the development of constitutional legislation aimed at developing constitutional norms and establishing clearly-defined powers for the executive and judicial branches of power. This meant for example that laws on the Presidents role, on the Cabinet of Minister, on temporary special and investigative commissions of the Verkhovna Rada, on its regulations, on pre-trial investigation units, etc, were never passed. The reform of the judicial system was stalled. As the Chairperson of the Supreme Court, Vasyl Malyarenko, said at parliamentary hearings held on 16 March 2005, it had moved «slowly and in a chaotic and unsystematic manner with reforms being followed by counter-reforms and attempts to review previous legislative rulings». Trial by jury was never in fact introduced and administrative and juvenile courts were not created. The periods required for review of court cases were too long and in virtually every case there was an infringement of the principle of court review ‘within a reasonable time.
The independence and proper functioning of the court system and respect for the rule of law as a whole also remains a serious problem. While cases of direct pressure brought to bear on the courts are much fewer than under Kuchmas regime, there remains a lack of awareness of the impossible of an independent judiciary and financing continues to be woefully inadequate. The court reform remains stalled by the lack of clarity as to the status of the prosecutors office. What is more, the amendments to the Constitution, passed on 8 December 2004, return to the offices of the Prosecutor the old Soviet general surveillance functions which runs totally counter to the creation of a strong and independent judiciary. This is a massive step backwards for achieving a reform of the Prosecutors office and bringing it into line with European standards, as well as being a breach of Ukraines commitments made on joining the Council of Europe back in 1995. In general everything related to the ‘constitutional reform suggests a total disrespect for the Constitution and for the principle of the rule of law. The procedure for introducing changes to the Constitution has been infringed on many occasions. It would appear that none of our Ukrainian politicians is bothered by the fact that the ‘reform creates an illogical competition between the top State posts of President and Prime Minister within the framework of one – executive – branch of power. It also effectively shatters the integral unity of Ukraines foreign and domestic policy, encroaches upon the principle of joint responsibility of the Cabinet of Ministers, and makes primitive nonsense of the principle of division of power. The ‘reform introduces principles of the worst political collectivism, transforms State Deputies of the Verkhovna Rada into voting machines, entirely dependent on the will of party bosses and leaders of factions, clearly increases the risk of confrontation between parliament and President and radically increases the direct organizational dependence of parliament on the will of the President.
6. The level of surveillance of State enforcement bodies over the population became ever more all-encompassing, this being particularly evident in the mass-scale violations of the right to privacy as regards communications. Tapping of telephones and mobile phones, and the interception of electronic mail and other forms of communication were applied on a huge scale. Since these investigative operations (IO) were not subject to control, it was impossible to assess the real scale of illegal, that is, unsanctioned interception of information from communication channels, this prompting numerous applications from both politicians and journalists. However even the scale of those actions carried out lawfully was staggering. As one of the judges of the Supreme Court publicly stated, in 2002 appeal courts had issued 40 thousand sanctions for the interception of information from channels of communication. This was a huge figure if one compares it with the number of warrants issued in countries with a similar population – France, the United Kingdom, etc, where the figure did not always exceed one thousand. There were active efforts to introduce a system for monitoring communications and activity of Ukrainians on the Internet. Order No. 122 of the State Committee for Communications of 17 June 2002 stated that only Internet providers who had installed the State system for monitoring and who had received the relevant certificate would be entitled to serve State executive bodies. Furthermore, these providers were obliged to procure and install this system at their own expense. This Order had no legal basis.
Surveillance carried out on citizens by State enforcement bodies has in general been on a smaller scale however remains considerable. Over the first 9 months of this year approximately 11 000 court warrants permitting the interception of information from channels of information were issued. These unofficial statistics were confirmed on 8 October by Sviatoslav Piskun, then still Prosecutor General of Ukraine, in an interview given to the newspaper ‘Komsomolska Pravda v Ukraini [‘Komsomol Truth in Ukraine]. He added that the material received had only been used in 40 cases. It should be noted that this issue has been a constant focus of attention of the President who has on many occasions stressed the inadmissibility of unlawful surveillance, and who signed Decree No. 1556 on 7 November concerning measures aimed at preventing this. However, in our view, the enforcement bodies are not in a hurry to support the President. The Order of the State Committee for Communications No. 122 which introduces control over the use of the Internet remains in force as a result of the will of the SSU to hold onto this form of maintaining control over society, despite the fact that the Ministry of Justice in a letter dated 13.10.2005 instructed the Ministry of Transport and Communications to revoke the Order within 5 days. The SSU is adamantly resisting the adopting of draft Law No. 4042-1 «On interception of telecommunications» which contains guarantees against abuse. Together with other enforcement agencies, it introduced for the new version of the «List of items of information which constitute a State secret» of 12.08.05 a point about classifying statistical data about investigative operation, counter-intelligence and intelligence activities. This point will mean that there is no possibility whatsoever of gaining information as to the number of warrants issued for interception of information from channels of communication. A solution can be found in the adoption by parliament of draft Law No. 4042-1 since its implementation is intended to resolve the problem of abuse in this sphere.
7. Peoples right to protection of their personal data was ever more infringed as a consequence of the general will of the State to know as much as it could about its citizens. The abolition of the system of registration known as ‘propiska confronted the State with the task of creating a system of registration for individuals. The main decisions of the State, passed in this field, were, unfortunately, aimed at creating an effective mechanism for spying on the private lives of Ukrainians. Long discussion as to which state body should be responsible for this register – the Ministry of Internal Affairs (MIA) the Ministry of Justice, or a separately created special body; what the register should be; and how to ensure protection of personal data, ended unexpectedly on 30 April 2004 with a Decree of the President, No. 500. The Decree stated that the MIA would be responsible for the register which would be based on the Single state automated passport system which had been started in 1996. This solution to the problem of registration of individuals meant in effect the use of a singe multi-purpose individual identification number, which would make it possible to unite all data bases where information about the individual was contained. The success of such a system would mean the transformation of Ukraine into a police state.
The right of the individual to protection of personal data remains under threat. The President with his Decree of 10 March No. 457/2005 cancelled Decree No. 500 of 30 April 2004 on the introduction by the Ministry of Internal Affairs of a Single Register of Individuals on the basis of a single State automated passport system (SSAPS). Nonetheless, judging from information in the press, the MIA has completed without any prior arrangements being made a plan for SSAPS on the basis of a single multi-purpose individual identification code (with the tax identification code used as basis for this code). Recently Yury Lutsenko, Ukrainian Minister of Internal Affairs, announced the creation of citizens cards with a single number. The introduction of this passport according to the Minister is being deferred until after the elections in 2006. However the issue of foreign passports in the form of a plastic card with a single number has already been introduced. There have been no basic laws passed on either the protection of personal data, or on the creation of a Single Register. In our opinion, basic laws should first be passed and only then should individual passes be introduced with observance of the right to privacy.
8. Freedom of speech was ever more widely infringed. Control over the mass media, especially forms of electronic media, became more and more tight and unashamedly blatant. Independent information and analytical programs virtually disappeared. The ability of journalists to freely express an opinion was directly dependent on the political views, interests and possibilities of the owner of the channel, and of the financial-political group which backed it. In each media outlet there were permitted subjects for criticism and areas not to be touched. Since all financial-political groups were dependent on the President, the latter had to be held immune from criticism. This unwritten rule was broken during periods of heightened political conflict between the President and parliament, between the President and the opposition (publications controlled by Pavel Lazarenko, Yevhen Marchuk, Oleksandr Moroz) during parliamentary and presidential elections. However it became very difficult to express an overtly opposing viewpoint: the State executive bodies gradually developed a huge arsenal of means for forcing those in opposition to be silent. The introduction in the middle of 2002 of ‘temnyki (directives to journalists telling them what to cover and how) made all news similar and standardized.
The number of infringements of freedom of speech has fallen significantly. In all sectors of the media there is pluralism of opinions, the majority of national television channels and radio stations are balanced in their presentation of information, although some elements of manipulation of information do remain We are not aware of any cases of pressure being placed on journalists by the central authorities, and the State mass media are gradually freeing themselves of their traditional exclusively positive and biased attitude to the regime. It should be noted, however, that there are as yet no guarantees providing for the consolidation and development of these positive changes. Unfortunately there is still no clear position on the creation of public service television and radio broadcasting or on the privatization of State mass media outlets.
9. The practice of classifying as secret and limiting access to official information became ever more widespread, this being justified as being for the protection of the information security of the State (a concept which is not defined in any law). Progressive laws, regulating access to information, were being effectively nullified by subordinate legislative acts and unlawful practice epitomized by the widespread use of illegal stamps restricting access to information. In particular, there were the stamps with «Not to be published» (used by the President), «For official use only» («OU») and «Not to be printed» (used by the Cabinet of Ministers, ministries and other departments). Our observations suggest that the number of documents with these stamps rose sharply during the period of election campaigns and the referendum. The number of documents with the stamp «Not to be printed» in certain months reached 10% of the general number of documents. It is noticeable that it was the very President of Ukraine who classified a much larger number of documents than the Cabinet of Ministers or any other department. These stamps of secrecy are not defined by any law, and the regulations for working with documents which have this stamp are either not defined by any legislative norm whatsoever, or, as in the case with «OU», effectively block access to documents with that stamp. The range of information which could be classified a State secret also broadened significantly. A «Code of types of information which constitute a State secret» was first made public (in 1995), but then classified as secret. All of the above are flagrant violations of Ukrainian, as well as international, legislation. As for information on open access, departments were extremely reluctant to provide this. The response to formal requests for information was frequently a formulaic letter giving no answer, or there was often no response whatsoever.
The unwarranted classifying as secret or restriction of access to official information has to a large extent been retained. The promises to ensure openness of information, transparency and accountability of the regime to society made on Maidan Nezalezhnosti [Independence Square] during the Orange Revolution have largely not been kept. It is difficult to assess progress in this area given the lack of openness and desire to limit access to any information about their activities in the State apparatus beginning back in Soviet times. One can cite the latest examples. On 17 November the Verkhovna Rada accepted with a majority of 310 votes in favour (and none against) as a basis the draft Law „On the Foreign Intelligence Service of Ukraine», the text of which is not available in the computerised legal systems, and one of the articles of which has the classification stamp «secret». The presence of secret articles contradicts the very essence of laws as open public normative legal acts, and is absolutely inadmissible. We also consider the inclusion in the new List of items that constitute a State secret of such information as the «moral and psychological state of the personnel», introduced by General Headquarters and the State Border Guard (Points 1.2.1 and 4.6.4) to be unjustified. Over 10 months there have been 42 Presidential Decrees bearing the stamp «Not to be published». The Cabinet of Ministers over this period has issued 13 Resolutions and Directives with the stamp «Not to be printed» and 3 with the stamp «For official use only» (OU). They have also been used by other ministries and departments. Most regrettably, therefore, the practice of using illegal stamps has remained intact despite the promises made to put an end to it, although the scale of its use has decreased since the Kuchma era.
The above analysis suggests that on the whole the situation with regard to human rights has in 2005 improved, however this improvement cannot be considered firmly entrenched. Obviously it is not possible in the space of 10 months to eradicate corruption, to successfully reduce the scale of the shadow economy and to change the way of thinking of law enforcement officers and of the State apparatus as a whole. However the political will is needed as well as persistent efforts aimed at improving the situation with human rights. Moreover, in our opinion, we still have the opportunity to make a swift start to effective reforms in all fields of life. Of particular importance here is the condition that the Constitution and the principle of the rule of law are observed, in particular the fulfilment of all procedural requirements. Only on this condition will changes for the better as regards human regards become irreversible.