U.S. State Department releases annual human rights report for 2005 (08/13/06)

U.S. State Department releases annual human rights report for 2005

by Matthew Dubas

PARSIPPANY - The U.S. State Department's Bureau of Democracy, Human Rights and Labor released its annual report detailing current human rights practices around the globe, including Ukraine, for the year 2005. The report indicates that there have been significant improvements in the Ukrainian government's performance regarding freedom of expression, improving prison conditions, increased accountability of police officers and freedom of assembly.

However a number of cases showed that enforcement of laws remained poor in the areas of the penal system, government monitoring of private communications and movements of individuals, human trafficking, limitations on press freedom, religious tolerance, discrimination against minorities, corruption, interference with trade unions, and violence and discrimination against women and children.

In regard to election violations, the Ministry of the Internal Affairs and the Procurator General's Office reported over 700 criminal cases involving 6,000 people, with about 250 cases being submitted to the courts by the end of the year. In most cases, the chairmen of polling stations were punished, with over 250 law enforcement officers being involved as well. Only in a handful of cases were investigations initiated into alleged violations and the then - Yanukovych opposition declared that the investigations into, and judgments on, election irregularities were politically motivated.

Another part of the report tracked the freedom of expression, freedom of the media and information in Ukraine. Infringements regarding freedom of expression fell significantly in the course of 2005, with media reflecting a wide range of opinions. The report suggests, however, that for these changes to be permanent, it will be necessary to create a legal basis for the creation of public service media and move to privatize at least some of the state-owned media.

Ukraine adopted the law "On Public Television and Radio Broadcasting in Ukraine" a few years ago, but the necessary amendments to this law were not approved by the Parliament as of the end of 2005. A closed group of individuals controlled the media due to the fact that Ukraine did not have any laws in place to impose anti-monopoly restrictions.

The adoption of amendments on July 7 to the law "On the Election of Members of Parliament" made impossible a considerable number of the violations and fraudulent acts that took place during the 2004 presidential election. These amendments also restricted political discussions in the media and restricted foreign press and mass media that operate in Ukraine from covering the election process. In December these restrictions were lifted by the Parliament, but the legislation still gave rise to concern.

Regarding access to information, the new government leadership promised to abolish the all-embracing secrecy within the government, but this was not achieved in 2005 and the presidential decrees marked "not for publication," a relic of the Soviet era, represented a grave threat to democracy and the rule of law, the State Department report noted. Ukraine did not have an efficient system of accessing information kept by government agencies and local self-governments, and authorities often disregarded their duty to provide complete information on issues of public importance at the request of individuals.

The criteria used by authorities to classify information were broad, vague and arbitrary, and contributed to the lack of information. To correct this, President Viktor Yushchenko ordered the Ministry of Justice to prepare bills on access to information and on the openness of information of the state bodies. The report concluded that, in practice, nothing had changed as a result of these initiatives.

There were fewer reports of attacks on journalists this year, with considerable increases in freedom of speech and the removal of the practice of "temnyky" (directives from the government on how to report on important issues). While incidents involving journalists still took place, these acts were sporadic and mostly came from pressures by mass media owners, which had led to practices of self-censorship.

The Procurator General's Office declared progress in the investigation into the killing of journalist Heorhii Gongadze. In March 2005 the government announced that the killers (police officers) had been arrested, however, it is suspected that the orders to kill Gongadze came from the higher ranks of the police or the executive branch.

The independence and efficiency of the judiciary and the respect for the rule of law remained serious problems, while pressure from authorities on the courts decreased. Inadequate financing made the efficiency of the courts illusory and in many regions the lack of funding was so severe that courts were led to ask for charitable donations or funding from local authorities, thereby putting their independence seriously at risk, the report pointed out. Other setbacks included the return of the Soviet-style "general oversight" functions, which undermines the creation of a strong and independent judiciary and is a breach of Ukraine's commitments made on joining the Council of Europe in 1995.

Other concerns for the judiciary system were the non-execution of court judgments or the failure to execute them within a reasonable time, especially regarding payments from state bodies or enterprises owned even partially by the state. According to the law, the assets of such enterprises cannot be sold to cover their debts, and without money on the accounts, the judgments remained unexecuted. In 2005 the European Court on Human Rights ruled in more than 80 cases that Ukraine had violated the right to a fair trial by failing to execute court decisions. In July and September new administrative and civil procedural codes were adopted that brought Ukrainian procedural legislature up to European standards.

However, according to experts, the main disadvantage is the elimination of independent expertise for courts: now every expert needs certification from the Ministry of Justice and so potentially can be put under pressure from the executive power in cases where a state body is involved in the dispute.

The unpunished everyday practice of arbitrary arrest and detention remained a problem in Ukraine, according to the report. This is due to the vague definition of grounds for arrest without a court warrant. These kinds of arrests were constitutionally allowed only "in the event of an urgent necessity to prevent or stop a crime" (Article 29).

Furthermore, legislation allowed the investigator in charge to extend the term of detention for a period exceeding three days without addressing the court, but the Constitution stipulated that the detainee be brought before a judge within 72 hours. The report found that judges almost never ascertained whether the duration of police custody was well-founded or whether the period of custody was excessive (judges are allowed to extend the detention period to 10 days).

These uncontrolled custody situations facilitated torture and the covering up of traces of torture. Also the law and legal practices essentially hindered access to a lawyer and this right was at the discretion of the investigator in charge who could cite "special rules" for denying access on no acceptable grounds.

Conditions in prisons and detention facilities constituted a major human rights problem in Ukraine. Article 11 of the law "On Preliminary Detention" prescribes 2.5 square meter per detainee in a cell, the Ukrainian average was a mere 1.8-square-meters, with a number of institutions providing even less. Detainees increased by 10-15 percent every year with administrations of such institutions forced to announce greater capacity figures, otherwise, the traditional shortage of allocated funds for inmates' rations would become catastrophic. The budget covered only 35 to 40 percent of the real needs calculated under the existing standards and was long overdue for review.

The report noted that police abuses continued toward ethnic minorities, with the most widespread and violent types of abuse against Roma (gypsies). Racial prejudice among law enforcement officials increased the vulnerability of Roma, who were targeted solely on the basis of their ethnic background, which resulted in a lack of trust in the justice system. Other police misconduct included torture and ill-treatment in police custody, fabrication of incriminating evidence, daily harassment and intimidation by the police and racist anti-Romani discourse.

Those accused of these racial actions avoided being brought to justice due to the confidence that the "system" would never fail them. In practice, the worst consequence that a police officer could expect was demotion or transfer to another police department.

Letters of concern sent to prosecutors, police chiefs and to the general prosecutor or the ombudsperson, alleging racist violence committed by police officers remained discarded. Authorities would often reply to letters of concern twice: first to inform the complainant that they had instructed the relevant (normally local) authority to undertake an investigation into the allegations; and then, a couple of weeks later, informing the complainant of the results of the investigation, stating that no unlawful actions were found and the police had acted in accordance with the law.

Other acts of racism, xenophobia and anti-Semitism were on the increase in 2005. Assaults were frequently carried out by groups of youth dressed in attire reminiscent of military uniforms. These sporadic outbursts gave rise to concern as Ukraine lacked national instruments for effective protection against violations motivated by racism and prejudice.

Article 161 of the Criminal Code envisages punishment "for deliberate actions designed to provoke national, racial or religious hostility..." in the form of fines, corrective work, or incarceration for up to five years. However, it was nearly impossible to get anybody actually convicted of this crime because the crime involved direct intent, with the particular aim of stirring up ethnic hostility in the country or in a specific region, of denigrating the honor and dignity of representatives of particular ethnic groups.

In practice this meant that in court the author of a provocative article had to state that he or she intended to stir up ethnic hostility. But admission of guilt by the accused could not be the sole proof in a criminal case, there needed to be additional proof such as a note in the accused's own handwriting clearly indicating such intent.

Article 18 of the law "On Printed Mass Communication Media in Ukraine" allowed for the suspension of publication print media by a court in cases "for stirring up racial, ethnic or religious hostility." Lawyers argued if "suspension of an issue of the print media" denoted the suspension of the publication as a whole, or just prohibition on publishing one specific issue of it. The State Committee for Nationality and Migration Affairs demanded that the courts suspend issues of Idealist, Personnel and Personnel Plus.

Examples of these offenses included an excerpt from the Idealist, which wrote, "Power to God, Ukraine for Ukrainians, Israel for the Jews..." and Krymksaya Pravda, which wrote, "Mejlis terrorists are committing atrocities while the Crimean authorities do nothing ... People have no on to protect them."

The U.S. State Department's 2005 Country Reports on Human Rights Practices were released in March of this year. They may be found at http://www.state.gov/g/drl/rls/hrrpt/2005/index.htm.

| Home Page |