The lustration law is void

What happens to the human rights situation in Ukraine and what rights are most often violated, “Ukrainian News” decided to ask the chairman of the Ukrainian Helsinki Human Rights Union, Alexander Pavlichenko. In an interview he explained why in the occupied Ukrainian territory there is no such thing as a “human rights” is often violated the rights of prisoners, what has changed in this area after the Revolution Benefits. He also told why lustration law does not change and only violates human rights, and that prevents a real fight against corruption in Ukraine.

– How often human rights are violated in Ukraine?

– The first thing you need to start on human rights, it is the relationship of the citizen and the state. How the state can protect these rights and how they are enforced. Accordingly, when we are talking about areas that are beyond the control of Ukraine is Crimea and parts of the Donetsk and Luhansk regions, the state is unable to enforce the rights in these areas, as the jurisdiction de jure applies, but de facto no. And this is a problem, we are talking about today. If we talk about how human rights are violated in these areas and what is a violation, you are engaged in some non-governmental organizations and, unfortunately, the state in this matter a little modify. And when we talk about specific human rights violations that occur, for example, in the Crimea or the zone ATO,

If we are talking about human rights abuses in the so-called DNR and LNR, the prosecution took place, even on the grounds that a person may not be very loyal to the representatives of the DNI / LC. From my own experience I can say that we asked those who fell in the space of non-freedom in these areas and the questions about what were the causes of premises in these places, received different answers. For example, some people got in such a place in the course of armed conflict, when they were taken prisoner during the exit Ilovaysk and Debaltsevo. There are situations where a person is put in place for the lack of freedom that it looked bad to the representative of the LC with a weapon or passed in front of the car militant leader. That is, we see these reasons and motives that suggest that anyone at any time may be deprived of the right to liberty, can be beaten, tortured torture if he does not show his loyalty, not to mention the fact that a man can dare to express their vision of any situation and to demand that his rights somehow respected. The conclusion is – DNR and LNR is a zone of absence of law as such. There are no laws, there are no rights and they provide mechanisms. This is a big problem, because in this area to restore the system will be very difficult right.

– What is the situation with the Crimean Tatars? Fixed a lot of violations of their rights. How to make the occupation authorities actually comply with these rights and what to do by the Crimean Tatars, to appeal to international courts?

– There is no single recipe to solve this problem is not present. We’re talking about that we should use all possible international mechanisms. Information about these cases should be maximally spread, and, of course, is not so easy to overcome a strong enemy. And even the participation of international institutions, the same appeal to the ECHR does not bring immediate and positive results. Quest – rally the community to develop effective mechanisms. And of course, our government must always declare their firm position and defend it at all levels, not only in words, but use different national mechanisms for prosecution, opening criminal proceedings against those criminals who think that they exercise some law enforcement function.

– Speaking of the zone ATO, whether civilians are violated our military right? The same access control – is a violation of human rights or not?

– There are actually three big checkpoints through which the crossing of the border (demarcation line between the parties to the conflict). And this is a problem, because we are aware that are fighting, and in fact through these points do not always move civilians. Although it is one of the legitimate ways for civilians. Is this a violation of the right to movement, to move home? I believe that there is, because it is caused solely by the force majeure. It is not voluntarism on the part of States to establish certain limitations. This restriction, which explained the situation. I have often been in the area and I can say that this is all justified.

– Are there any cases of violation of citizens’ rights on the part of our military in the ATO zone?

– There are situations when we speak of the Armed Forces of Ukraine and volunteer battalions. Today the situation is completely controlled by the police. Cases of torture or retention in areas of non-freedom of those who were suspected of collaboration with the LC / DNI concerned period in 2014. This information has been very widely used pro-Russian party. We have information about places where detained people about specific individuals who were associated with it and at the same time we have information that pursuing fighters volunteer battalions, which are either in the affirmative or proven perpetrators of such crimes. At the moment, it opened about 400 criminal proceedings against fighters volunteer battalions, it is primarily men “Tornado” and “Aydar”.

– If we talk about the prison and penal institutions … as increased the number of violations of prisoners’ rights?

– We have about 70 thousand people, who are serving sentences on the territory controlled by the authorities.. If you look at the general state of things in general, the state with the right to remain consistently poor. The situation is worse in prison than in the colonies. Although, in some detention centers the situation is much better than in prisons. Relative to material conditions, the situation in most cases only worsened. If we talk about food conditions, almost everywhere we encountered with normal feeding conditions, the conditions of providing medical care to more or less remain stable, they are bad, but stable. In some institutions, the situation with the provision of medicines and medical aid is somewhat better in other institutions – somewhat worse. In general, we say that the treatment of persons who are in prison, has not changed. There are cases of beatings, we will, in particular, fixed rigid enough cases of force against prisoners who arrived at the place of unfreedom. Unfortunately, the practice continues. And leadership is not punished and no investigations are conducted properly. Therefore, a stable situation is bad. As conclusion – the prison system needs to be reformed, and on the agenda is the question of carrying out such reform. How it will be successful depends on how and with what means will be reformed, and which model will be built. As conclusion – the prison system needs to be reformed, and on the agenda is the question of carrying out such reform. How it will be successful depends on how and with what means will be reformed, and which model will be built. As conclusion – the prison system needs to be reformed, and on the agenda is the question of carrying out such reform. How it will be successful depends on how and with what means will be reformed, and which model will be built.

– Are there many web resources in Ukraine (sites) that violate human rights? Take, for example, the site “Peacemaker”, which publishes the personal data of citizens.

– It is necessary to talk about the two types of sites. First of all, it is the language of hatred, which is distributed on the Internet. And it is inciting this component is an indication: a) bad journalism; b) bad moderation sites. I can recall that the responsibility for commenting on the sites lies with the administrators. Regarding sites that contain personal data, there are serious questions. Why? Because when we talk about the site “Peacemaker” and how it violates the right to privacy, I would probably think about is not quite accurate interpretation of the law “On protection of personal data” in this case. Why? Because the general rule in information laws is that voluntarily released information becomes public. Website “The Peacemaker” I do not condone and do not defend, but simply explain the logic of its creation. This is a collection of published information in the public domain regarding the persons who in one way or another way to proclaim themselves as belonging to the party who is at war with Ukraine. Actually, this raises a question regarding the legality of the spread of such personal information and standards should be the resolution of the court on the dissemination of such information. That would be the best solution, but it is difficult to find a judge and a court, which would consider the matter and issued a ruling that the placement of such information is lawful or unlawful. Therefore, the question of the existence of the website “The Peacemaker” in the current circumstances is ambiguous. I am sure that this site contains erroneous information about some of the people who may suffer from it, not knowing that they are placed on it. That is, from this can be negative consequences. For example, crossing the border, such persons may be arrested and detained.

However, I believe that this is one of the challenges with which the state has faced. Firstly, the very law “On protection of personal data” is new, its application is minimal. Authority to effectively monitor its implementation, we have not. The Commissioner of the Verkhovna Rada Human Rights oversees the observance of the law, which is empowered to make an order or to appeal the violation in court, but the severity of this body calls into question the feasibility of its operation. In fact, in countries of the world is, as a rule, the information commissioner, who is a respected person and has the right to prohibit the dissemination of information without a court order or to disclose information.

– How, in your opinion, have changed the practice of providing information to the authorities since the law “On Access to Public Information”?

– You need to talk about two aspects. Providing information in a passive mode and an active access. How has the practice? Beginning in 2012, actively developing the placement of information on the web. To date, the sites of government agencies are actively filled with information. First of all, it is the central executive authorities. The situation has changed for the better. Significantly behind in this respect, the local authorities. This is what comes to passive access. If we talk about open access, and that the answers to questions, there was a speech about the formation of judicial practice in providing access to public information that was denied him. At the moment, this practice is still in its formative stages. There are even quite ambiguous interpretation of legal norms.

– What changes have occurred after euromaidan in the field of human rights? For better or worse?

– First of all, the government has ceased to be so brazen. On the other hand, non-energy initiatives outbreak also led to the fact that most organizations appear to have become active in terms of those who are watching and monitors the observance of human rights. That is, the general trends have opened a huge potential for the development of human rights organizations and initiatives, which are aimed at protecting human rights. The latest example can be an initiative on the development of a national human rights strategy, to work which could join any and all non-governmental organizations.

– How do you assess the law “On Lustration” (the cleansing power)?

– First of all, I want to say that this law contains three components. First, it lyustrativny component, which tried without specifying the period within which the power was criminal, to determine the criminal nature of some of those who were in power some time. It could be called lustration recent officials who have committed criminal acts extrajudicially.

The second component is, in fact, lustration, which is used in the conventional meaning of the European continent, i.e. the cleansing effects of the former totalitarian regime. That is, all those who belonged to the Communist Party of the Soviet Union, and who was related to the KGB should be cleaned from the ranks of those who work for the state.

The third component is the fight against corruption, which is incorporated in the Act. This mixed product. I treat him very skeptical, because when we talk about the cleansing of the former members of the Soviet power vertical, and then talk about it on the 24th year of independence, is inappropriate. This was true in the first 5 years, when Ukraine became independent when still “red” director ruled the ball, when there were a lot of representatives of the KGB in power and now they have lost their powers and moved to a different status. Therefore, today it is not an urgent question. The question on the prevention of corruption is determined by other legislation and should be considered in a different procedurally, but not by way of lustration. Relatively lustration officials, it actually was not even punishment of those who has been in power under Yanukovych. I personally know several people who have been unfairly excluded from the civil service, although conscientiously went about their business. However, quite a large number of representatives of the same time, Yanukovych remains in power simply moved from one post to another, or remain on the former, not nearly unchanged.

As a result, I can say that the power quality in no way changed. We remember the period 2004-2005 and the coming of Yushchenko and his team to power, changed when a huge number of officials, the same happened when Yanukovych came. Almost all of the first leaders were replaced, here and there was a lustration and does not need any law. Changing the heads of all departments and all provincial and district administrations and all key positions are occupied by representatives of a particular spectrum. Although, it is also wrong. As for the law, I think he’s worthless. He does not change anything, but simply a specific declaration at any time, and violates the rights of those who wrongfully been deprived of posts, performing their work conscientiously.

– What are the prospects for their applications to the ECHR or the domestic courts?

– Perspective is always there. Here’s another question – how it will regard the European Court? This will depend on many factors, from each individual and of each specific situation and on the conditions under which he lost his job.

– How do you assess the “law Savchenko,” in which freedom will come about 1 thousand killers.?

– I appreciate the positive law. Under this law, freedom will come to 20 thousand. People, including 1 thousand. Persons convicted of serious crimes. I can say that even if we talk about the people who are convicted of particularly serious crimes, it is not so simple. It is not known whether this is the condemnation of 100% legitimate. If we agree that the court found that they had committed a crime and are serving their punishment, this law (Savchenko- ed.), Which is essentially the amnesty aims to, first of all, to humanise the system. When we forgive, to what extent this is an advance. In this case, it does not mean that these people are forgiven for the murder they committed.

Second – I understand that one of the motives of critics of the law is that the killer will be released, so – be wary of people who are murderers among you. It is not a motive, they would have come out if not now, then after 2 years, and that would have changed? Nothing. They would become kinder? Cleverer? In addition, special services should be ready for such a release. Freed of serious crimes should be supervised. In this case, what should be supervised, it depends on each individual convict, namely that he had committed. If he has committed an economic crime and went, this one, and if the murder – is another.

It is better to release one perpetrator and with him another 10 people who had been wrongly placed in prison than to keep everyone together. This humanization of the system. In this regard, I did for this law, even though it was written quickly and imperfect mechanism and its application today raises many questions.

– How would you assess the fight against corruption in Ukraine today?

– The real results of the fight against corruption, we do not observe. We see the creation of some of the mechanisms that need to work. To date, I remain a pessimist in the fight against corruption and I think that must be placed clear fuses at the highest level. We need to show samples of overcoming conflicts of interest and all the risks of corruption at the highest level. Civil society has become more capable than it was previously. It will rejuvenate and this is positive. It is, of course, form a new high-level leaders, but today it is unable to control the power to the extent to prevent the risks of corruption and confront the fact of total corruption that exists in the state.

– If we talk about judicial reform, as it has been successful? How do you feel about the initiatives to dismiss all judges at one time?

– I witnessed two judicial reforms that have been conducted since 2002. Unfortunately, each of the reforms only aggravates the condition, although advocated greater independence of judges, the distribution of the different branches, the allocation of administrative proceedings, the formation of chambers in the Supreme Court, but at the same time, we look at the result. If we look at the level of execution of court decisions, which means the level of confidence in the court and actually ensuring the right to a court, it is not sufficient, since 40-50% of court decisions are not executed to date in Ukraine. This problem means that the judicial branch of government is inefficient and does not work. This is one side of the coin.

The second – the court appeal is not so often, and in general the issue is quite problematic, as the court fee for one requirement for organizations is 500 hryvnia, if such requirements are two, the amount is more than 1 thousand hryvnia.. That is, it is quite a considerable sum. You say in the light of the fact that our judges are unprofessional and corrupt. I can say that the judges are professionally trained enough. They are in such circumstances that corruption is comfortable and familiar. I know a lot of normal judges, those which can be assessed from the perspective of professionalism and corruption. There are some who are not so normal. By what criteria to select them and to whom, and how to clean the judicial branch? This is a very complex question, as bodies of judicial self-government and judicial control,

Regarding the replacement of all the judges, I can say that it is practically impossible because of another body to replace the judges we have. Those judges who are working professionals today. They are so professional that they can hide their corrupt ties and due to his experience and knowledge will prove that all their actions and decisions are lawful. In Ukraine, we have 8-9 thousand. Judges. How can teach them? It is possible, but the conditions should be created under which their non-professional activities would not be possible. If you create such conditions, even those judges who decide something for the money, can modify their terms as have been some selection and have a practice. We need to create rules for the judges, and they will stop “bykovat”. Unfortunately, the level of corruption in the judiciary echelon is very high and it is necessary here to say that the judges accountable for all revenue and expenditure. It is necessary to analyze what people are living and where did say, means not only a particular judge, and that of his son, wife and so on. If it’s all under control, all these problems will become yesterday.

– How do you assess the actions of police officers killed in the car BMW persecution his 17-year-old passenger?

– I would refrain from an overall assessment of the event. But against what I speak – can not be any statements of heads of law enforcement agencies that their employees acted lawfully, until full investigation and analysis of the situation. This fact – it is a violation. There is even a case to the European Court of Justice, when such a statement the head of the police was a violation, since it was believed that the investigation was biased itself since the previous statement identified the legitimacy of police action.

The second – how weapons must understand law enforcement agencies has been lawfully applied. As it happened, why the passenger was killed, there was a need to stop the car in this way, and so on.

Thirdly, I want to note that the investigation should be objective, with the maximum involvement of independent entities. It must become public. We must avoid a repetition of such a situation, because she herself was the wild themselves. And most importantly – each violation should be punished. The police must act so that we did not have night races and those flying machines in the city. And yet, the penalty for violation of traffic rules should be extremely tough. We have seen a clear video evidence when the police could not cope with a young lady who wanted to park where and acted arbitrarily. If this happened in England, if it after the breach at least like the police objected, it would be deprived of the rights for 2 years with the re-examination, the point. Extremely strict rules.

– To sum up, what human rights are violated most frequently?

– violated virtually all the rules. There are rules that are more acutely felt. It’s such rights as the right to life, the right not to be subjected to torture or cruel behavior, the right to a fair trial. For other rights, more positive level, such as the right to social security, that in times of crisis, almost minimally secured are the rights of vulnerable individuals, this – the right of persons with disabilities, the rights of families with many children, the rights of internally displaced persons who are living in extremely difficult conditions. The state currently lacks the resources to provide an appropriate level of their existence.

We can speak about freedom, which today have the best level of application, it is, in particular, the right of association, the right to freedom of expression, the right of access to information, which operate through legislative changes and improve application practices. And when we say, for example, on access to public information, then we rise to a higher level compared with other countries that do not even always open declaration officials. There are positive results, there is a process of revolutionary evolution of human rights. He is very painful, but the development of civil society must be built on human rights principles.

Interviewed by Sergey Bosak

Sourse, 22/02/2016