Joint Report on Violations of Personal Autonomy Human Rights in Ukraine about oppression of personal autonomy, neglect of human rights in Ukraine is prepared by Autonomous Advocacy
(A=A), Ukrainian Council of Freethinkers and Believers (UCFB), and Institute of Open Religion
(IOR) in March 2017 for Joint Submission to the Universal Periodic Review of Ukraine (Third Cycle, 28th session, scheduled on 15 November 2017) in United Nations Human Rights Council, and amended in July 2017 due to swift degradation of situation with human rights in Ukraine.
Key problems, revealed in Ukraine, are: war, poverty, impunity of the most crimes against person, poor implementation of human rights in judicial practice, economic barriers in access to justice, authoritarian practices harmful for national, cultural, religious and dissenting minorities, oppression of free speech, violations of privacy and property rights by state policies, predatory monopolism and elitism.
Key measures, proposed to Ukraine, are: to amend Constitution of Ukraine, recognizing universal unalienable nature and autonomous meaning of human rights; to reduce court fees in typical cases of human rights violation, especially by officials and law enforcers; allow lawyers to develop pluralism of legal opinions and create alternative independent bar associations without coercive membership in Ukrainian National Bar Association; stop blocking social networks; stop force people and media to use Ukrainian language by violence; stop dictate religious organizations how to worship and manage, comply obligations, noted in §§ 86-91 of judgment of European Court of Human Rights in the case of Svyato-Mykhaylivska Parafiya v. Ukraine (No. 77703/01 by 14 June 2007); stop involve people to aggressive war, don’t discriminate pacifists, comply obligations, noted in UN Human Rights Committee Resolution No. CCPR/C/UKR/CO/7 by 22 August 2013, especially stop violence against minorities and dissenters, provide right to conscientious objection on non-discriminative basis; stop censorship of online petitions; allow people to participate in inclusive public dialogue.
1. This report about oppression of personal autonomy, neglect of human rights in Ukraine is prepared by A=A, UCFB and IOR in March 2017 for Joint Submission of A=A, UCFB and IOR to the Universal Periodic Review of Ukraine (Third Cycle, 28th session 2017) in United Nations Human Rights Council, and amended in July 2017 due to swift degradation of situation with human rights in Ukraine. It concerns rule of law, right to life, property rights, right to liberty and personal security, right to freedom of expression, right to respect for private life, right to a fair trial, and right to freedom of thought, conscience and religion. Deep problems are found and illustrated on vivid examples of violations of personal autonomy, related to economic barriers in access to justice, discrimination of small religious groups, pacifists and other minorities, practices of imposing statism and elitism, for example, wrongful monopoly of the Bar, state language monopoly in media, excessive coercion and lack of respect for privacy and property rights in taxation and anti-corruption policies. Official statistics included on crimes against the person and suspects exposed, indicating that most of crimes remain unpunished. Also, report includes results of research, indicating rare human rights application in court decisions. Strongest guarantees of personal autonomy are proposed for the protection of human rights, personal autonomy and equality before the law.
2. Despite Constitution of Ukraine recognizes protection of human rights and freedoms as primary mission of state (article 3) and rule of law (article 8), it is proclaimed by the article 92 that only Ukrainian legislation define rights of human and citizen. It needs amendments recognizing natural and unalienable character of human rights which have autonomous meaning and in scope is general right to personal autonomy as a right to everything which, according to the person’s self-conception, is in her/his/it’s own interest, and freedom to choose legal ways of realizing personal interests.
3. The right to life is violated by demonstrative murders and the armed conflict in eastern Ukraine, used for primitive political control by Moscow and Kyiv aggressive rulers.
4. The right to property is violated by inflation, caused by state manipulations with finances, by predatory taxes and regulatory policies, by abusive monopolistic prices, tariffs, work conditions and payments, by seizure of property and destruction of businesses by state agencies and racketeers.
5. Right to personal liberty and security violated by abductions and tortures, practiced in state forces and criminal activities, and also violated because of ineffective judicial control over arrests and detentions in aspects of humane conditions, including elementary hygiene, proportional terms and legal reasons. Usually, courts give automatic agree on requests of prosecution for detention of suspects and prolong such detention as many times as prosecution wants, demanding too high bails, ignoring objections of defendants and human rights. For example, right to liberty and security of person is mentioned only in 1 of 170 court decisions about detaining people. Arrestees forcedly involved into corrupt bargaining for liberty. So-called Savchenko Law, in December 2015 allowed to reduce sentenced term of imprisonment by double-counted term of detention during the investigation and thus partly broke corruption schemes, in May 2017 revoked for reasons of 15% recidivism (repeat of crime) among persons released with Savchenko Law; for comparison, before the Savchenko Law amount of recidivism were 22%, and in Russia recidivism reaches 45% because of extreme repressive criminal law.
6. Freedom of expression is violated in Ukraine by repressing opinions, dissented with official vision of geopolitics, violent and moral pressure on the media and public persons, forcing them to discuss topics of “information war”, to use Ukrainian language only, ideological censorship in licensing (especially TV and radio) and accreditation, head officials hate speech on dissenters, ruling class manipulations aimed to deprive opponents access to public expression and discussion of their views. Legislation impose obligation of television and radio to broadcast vast majority of time programs and music in Ukrainian, violations punishable by license denial. Aggressive lobbied bill about mandatory publications in Ukrainian language for all publishers and print media, with cynical lies, that such interference in private business does not restrict cultural rights, including freedom of choice language to speak. Security forces capture or destroy businesses and social capital, imposing disproportionate sanctions without legal reasons, illegitimate and abusive for democratic society, such as prohibition of popular social networks “Vkontakte” and “Odnoklassniki”, search and postal Internet services “Yandex”, “Mail.ru”, accounting software “1С”. Petition for freedom of speech and restoring access to “VKontakte” collected 25,359 signatures and answered with shameful statement by President Poroshenko, acknowledging authoritarian intent to control information and economic activity in social networks. Lawsuit of student Yevstifeyev, demanding cancellation of presidential decree on sanctions against freedom of speech in social networks, unlike a couple of other similar lawsuits was heard by Supreme Administrative Court of Ukraine. Head of court Nechitaylo, presided on hearings, turn process into mockery on justice, by single-judge unjust decisions, clearly violating right to a fair trial and breaking procedural law, refused up to ten victims of social networks prohibition in their request to join the case on the side of plaintiff and even ordered to take out from the courtroom autonomous advocate who tried to enter into a case, despite panel of 5 judges under Nechitaylo’s presidency allowed to join the case Security Service of Ukraine on the side of President Poroshenko, without bringing any remarkable arguments or evidence to hearings. In final resolution of 14 June 2017 judges Nechitaylo, Bukhtiyarov, Vedenyapin, Marinchak, Prikhodko distorted the facts and refused to satisfy lawsuit, arguing that sanctions against social networks hurt only their owners and don’t concern the rights of thousands of Ukrainian users, restricted in access to own accounts, which absurd statement is contrary to legal doctrine of European Court of Human Rights (see §§ 54-57 of judgment in case of Cengiz and Others v. Turkey, §§ 46-56 of judgment in case of Ahmet Yıldırım v. Turkey). It is notable, that court didn’t consider essentially plaintiff’s arguments that President Poroshenko’s sanctions against social networks are illegal, disproportionate, and don’t pursue legitimate aims, necessary in a democratic society.
7. Significant problem in Ukraine is discrimination of women, old and disabled people, LGBTIQA community, small religious groups, pacifists and other cultural, national, sexual minorities, practices of imposing statism and elitism, wrongful monopoly of the Bar, cultural, ideological and state language monopoly in media, excessive coercion and lack of respect for privacy and property rights in fiscal (tax, customs) and anti-corruption policies.
8. Economic barriers in access to justice imposed by the law “On the Court Fee” from 2012, such as minimal cost for lawsuit in sum of 2/5 of living wage, principles of adding court fees for every claim (commonly proceeding requires several claims on the same matter, so court fee multiply twice or more) and for every plaintiff (even if plaintiffs united in one group), discrimination of personal businesses and legal persons (including non-profit organizations), in contrast with physical persons, with 1,5-2 times larger court fee and removing upper barrier of court fee. Rising court fees often seems as tax on ordinary business and domestic activities, such as revision of excessive tax sanctions or consensual divorce. Applicants should pay court fees for appeals and cassations, higher than lawsuit fee (and planned to double), despite the formal character of its consideration and unjustness of whole idea to force people pay for fixing errors in judgments. Also high raised cost of enforcement of court decisions, for example, to enforce order to take obligatory action costs 4 living wages. Practically, there is abolished now traditional release from court fee in cases of consumer rights protection and compensation for damages, caused by illegal actions of officials.
9. New economic barriers in access to justice come with imposing monopoly of the Bar. Oligarchic bureaucracy long time lobbying elitism in legal profession, interested in limiting possibility of independent and real protection of human rights in the court and turn each litigation into trade at standard rates and corruption charges. Monopoly of the Bar imposed by the law “On the Bar and Practice of Law” from 2013 and next amendments to Constitution of Ukraine, adopted in 2016, ruled that only lawyer from one particular national association of lawyers (Ukrainian National Bar Association) can represent person in civil case (with hypocritical promise of possible exceptions for so-called “insignificant cases”) or defend person in criminal case before court. That legislation violates everyone’s right to association with independently chosen representatives, infringes fair self-representation of group without alienation of lawyers, using lack of legal literacy, trying to turn human rights into luxury, expensive privileges of elite. In the legal media there are many publications about usurpation of power, undemocratic governance and corruption in the Ukrainian National Bar Association, authoritarian disciplinary practices such as “ethical” prosecution, inquisitorial eradicating pluralism of legal opinions, excluding from profession for criticism and expression of unusual thoughts in social networks, permanent conflict between professional authorities and lawyers of Kyiv. There are serious problems with access to legal profession such as high cost of qualification exam and overregulated criteria of participation: not only legal education, but years of formally legal employment, excluding running own business or legal volunteering and human rights activism, also demanded long paid internship or work as an assistant of member of the Bar, and also mandatory participation in regular paid trainings with the imposition of loyalty to the rulers of Ukrainian National Bar Association, their elitist legal doctrines and ideologies. It is notable that rise of elitist monopoly of the Bar coincided with massive violations of the rights of lawyers, moral and violent pressure, unjust prosecutions, arrests and even murder. It is common opinion that authorities drove lawyers into the corral and does what they want with lawyers.
10. It is necessary proposition for the equal access to justice in the typical cases of violation of human rights, especially by officials and law enforcers, to reduce or avoid court fees and provide strong guarantees of legal self-representation and self-defense in due process, such as personal and group self-representation (self-defense), association with free chosen advisers, including lawyers not involved in the Bar monopoly, for example, autonomous advocates. Members of the Bar monopoly can participate separately if it is demanded by the law, or court, or person need their expensive service. Also we propose to release lawyers from monopolistic slavery, to broke chains of coercive membership in Ukrainian National Bar Association, allow lawyers to develop pluralism of legal opinions and create alternative independent bar associations to decentralize the Bar.
11. We are deeply concerned that Ukraine didn’t realize noted by Human Rights Committee (Res. CCPR/C/UKR/CO/7, 22 August 2013) plans towards an all-volunteer army as of 2017. No improvements take place in problems, noted by the Committee, that the provisions of the Law on Military Service permit conscription remain in force, as does the Law on Alternative (Non-Military) Service, and very few young man accepted to alternative service; situation degraded after compulsory mobilization to the East-Ukrainian conflict, military commissioners hunting for student conscripts at campuses and public transport, criminal prosecutions of conscientious objectors, demonstrative using conscription summons to silence civic society criticism of current authoritarian political regime human rights violations. Also, Ukraine left unattended concerns of the Committee that no measures appear to have been taken to extend the right of conscientious objection against mandatory military service to persons who hold non-religious beliefs grounded in conscience, as well as beliefs grounded in all religions, to equate terms of military and alternative service (which is now 1.5 times longer than military service), and recommendations of the Committee that alternative service arrangements should be accessible to all conscientious objectors without discrimination as to the nature of the beliefs (religious or non-religious beliefs grounded in conscience) justifying the objection, and should be neither punitive nor discriminatory in nature or duration by comparison with military service.
Military crimes registered, according to the General Prosecutor’s Office of Ukraine.
12. There are systematic violations against human rights of sustainable pacifist minority in Ukraine. President Petro Poroshenko publicly expresses views that pacifism is a crime and criticism of mobilization is treason against nation. Conscientious objection allowed only for small privileged groups of clergy of particular religious organizations, listed by act of government. Thousands of people prosecuted for avoiding compulsory military service and mobilization to the conflict in Eastern Ukraine. More than hundred of people seriously broke own bodily integrity to avoid mobilization into war, despite criminal prosecution for that crime. Many pacifists forced to buy decision of military medical commissions about unfitness to military service on the ground of mental disorders. Such pacifists have complications in access to jobs and appointments, such as service in the Bar or in the jury, because military ID is required to obtain demanded mental health certificate.
13. There are systematic violations against human rights of cultural, national and religious minorities, such as oppression of freedom of associations and hate speech in media, spread of negative stereotypes about Muslims, hysterical attacks insulting religious minorities with labeling like “sects” for Protestants and non-Christian religions, popular politics of demonizing Ukrainian Orthodox Church as “weapon of hybrid war”, “Moscow spies”, conflicts on religious grounds between sympathizers of Kyiv and Moscow Patriarchate, seizure of churches and cult property with the support of the authorities. Also, no improvements take place on the problem of concern, noted by Human Rights Committee (Res. CCPR/C/UKR/CO/7, 22 August 2013), at reports of hate speech, threats and violence against members of ethnic groups, religious and national minorities, in particular Roma, Jehovah’s Witnesses and Crimean Tatars, resulting in physical assaults, acts of vandalism and arson, most of which are committed by groups driven by extreme nationalist and racist ideology. Situation degrading with the last time attacks on Jewish cemeteries, conflicts between Ukrainian and Poland nationalists, and mass arrests of peace assemblies participants for dissenting expression of national identity. In some cases Security Service of Ukraine tried to criminalize spreading in the schools Buddhist and Hindus culture, such as Yoga and meditation. Ukrainian celebrities in public aggressive actions, using threats and violence, demand people to speak only in Ukrainian language. National and religious minorities, such as Crimean Tatar and Magyar, concerned about growing oppression of personal autonomy in cultural sphere, such as strong legislation forcing all media (not only radio and television, but printed and even online) to use Ukrainian language, to study Christian ethics in all schools, mandatory opening parliamentary sessions and first day of school with Orthodox prayer et cetera. Ministry of Culture lobbying legislation about more discretion of officials to deny registering of religious organizations, more strong demands to number of founders, despite now it unreasonable high (minimal number of founders for state registration of religious community in Ukraine is 10, compare to 2 for civic associations and 1 for newspapers and charity funds) and mandatory ideological expertise for registering of religious organizations, and even approval of clergy by the state authorities. By changes of tax code all nonprofit sector, including religious organizations is obliged to specify in statutes that its members can’t reach any profits but wage from organizational activity, it is clear violation of autonomy of religious communities. Ministry of Culture even fail to give access to public information on its policies in sphere of regulation of religious life, as well as illegally reject to register statute of Religious organization “Religious Center of Believers in the Supreme Value of Human – The Soul Society”; also, since 2016 Ministry of Culture fail to perform court order to register that religious center, claiming the absence of necessary documents, and Ministry of Justice reject to enforce court order without paying of sum equal to 4 living wages. Also, regional administration and Security Service of Ukraine in Cherkasy Oblast trying to abolish small religious community “Bozhici” of neo-pagan dark gods worshippers, the wooden temple of this organization was burned in 2014 and arsonists have not been found yet.
14. We are deeply concerned that Ukrainian government continues to violate rights of individuals to determine the form of their own religious association, as well as rights to autonomy of the religious groups, their capacity to decide independently own structure and form of management, and don’t resolve problems with religious freedom nor comply obligations, noted in §§ 86-91 of decision of European Court of Human Rights in the case of Svyato-Mykhaylivska Parafiya v. Ukraine (No. 77703/01 by 14 June 2007).
15. All people with unpopular beliefs in Ukraine are potential targets of violence, the state fail to protect their dignity and life. Last years there are many killings and attacks on known public persons that remain without proper investigation. It is result of elitary supported activities of aggressive groups, dedicated to imposing national and ecological values by violence.
16. Ukrainian state systematically violates property rights and personal autonomy in the sphere of private property. By the new taxation rules from 2017 individual businesses forced to pay social charge even if they don’t reach any profits. There are many publications in media about unreasonably high taxes and tariffs, unbearable for the most of people living in poverty (on the doors of many houses, even in the center of the capital, placed long lists of debtors), and restrictive regulations on small businesses. Local government of Kyiv placed inscriptions everywhere about prohibiting trade and advertising, and demolishes without a court decision thousands of trays, shops, street advertisings and markets (often on the ruins of commercial buildings owners placed big banners, claiming refusal to pay bribes to city officials), simultaneously ignition (probably, arson) take place in couple of city markets and stay without proper investigation, as the many similar cases in last years of XX century when current mayor of Kyiv was close to known gang leaders. Also, new rules of state procurements give officials more discretion to withdraw participants for alleged (supposed to be anti-corruption) reasons, which destroys market competition, and even, for example, take criminal charge against private entrepreneurs participating in the tender for not telling that they were once the founders of one firm, which allegedly makes them related persons and excludes participation in the tender. Moratorium on the sale of land also violates right to protect of property. National Bank of Ukraine massively restricts the autonomy of banks, imposing own economic ideology, raises formal requirements for capitalization of banks, making banking unsustainable without ties to the ruling elite and state support, closes banks, forces banks to spy on currency operations and report to the tax authorities. Police criminalize Bitcoin mining, seize computers and phones.
17. There are many violations of privacy in the state politics aimed to fight corruption, also media covering of anti-corruption policies commonly damages human dignity of almost all public persons, labeling them as greed and corrupt people. Unreasonable wide circle of persons (for example, including members of jury in courts) must fill and publish in the Internet mandatory e-declarations of property and income on unreasonable wide scope of matters, covering 40 pages (!), compare with mandatory declaration of interests for European Commission representatives on 4 pages.
18. Ministry of Science and Education deprive universities of autonomy and imposing elitism in education, for example, it is mandatory to have publications indexed in commercial bases Scopus or Web of Science to become assistant professor or professor, despite to lack access and high cost of such publications. In the communities of Ukrainian intellectuals moral values of altruism and social solidarity pushed out by elitist ambitions to suppress personal autonomy of all people, to deprive nation economical and cultural choice for the more comfort life of elite; some “moral leaders” slander on nature of Homo Sapiens, saying in public lectures that only 5% of people is capable to reasonably rule own life, other 95% people supposed to be unreasoning subjects of coercion by elite, worthless and don’t deserving respect or humane treating.
19. There are high (practically, monopolistic) Ukrainian language quota in informational relations, especially in education and media (for example, television, repressively reviewed by license agency), imposed by legislation, depriving people personal autonomy of choosing of speaking language. Ukrainian celebrities in public aggressive actions, using threats and violence, demand people to speak only in Ukrainian language. Some philologists and populist politicians advocated total compulsory use of Ukrainian language to abandon the communist colonial legacy, spreading legal nihilism and hiding that some of them also were members of communist party. Formal criminalization of Nazi and Communist propaganda in practice is radical populism monopoly of ruling class, instrument to oppress political opponents and civil freedoms in general. Also, mass controversial changing the names of cities and streets due to “decommunization” without fair and tolerant democratic consideration are used for military, national and religious elitist propaganda, often abusive for minorities. Trying to establish monopoly of the state in the sphere of language continue today, and supporters of such politics ignoring risks of mass violation of human rights and deepening the social alienation, don’t pay attention to European Court of Human Rights judgment in the case “relating to certain aspects of the laws on the use of languages in education in Belgium” 23 July 1968, found the violation of human rights for education and for non-discrimination in restraining children to access the French-language schools due to politics of Belgian Government of “establishment Dutch-speaking élite” with fighting “phenomenon of active francisation”; contemporary efforts violently forge “true Ukrainian-speaking elite” is similar.
20. Elitism destroying democracy of participation in Ukraine. Direct democracy oppressed and discouraged by predatory legislative regulations, elitist barriers in access to media, democratic procedures, public spaces and dialogues, deprived of social and financial support; fake institutions – clienteles of grant-eaters and lobbyists – pushing out alternative social activities and imposing elitist agenda to civil society. NGO advisory boards at Ukrainian government bodies suppressed by manipulative disciplinary regulations and totally deprived of autonomy, filled with dependent elitist representatives. Despite new legislation provides online petitions, there are unreasonably high minimum numbers of signatures imposed by legislation to reach answer. According to Article 23-1 of Law of Ukraine “On the petitions of citizens”, every online petition must be censored and after censorship published to start collecting signatures, and courts reject lawsuits against censorship, that clearly violate rights for freedom of expression and for fair trial. We propose for the development of the direct democracy in Ukraine to strengthen promotion of personal autonomy in public communication: to publish online petitions without censorship; to consider all petitions without exception, maybe with priority queue based on the speed of signing petition, without the fictitious minimum number of signatures; as for public participation in state policy formation and implementation – functions of authorities regarding to organizing public consultations must be limited to free registration of participants with minimal, clear and reasonable criteria of participation (inclusive for all individuals, groups, institutions and organizations, even without recognized legal personality), granting access to the public information and mechanism of petitions, and allow people to unite independently into working groups, commissions, committees, public councils for critical analysis and preparation of constructive proposals on the state policies, for making and promoting people’s decisions through petitions.
21. Resolving deep problems with human rights, we must individually and collectively practice freedom, collect experience of responsibility to rise legal culture, to spread economical and social skills in practical enjoying of freedom, create private and public space of human security; war and poverty isn’t excuse for oppressing freedom. Knowledge of laws must be practical, not imposed by elitist propaganda or childish fear of punishment for independent actions. National and international institutions can encourage Ukrainian people to realize liberal egalitarian values of human rights and personal autonomy. But first of all, to empower human rights, we must amend Constitution of Ukraine, recognize natural unalienable character of human rights which have autonomous meaning and in scope is general right to personal autonomy as every human right to follow own rational interests and freely choose legal ways to lead own life.