Among the 18 articles of the first Paragraph of Rights and Freedoms of the Ukrainian Convention only a few have been put into practice in Ukraine, until now. Candidate of Law and Docent at Academy of Advocacy of Ukraine Kyrylo Legkikh comments for What’s On on the most important articles.
The Right to Life
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Comment: “The authorities in Ukraine are applying methods and tools that are not appropriate and necessary to achieve a legitimate aim – such as how to suppress a riot or revolt. Defending activists in criminal proceedings in court, in which people have been accused of participation in riots, the evidence is not sufficient to qualify as acts of rioting. The fact is the purpose of a riot can only be to paralyse (in full or at a time) the activity of public establishments. With regard to current events, the action of the crowd was to paralyse the activities of government, where an attempt was made to stop them through normal actions – the suppression of the riot/revolt proved that. There were fatalities and injuries caused to people who didn’t capture state institutions, as in they didn’t try to take control over the National Bank of Ukraine, the Parliament, the Cabinet of Ministers of Ukraine, etc; in other words, they didn’t try to ‘take over power’.”
Prohibition of Torture
No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.
Comment: “In contrast to Article 2, this article does not allow for any exceptions. It constitutes one of the main principles of democratic society. According to the case law of the Court, cruel treatment is anything exceeding the minimum level of violence. Obviously, during a physical seizure (detention) of a person committing an offense, force can be applied. However, it should be aimed simply at overcoming resistance and should not be prolonged. The violation of Article 3 of the Convention by militia in Kyiv is clear. For example, a violation of Article 3 is to cause injury to people who are already detained and not resisting so as to use special means such as shackles. Inhuman treatment include the militia’s insistence prisoners sing nationalistic songs, abuses on the basis of residence (Bandera supporters), and degrading treatment on the basis of political preferences (EuroMaidan). These instances are not only violations of Article 3, but also a violation of Article 14: Prohibition of Discrimination of the Convention. Ihor Kobzar (an individual detained on suspicion of committing riots) spoke freely of his detention, where the Berkut cut his hair, shoved it in his mouth and moved his lower jaw to imitate chewing. Should this be confirmed, it will certainly recognise the acts as inhuman treatment.
The Right to Liberty and Security,
and Article 6:
The Right to a Fair Trial
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Comment: “The Right to Liberty and Security and the Right to a Fair Trial are related in the context of recent events. Of course, the Convention says in order to achieve a legitimate objective, a person can be arrested. However, a person can only be arrested if reasonably suspected of having committed a crime. Recently, we have seen arrests in Kyiv conducted on a ‘whoever’s caught is guilty’ basis. In most cases, witnesses to the crimes are the militia officers themselves. No doubt they have witnessed certain events. But I should note, at hearings when the court sentenced offenders to the so-called ‘Violators’ precautions (usually 60 days detention), witnesses were not present in court. Thus, it was impossible to interrogate those witnesses. Working on such cases as a defender, the judge took less than a day from the moment of detention to announce the verdict. At the same time, wording might have changed several times throughout (ie hooligan, instigator of riots, and back to hooligan) while making changes to the articles of the Criminal Code of Ukraine (which affects the possible punishment). Article 6 of the Convention says the Court (as a process) is recognised as a fair process where judges assess the defence as well as the prosecution, and inconsistencies in the testimony of witnesses are eliminated. Unfortunately, courts’ decisions relied only on the evidence proving grounds for suspicion. Evidence ‘for’ those suspected was not analysed meaning there was no reference to that evidence.”
No Punishment without Law
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
Comment: “A simple example from my own practice: in the judicial system of Ukraine, acquittals are the exception (for example, in 2011 there were 12 acquittals issued, all annulled by the higher courts). Before the Criminal Procedural Code of Ukraine came into effect in 2012, courts used ‘a procedural trick’: whereby if there was no way to issue a guilty verdict, the case would be sent back for further investigation. One of my defendants was accused of possessing contraband of which the import to Ukraine wasn’t prohibited at the time of delivery. And yet the pre-trial investigation is still ongoing. The criminal case was sent to court in 2012 and returned for further investigation. The reason: a non-specific charge, the act was not punishable at the time of execution. The case was re-directed to the court in 2013 and returned again. The wording is the same. Now my client is abroad and prosecutors are asking for extradition. They say he is still suspected of committing a crime. Thus, despite the court’s decision determining the actions weren’t punishable, prosecution continues.”
Freedom of Peaceful Assembly and Association
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade UNI0Ns for the protection of his interests.
Comment: “There is a paradox with this article in Ukraine today. The Convention specifies the right to freedom of peaceful assembly can be restricted only by law. This law may impose the restrictions necessary in a democratic society in the interests of national security or public safety, 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. In April 2013, the decision on the case Oleksiy Vyerentsov versus Ukraine, in relation to an anti-corruption action he organised in 2010, was made. The court noted the Parliament of Ukraine has not yet enacted any law to regulate the conduct of peaceful demonstrations, although Articles 39 and 92 of the Constitution clearly requires the establishment of this procedure. While the Court agrees it may take the State some time to adopt the legislation, it couldn’t accept a 20-year delay, especially when it comes to such fundamental rights as freedom of peaceful assembly. Thus, the Court admits the regulation of the applicant’s right to freedom of peaceful assembly has not been established by law. Summing up, there is no law setting a basis for limiting the right of peaceful assembly now in Ukraine.”
“I strongly condemn the killings and urge the Government and protesters to act to defuse tensions and to take swift action to find a peaceful solution to the ongoing crisis,” said Navi Pillay, the UN High Commissioner for Human Rights of the actions in Ukraine the week of 17 February. “I reiterate my call for respect for the right to peaceful assembly, as provided under international human rights law, to be respected. Ukraine needs a dialogue between these opposing voices that respects the country’s legal obligations, political commitments based on international human rights standards, and the recommendations made by the international human rights system. My Office stands ready to offer its assistance on possible reforms relating to human rights.”
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by Vadym Mishkoriz