Freedom of Expression and the death of journalist Gongadze AI 2001

[vanessavon]

Concerns in Europe (Country Entry): January-June 2001
Annual report entries; 2001, 2000, 1999, 1998, 1997
Ukraine before the United Nations
Human Rights Committee


Introduction

Ten years have passed since Ukraine gained independence in 1991, following the collapse of the Soviet Union. During the past decade the country has experienced a great deal of economic, political and social change. Ukraine falls short of meeting its international treaty obligations regarding human rights. In recent years the right of freedom of expression has also come under increased pressure from the Ukrainian authorities. The abduction and possible killing of the investigative journalist, Georgiy Gongadze, and alleged state involvement have brought Ukraine's human rights record further into question.

Amnesty International published its report on the eve of a review of Ukraine's implementation of the International Covenant on Civil and Political Rights by that treaty's monitoring body.(1) This review is due to take place during the 73rd session of the United Nations Human Rights Committee, beginning in October 2001. Amnesty International is concerned that Ukraine has failed to implement fully its treaty obligations under the International Covenant on Civil and Political Rights and has issued a briefing highlighting its concerns to the Human Rights Committee.(2) This report incorporates the briefing submitted to the Human Rights Committee and details Amnesty International's concerns relating to human rights violations in Ukraine since its fourth periodic review by the Human Rights Committee in 1995.

It is important to note that in the period June - July 2001 the Ukrainian parliament, Verkhovna Rada, adopted a package of ten laws on judicial and legal reforms, after several years of considerable debate. The new legislation, which is intended to bring Ukraine's legislation into conformity with Council of Europe standards, included a new Criminal Code and Criminal Procedure Code as well as a series of laws which amended existing legislation relating to the judiciary, procuracy, police and pre-trial detention. A Council of Europe Secretariat Delegation, which visited Ukraine between 26 - 29 August 2001, commenting on the package of laws, recommended: "... new legislation and amendments to existing laws adopted in June-July 2001 be transmitted to the Secretariat as a matter of urgency for an analysis of their compatibility with European norms and standards."(3) The Secretariat Delegation also stated: "... needless to add, the real value of these changes can only be made by an assessment of how, in practice, these laws are implemented."(4) Similarly, changes have recently been made to existing legislation, their impact on the human rights situation in the country remains to be seen.


What is the International Covenant on Civil and Political Rights?

The fundamental principles enshrined in the Universal Declaration of Human Rights are given a more precise legal form in two treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights. These three instruments (plus the attached protocols) are known as the International Bill on Human Rights. The provisions of the covenants and the protocols are binding on the states which have become a party to them.

The ICCPR guarantees a number of fundamental rights including the right to life; the rights to freedom of conscience, expression, and association; the right to be free from arbitrary arrest or detention; the right to freedom from torture and ill-treatment; and the right to a fair trial. It is this committee which, at its forthcoming Geneva session, will examine Ukraine's fifth periodic report on measures the state has taken to implement its obligations under the covenant.(5) In addition to reviewing Ukraine's written report, the committee will seek further details from Ukraine's representatives at the session before making public its authoritative comments and recommendations.



The possible "disappearance" of journalist Georgiy Gongadze

The lack of progress which has been made in determining who was responsible for the abduction and apparent killing of the independent journalist, Georgiy Gongadze echoed by various bodies which defend and promote press freedom, including the Parliamentary Assembly of the Council of Europe, the Organization for Security and Cooperation in Europe's (OSCE) Representative on Freedom of the Media, the Committee to Protect Journalists, and Reporters without Borders.(8)

In two Resolutions adopted in January and April 2001 the Parliamentary Assembly of the Council of Europe expressed concern about the apparent "disappearance" of Georgiy Gongadze and the failure of the Ukrainian authorities to investigate the incident, stating: "[t]he measures taken by the Ukrainian authorities and the Verkhovna Rada (parliament) to investigate the disappearance of the journalist Heorhiy Gongadze, and their efforts to do justice to all parties involved, should be considered a test for the freedom of expression and the functioning of parliamentary democracy in Ukraine. The Assembly voices its concern over the drawn-out manner in which the General Prosecutor's office of Ukraine has handled this matter."(9) The Parliamentary Assembly of the Council of Europe called on the Ukrainian authorities to "... conduct an expeditious, full and transparent investigation into the disappearance or death of Mr Gongadze, and to make known the results of this investigation as quickly as possible" and "... bring to justice those responsible for committing this crime".(10) It repeated these recommendations in April 2001, urging the Ukrainian authorities to take all necessary measures to discourage and curb attacks and threats against journalists and other media representatives (see the section of this report, on page 24, entitled 'Freedom of expression').(11)

The OSCE Representative on Freedom of the Media, Freimut Duve, has also commented on the investigation into the apparent "disappearance". In a Statement to the Permanent Council of the OSCE on 8 February 2001 he recommended: "[t]he Government of Ukraine should undertake a new effort to investigate the Gongadze case especially related to the identification of the body and to the circumstances around his disappearance. The possibility of starting such a new investigation should be explored, headed by a well-respected independent judge and involving foreign experts. The investigation should be transparent with information provided in a timely manner to the public."(12) The OSCE's human rights institution, the Office for Democratic Institutions and Human Rights (ODIHR) repeated this appeal in late September 2001. ODIHR Director GИrard Stoudmann stated: "[i]t is unacceptable that after so many months we still don't know anything about who was behind the murder of Mr. Gongadze".(13) Earlier in the year, on 20 April 2001, the OSCE Parliamentary Assembly jointly awarded Georgiy Gongadze the 2001 OSCE Prize for Journalism and Democracy with JosИ Luis LСpex de Lacalle, a Spanish journalist who was allegedly murdered by Euskadi Ta Askatasuna (ETA) in Northern Spain in May 2000.

Amnesty International considers incommunicado detention for anything but the briefest length of time as amounting to cruel, inhuman and degrading treatment, even when not accompanied by further abuse. Prolonged incommunicado detention, certainly for months, amounts, in Amnesty International's view, to torture as defined in Article 7 of the ICCPR. This is especially true in cases where isolation from the outside world is total, and the very fact of the person being held in custody is denied by the authorities. The victims of torture in such cases would be not only those who "disappeared" but their families as well, since the "disappearance" of a person is a cause of great suffering and hardship to their family members.(14) Amnesty International is certainly not alone in reaching this conclusion. "Disappearances'' constitute violations of the ICCPR and the UN Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (Convention against Torture). UN and human rights mechanisms such as the Human Rights Committee(15) and the Inter-American Court of Human Rights(16) have in the past also determined that ''disappearances'' constitute torture or other cruel, inhuman or degrading treatment of the families of the ''disappeared'' as well. The Special Rapporteur on Torture, Sir Nigel Rodley, recently concluded that "there is a trend towards recognizing that to make someone 'disappear' is a form of prohibited torture or ill-treatment, clearly as regards the relatives of the 'disappeared' person, and arguably in respect of the disappeared person him or herself [emphasis added]."(17) This ''trend'' should, in Amnesty International's view, be strengthened.

The case of Georgiy Gongadze
The whereabouts of 31-year-old Georgiy Gongadze became unknown late in the evening of 16 September 2000 when he failed to return home after leaving a friend's house in the capital, Kyiv. At the time Georgiy Gongadze was the editor of the Internet newspaper Ukrayinskaya Pravda (Ukrainian Truth), which is reportedly one of a few media outlets that have been highly critical of the government and its alleged links with corrupt business groups. On 3 November 2000 a decapitated body believed to be that of missing journalist Georgiy Gongadze was found in a shallow grave in woodland in the Tarashcha Rayon, not far from the capital, Kyiv.

The apparent "disappearance" of Georgiy Gongadze escalated into a fully-blown political scandal when, on 28 November 2000, the leader of the Socialist Party of Ukraine, Olexandr Moroz, accused President Leonid Kuchma of being implicated in the possible "disappearance". Olexandr Moroz claimed to have an audiotape recording in which President Kuchma can reportedly be heard discussing with other senior government officials how to silence Georgiy Gongadze. The audiotape recordings were reportedly made by a 34-year-old former officer of the Ukrainian State Security Service, Mykola Melnychenko, who is said to have surreptitiously digitally recorded around 40-50 hours of conversations involving the President from under a sofa inside the President's office while working there. Since making his allegations, Mykola Melnychenko has reportedly been charged by the Ukraine's prosecutor's office with: abuse of office; divulgence of state secrets; slander of a state official; and forgery and use of forged documents. In mid-April 2001, Mykola Melnychenko reportedly obtained asylum in the USA, which refused to extradite him to Ukraine. Georgiy Gongadze's 31-year-old wife, Miroslava Gongadze, also obtained asylum in the USA around the same time.

In the light of the seriousness of the allegations against President Kuchma the authenticity of the audiotape recordings became a subject of considerable debate. On 21 December 2000 Ukraine's parliament, Verkhovna Rada, passed a resolution requesting that the Council of Europe carry out an independent investigation into the authenticity of the audiotape recordings. The Vienna-based organization, the Independent Press Institute (IPI), and the US-based organization Freedom House, after attempting to establish the authenticity of the tapes, stated that, although they were unable to completely affirm authenticity, they decided it was highly unlikely that it was possible to manipulate 300 minutes of tape.(18)

Controversy also surrounds the efforts made to establish the identity of the decapitated corpse believed to be that of Georgiy Gongadze. According to the non-governmental organization Reporters without Borders, the results of a medical inquiry published on 11 January 2001, during which 16 different DNA tests were supposedly carried out in Ukraine and Russia, revealed that there was a 99.64 per cent chance that the body belonged to the missing journalist.(19) However, a DNA test conducted in Munich, Germany, in March 2001 contradicted these original findings, finding that muscle tissue supposedly taken from the body was not compatible with a blood sample taken from the mother of Georgiy Gongadze. In contrast, the results of a joint US-Ukrainian DNA test published in May 2001 re-confirmed the identity of the body as Georgiy Gongadze. Georgiy Gongadze's wife, Miroslava Gongadze, and mother have refused permission to bury the body, fearing that its identity has not been correctly established. At the end of May 2001 Ukraine's prosecutor's office reportedly ordered that the body be buried against the wishes of Georgiy Gongadze's family. However, this ruling was reversed at a later date.

The newly appointed Minister of the Interior, Yury Smirnov, created further controversy on 15 May 2001 when he stated that the criminal investigation into the "disappearance" of Georgiy Gongadze had been solved and the case was to be closed. According to the Minister of the Interior, the murder of Georgiy Gongadze had not been politically motivated and had been committed by two criminals, who themselves had been murdered by other criminals at a later date. The men accused of killing Georgiy Gongadze's killers were reportedly being held in police custody. Few people attached much credibility to the statement and the Minister of the Interior himself refuted his earlier statement as "premature" 10 days later on 25 May 2001.





Constitutional Watch
A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Ukraine - Spring found an embattled President Leonid Kuchma still in power. (For a description of the ongoing political crisis, see Ukraine Update, EECR, Vol. 10, No. 1, Winter 2001, and the articles on Ukraine in this issue.) Rather, the person now looking for a job is former prime minister Viktor Yushchenko; his government fell on April 26. Yushchenko's cabinet, which many observers considered the most successful government of postindependence Ukraine, had been under consistent attack for about a year. Before his appointment as prime minister in late 1999, Yushchenko had been chair of Ukraine's Central Bank. His reform-oriented policies in both positions were credited with curbing inflation and currency devaluation, and reviving the slow-paced economic reforms, as well as achieving the first signs of economic progress, including the first GDP growth in independent Ukraine's history.

The government's ouster became possible because of the formation of an unprecedented antigovernment coalition uniting two traditional foes: the radical leftist block of the Communist and Progressive Socialist parties and the propresidential coalition of parties representing the interests of business tycoons, widely known as the Ukrainian oligarchs. The Communists had consistently criticized the government for pursuing "antipopular" policies and for abiding by IMF requirements; they were backed, in this, by centrist and other factions that had previously supported the cabinet. Some of those factions, led by powerful businessmen, were trying to form an obedient coalition government. The reformist policies of Yushchenko's cabinet were considered by many of these leaders a serious threat to their business interests. The situation was further complicated by Yushchenko's popularity (polls indicated that he was Ukraine's most trusted politician) and by the wide support he had from opposition parties, who were also demanding Kuchma's ouster for his alleged involvement in the death of journalist Heorhiy Gongadze.


he right to freedom of expression:

ensure a thorough and impartial investigation into the possible "disappearance"
of Georgiy Gongadze and make known its findings. Those suspected of being
responsible for his apparent "disappearance" should be brought to justice in the
course of fair proceedings;
ensure prompt and impartial investigations into all other attacks against
journalists, or threats thereof, and bring those suspected of being responsible
to justice in the course of fair proceedings;
ensure that the Ukrainian news media is not subjected to arbitrarily-applied
legal measures, referred to in this report;
take all necessary measures in order to remove restrictions on freedom of
expression, which are incompatible under Article 19 of the ICCPR, such as the
complete decriminalization of libel;
ensure that state officials exercise restraint in resorting to civil proceedings
against journalists;
put an end to the practice of imposing professional bans on journalists;
explicitly and publicly commit themselves to promoting respect for human
rights, and to the protection of human rights defenders. They should ensure
that officials at every level of state collaborate with and facilitate the work of
human rights defenders.


The right to freedom of thought, conscience and religion:

introduce without delay legislative provisions to ensure that a civilian alternative
of non-punitive length is available to all those whose religious, ethical, moral,
humanitarian, philosophical, political or other conscientiously-held beliefs
preclude them from performing military service;
establish independent and impartial decision-making procedures for applying a
civilian alternative to military service;
ensure, after the introduction of a genuine civilian alternative service, that all
relevant persons affected by military service, including those already serving in
the army, have information available to them about the right to conscientious
objection and how to apply for an alternative service.


****

(1) Human Rights Committee.
(2) Ukraine: A Briefing for the Human Rights Committee, September 2001, AI Index:
EUR 50/002/2001.
(3) Doc. SG/Inf (2001) 27, Report of the Secretariat's Assistance and Information
Mission to Ukraine (26 - 29 August 2001), 6 September 2001 - paragraph 38.
(4) ibid - paragraph 37.
(5) Ukraine's report [UN Doc. CCPR/C/UKR/99/5, 16 November 2000] is available at:
http://www.unhchr.ch/tbs/doc.nsf.
(6) See UN Doc. CAT/C/55/Add.1, 17 November 2001 - paragraph 73 (a).
(7) According to the Ukrainian authorities 399 prisoners were under sentence of death
as of 1 April 1999 - UN Doc. CCPR/C/UKR/99/5, 16 November 2000 - paragraph 122.
(8) See the Reporters without Borders' (Reporters sans frontiХres) report, Mutilation of
the Truth: Inquiry into the murder of journalist GИorgiy Gongadze, 22 January 2001.
(9) Resolution 1239 (2001), Freedom of expression and the functioning of
parliamentary democracy in Ukraine, adopted by the Parliamentary Assembly of the
Council of Europe on 26 January 2001 - paragraph 2.
(10) ibid - paragraphs 6 (ii) and 6 (iii).
(11) Resolution 1244 (2001), Honouring of obligations and commitments by Ukraine,
adopted by the Parliamentary Assembly of the Council of Europe on 26 April 2001 -
paragraph 5.
(12) The OSCE Representative on Freedom of the Media, Statement to the Permanent
Council, 8 February 2001 - page 3.
(13) ODIHR press release, 21 September 2001.
(14) Georgiy Gongadze is married to Miroslava Gongadze and the couple have two
young children.
(15) Maria del Carmen Almeida de Quinteros, on behalf of her daughter, Elena
Quinteros Almeida, and on her own behalf v. Uruguay, Communication No. 107/1981
(17 September 1981), UN Doc. Supp. No. 40 (A/38/40) at 216 (1983) - paragraph 14.
(16) GodМnez Cruz Case, Compensatory Damages (Art. 63(1) American Convention on
Human Rights), Judgment of July 21, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 8 (1990) -
paragraphs 48 - 9.
(17) Nigel Rodley, The Treatment of Prisoners in International Law, second edition,
Oxford, Oxford University Press 1999 - page 261.
(18) Independent Press Institute Report, 2001, No.1.
(19) Reporters sans frontiХres - Mutilation of the truth: Inquiry into the murder of
journalist GИorgiy Gongadze, 22 January 2001 - page 11.
(20) International Helsinki Federation Annual Report 2001 - page 323.
(21) See Article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms and Articles 12 and 13 of the UN Convention against Torture
and Other Cruel, Inhuman, Degrading Treatment or Punishment.
(22) Article 28 of the Ukrainian Constitution states: "Everyone has the right to respect
for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading
treatment or punishment". See UN Doc. CAT/C/55/Add.1, 17 November 2000 -
paragraph 31 and paragraphs 83 - 85.
(23) UN Doc. E/CN.4/2001/66, 25 January 2001 - page 220.
(24) UN Doc. A/50/40, 3 October 1995 - paragraph 317.
(25) ibid - paragraph 328.
(26) The expert body which monitors the implementation of the Convention against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment by states
parties.
(27) UN Doc. A/52/44, 1 May 1997 - paragraph 131.
(28) ibid - paragraph 132.
(29) ibid - paragraph 144.
(30) The body of experts which monitors states parties implementation of their
obligations under the International Convention for the Elimination of All Forms of Racial
Discrimination.
(31) UN Doc. CERD/C/59/Misc.24 Rev.3, 16 August 2001 - paragraph 14.
(32) UN Doc. CERD/C/304/Add.48, 30 March 1998 - paragraphs 10 and 16.
(33) UN Doc. E/C.12/1/Add.65, 31 August 2001 - paragraph 12.
(34) ibid - paragraph 22.
(35) Doc. SG/Inf (2001) 27, Report of the Secretariat's Assistance and Information
Mission to Ukraine (26 - 29 August 2001), 6 September 2001 - paragraph 79.
(36) ibid - paragraph 79.
(37) Information supplied by the Kharkiv Group for Human Rights Protection.
(38) UN Doc. CCPR/C/UK/99/5, 16 November 2000 - paragraphs 321 - 322.
(39) UN Doc. A/50/40, 3 October 1995 - paragraph 317.
(40) UN Doc. A/52/44, 1 May 1997 - paragraph 138.
(41) ibid - paragraph 146.
(42) International Helsinki Federation Annual Report 2001 - page 324.
(43) US Department of State, Country Reports on Human Rights Practices 2000:
Ukraine - page 4.
(44) In this respect it is relevant to note provision 25 (1) of the United Nations Standard
Minimum Rules for the Treatment of Prisoners, which states: "The medical officer
shall have the care of the physical and the mental health of the prisoners and should
daily see all sick prisoners, all who complain of illness, and any prisoner to whom his
attention is specially directed".
(45) Amnesty International has yet to receive a response from the Prosecutor
General's Office.
(46) US Department of State Country Reports on Human Rights Practices 1999:
Ukraine, February 2000 - page 4.
(47) US Department of State Country Reports on Human Rights Practices 2000:
Ukraine, February 2001 - page 3.
(48) Information supplied by the Kharkiv Group for Human Rights Protection.
(49) Disciplinary battalions are special military prisons with very strict regimes.
(50) UN Doc. A/52/44, 1 May 1997 - paragraph 136.
(51) UN Doc. CCPR/C/UKR/99/5, 16 November 2000 - paragraphs 224, 226 and 245.
(52) US Department of State, Country Reports on Human Rights Practices 2000:
Ukraine, February 2001
- page 4.
(53) ibid - page 4.
(54) UN Doc. A/50/40, 3 October 1995 - paragraph 318.
(55) ibid - paragraph 328.
(56) UN Doc. A/52/44, 1 May 1997 - paragraph 137.
(57) ibid - paragraph 149.
(58) UN Doc. CCPR/C/UKR/99/5, 16 November 2000 - paragraph 238.
(59) For a summary of the recommendations see Doc. JOINT PROGR. Proj. UKR
V.B.4 (97) 1, Joint Programme between the Commission of the European
Communities and the Council of Europe for legal system reform, local government
reform and the transformation of the law enforcement system in Ukraine: Assessment
of the Ukrainian Prison System, January 1997 - pages 79 - 92.
(60) Doc. 8272, Honouring of obligations and commitments by the Ukraine,
Parliamentary Assembly of the Council of Europe, 2 December 1998 - paragraph 83.
(61) Doc. 9030, Honouring of obligations and commitments by the Ukraine,
Parliamentary Assembly of the Council of Europe, 9 April 2001 - paragraph 54.
(62) See the special Amnesty International report on conscientious objection, Out of
the margins: The right to conscientious objection to military service in Europe, April
1997, AI Index: EUR 01/02/97.
(63) UN Doc. CCPR/C/UKR/99/5, 16 November 2000 - paragraph 456.
(64) International Helsinki Federation Annual Report 2001 - page 326.
(65) UNIAN news agency 28 November 2000.
(66) See Resolution 1244 (2001), Honouring of obligations and commitments by
Ukraine, adopted by the Parliamentary Assembly to the Council of Europe on 26 April
2001 and past country reports on Ukraine by the Committee to Protect Journalists
and Reporters without Borders.
(67) US Department of State, Country Reports on Human Rights Practices 2000:
Ukraine, February 2001
- page 3.
(68) ibid - page 4.
(69) Current Situation of Media, March 2000 - page 9.
(70) CPJ protest letter 10 July 2001.
(71) CPJ 2001 news alert, 17 July 2001.
(72) Doc. SG/Inf (2001) 27, Report of the Secretariat's Assistance and Information
Mission to Ukraine (26 - 29 August 2001), 6 September 2001 - paragraph 95.
(73) Resolution 1244 (2001), Honouring of obligations and commitments by Ukraine,
adopted by the Parliamentary Assembly of the Council of Europe on 26 April 2001 -
paragraph 4.
(74) ibid - paragraph 5.
(75) Resolution 1239 (2001), Freedom of expression and the functioning of
parliamentary democracy in Ukraine, adopted by the Parliamentary Assembly of the
Council of Europe on 26 January 2001 - paragraph 5.
(76) Resolution 1244 (2001), Honouring of obligations and commitments by Ukraine,
adopted by the Parliamentary Assembly of the Council of Europe on 26 April 2001 -
paragraph 5.
(77) Doc. SG/Inf (2001) 27, Report of the Secretariat's Assistance and Information
Mission to Ukraine (26 - 29 August 2001), 6 September 2001 - paragraph 98.
(78) ibid - paragraph 40.
(79) US Department of State, Country Reports on Human Rights Practices 1999:
Ukraine, February 2000 - page 11.
(80) OSCE Representative on Freedom of the Media, Freimut Duve, Report to the
Permanent Council, 30 March 2000.
(81) US Department of State, Country Reports on Human Rights Practices 2000:
Ukraine

[nikolai]

I think that many people in Ukraine don't understand what human rights are, and they don't believe in respecting such rights.

This is the root of the problem there. And no laws written on paper are going to change that.

Some years ago the Soviet Union's government also had laws for protection of people's rights. They've signed international treaties guaranteeing basic human rights.
But none of these laws or treaties meant anything to low-level government officials who dealt with the people in every day life. Most of them probably haven't even heard about those rights written down somewhere.

In time, the people in Ukraine will probably learn more about their rights and will demand that their government respect such rights. But I am afraid that this learning will take a long, long time.

[johncullen]

I think the only way out of the quagmire of human rights failures in Ukraine is to have all of the people, men women, and children organise and turn on their oppressors permanently, day in day out. The oppressors are in the minority and the oppressed are in the majority. the problem to is that there is no history in Ukraine of democracy